author: Brad well, J.:—

text:
      (County Court of Cook County.)

    Gertrude Eichhold vs. Isaac Greenebaum Executor of the last will of Michael Eichhold, deceased.
    (1869.)
    1. Executors and Administrators — Investment of 'Funds — Pay- ■ ment of Legacies — Power of County Court. The county court has the same power to compel an executor to pay a legacy or invest funds belonging to a legatee so that they may draw interest, that a court of chancery has.
    2. Same — Derivation of Powers of County Court. The county court derives its powers in this regard from that article of the Illinois constitution which provides that the "jurisdiction of said court shall extend to all probate matters.”
    3. Executors and Administrators — How Accountable for Interest. Prima facie an administrator or executor is not chargeable with interest for the first year, and thereafter he is :prima facie chargeable with interest on all money in his hands not necessary to pay claims and expenses. He is in either case chargeable with interest on money of the estate which he himself uses or interest which he actually does receive.
    4. Administration of Estates — General Specific Legacies — Payment of Interest Thereon. A specific legacy draws interest from the death of the testator; a general from the time it is payable except when a father bequeaths it to to his infant child ■ and there is no other means to support it, or where a wife receives It in lieu of dower or a creditor receives it in payment of an antecedent debt. In these latter cases, the general legacy draws interest from the death of the testator.

      5. Administration of Estates — Interest on General Legacies —Where Applied. If an executor invests a general legacy and. receives interest thereon, the interest, except in the three cases before mentioned, goes into the residuum of the estate and not to the general legatee.
    6. Administration of Estates — Statute of Wills — Payment of Legacies- — Bond. Under the Statute of Wills of Illinois, a specific legacy is deliverable at any time, a general, one year from the death of the testator if the estate is free from debt or there is an abundance of funds to pay the debts and legacies upon the legatee executing a sufficient bond with security. The amount of the bond lies in the sound discretion of the court in. view of all the circumstances of each particular case.
    Petition for payment of legacy. Heard before Judge Thomas B. Bradwell. The facts are stated by the court.
    Statement.
    The testator, Michael Eichhold, died in or about the month of September, 1866, leaving his will, which was admitted to probate on the 24th day of October, 1866, in this court, and letters testamentary issued to the respondent.
    The testator, after providing for the payment of his debts and funeral expenses, bequeathed to his wife, Gertrude Eiehhold, “the sum of one thousand dollars,” and one-third of the residue of his estate, and the other two-thirds to his son Abraham.
    The said Gertrude Eichhold has filed her petition in this court, alleging that there has been an adjudication of claims; that the whole amount of claims against the estate does not exceed two hundred dollars; that there is over seven thousand dollars in money now in the hands of the executor, and that the same can now be loaned on good security at ten percent., and prays that the executor may be compelled to pass over to her the amount she is entitled to as legatee or that the same may be loaned out at interest by the executor, and that such interest accruing may be paid over to her for her support.
    The executor answered the petition, admitting the material facts stated therein to be true, but claimed that the money might yet be needed for the payment of debts against the estate.
    Two witnesses were sworn, who stated that they had known the deceased well for years, and that they did not believe he owed one cent at the time of his death.

      Messrs. Gookins & Roberts, for the petitioner,
    made the following points:

      First — One year is generally allowed the executor to ascertain the situation of the estate before he can be compelled to pay a legacy. 2 Williams on Executors, 1,191.

      Second — But this allowance is merely for convenience, in order that the debts may be ascertained.
    Therefore, if the condition of the estate permits, the executor has power to pay sooner. Id. 10, ves. 13. Pearson v. Pearson, 1 Sch. and Lef. 12.

      Third — But if it clearly appears that a surplus will remain, the court will, by anticipation, direct proportionable . payments to legatees. 2 Wiliams on Executors, 1,191.

      Fourth — However it may be in respect to the payment of legacies, there is no doubt of the power to direct the money to be invested at any time, and this is based upon the general equity powers of the court. 2 Williams on Executors, 1,200 et seq.

      Messrs. Runyan & Avery, for respondent, claimed:

      First — That the county court had no power to order a legacy paid within two years, and if such power existed it could only be exercised by a court of chancery.

      Second — That the executor could not be compelled to im vest the money or to account for the interest within a year from the date.of his letters.

      Third — That the interest that might be made on the $6,000 the first year would not belong to the respondent, but would go into the residuum.
   Opinion.

Brad well, J.:—

In regard to the power of the court to grant the relief ' prayed for in this case, there is no doubt of the power of a court of chancery, at any time when the estate is in a proper condition, to compel the executor to put' the funds at interest, or deposit them in a savings bank where they may accrue interest pending the settlement of the estate, and until legatees may come and claim their portions.

I am clearly of the opinion that the county court has the same power to compel an executor to pay a legacy, or invest funds belonging to legatees (when it has all the parties interested in the fund before it,) that a court of chancery has.

This results from the general power of the court over the subject matter as given in the constitution of the state and the laws passed under it. The constitution says, (article 5, section 18,) “the jurisdiction of said court shall extend to all probate jurisdiction.” If the legislature should today repeal all statutes in regard to probate jurisdiction, still the county court could go on legally under the common and ecclesiastical law, grant probate of wills, and settle estates. In re Gregory’s Administrator, 19 Ohio, 357; Lockhart v. Public Administrator, 4 Bradf. S. R. 21; Campbell v. Logan, 2 Bradf. S. R. 90; Blackburn et al. v. Hawkins, 1 Eng. 50.

Prima facie, an administrator or executor is not chargeable with interest for the first year, but if during that time he uses the money himself, or receives interest for it, he must be charged with all he receives or makes by the use of the money. Prima facie, after one year he is chargeable with interest on all money in his hands not necessary to pay claims and expenses, and even in his first yearly account and report it is his duty to show that it contains a true statement of all interest received and how the funds of the estate have been kept.

He must also, during the settlement of the estate, keep a sufficient amount of funds on hand fi> pay all claims as they become due. If the money of the estate remains uninvested and claims are allowed against it, they draw interest at 6 per cent, land the estate loses $12 on each hundred each year. In this way a solvent estate may be made insolvent.

No absolute rule can be established for determining when an executor must be charged with interest. Each case must depend on its own particular circumstances. Not so in regard to legacies. Betzer’s Executor v. Hahn et al., 14 S. & R. 232; Rowan v. Kirkpatrick, 14 Ill. 1; Ogilvie v. Ogilvie, 1 Bradf. S. R. 356; Schieffelin v. Stewart et al., 1 Johns. C. 620.

The six thousand dollars bequeathed to the petitioner is a general, and not a specific, legacy. A specific legacy carries interest from the death of the testator; a general legacy draws interest only from the time it is payable, except when a father bequeaths to his infant child and makes no other provision for its support; a husband to his wife in lieu of dower; or where a legacy is given for a preexisting debt, in which cases they draw interest from the death of the testator. It was at one time held that the widow was within the exeep: tion, but it is now settled that she is not. Martin v. Martin, 6 Watts, 67; 1 Roper on Legacies, 379; Launder on Legacies, 430-2; Lomax on Executions, 154; Corbin v. Wilson, 2 Ash. 178.

Treating the subject independent of our statute, a specific legacy, is so much carved out of the testator’s estate, and set off for the legatee, that it may be delivered to him at any time after it is determined. It will not be necessary to appropriate it for .the payment of the debts of the deceased. If it is a cow, and she has a calf, before the delivery, the calf belongs to the legatee. If it is a note and interest is paid to the executor on it, the interest belongs to the legatee and does not go- into the residuum.

It is not so with a general legacy; a general legacy draws no interest until due, and with the exception named above, is not due till one year after the death of the testator.

If invested by the executor before due the interest received thereon goes into the residuum and not to the general legatee. Hammond v. Hammond, 2 Bland Ch. 306; Wood v. Penoyre, 13 Ves. 326; Sullivan v. Winthrop et al., 1 Sumner R. 1; Alnutt on Wills, 375; Garthshore v. Chalie, 10 Ves. 1; Pearsons v. Pearsons, 1 Sch. and Lef. 10; Mathews on Executors, 183; Roper on Legacies, 1253; Swinbum on Wills, .part 1, page 36; 4 Buens Ecel. Law, 511; 2 Bedfield on Wills, 569, and notes, where this whole subject is ably discussed by the learned author.

Our statute of wills, section 127, while it does not change the time of payment of legacies from that as laid down by the authorities above, provides that “whenever it shall appear that there are sufficient assets to satisfy all demands against the estate, the court of probate shall order the payment of all legacies mentioned in the will of testator. The specific legacies being first satisfied.” The 129th section, provides that executors shall not be compelled to pay legatees until a refunding bond is given. Under this statute a specific legacy may be delivered at any time, and a general legacy at the expiration of one year from the death of the testator, if the estate is free from debt, or if there is an abundance of assets to pay the debts and legacies, upon the legatee executing the required bond with security. The county court'has sufficient power over the executor to compel'him to deliver the legacy, but should not make its order upon probabilities or speculate upon the chances. It should be duly shown that the estate is in such a condition that no one will or could be injured by ordering the legacy delivered. Alnutt on Wills, 375.

In England and Virginia, under statutes like our own,, it has been held that the amount of security to be demanded by the executor is to be determined by the sound discretion of the court, governed by the circumstances, and the length of time which has intervened, the means which have been used to give notice to creditors and the probability of outstanding debts.

Chief Justice Marshall says, if, after due publication and notice, creditors will still lie by, all courts ought to protect the executor from any claim beyond the indemnity which a court of competent jurisdiction has directed. Kirkpatrick et al. v. Gibson, 2 Brock. 388. To hold then that the widow can receive neither legacy nor interest until the end of the year would be to say that the richest man might die and make what he supposed an ample provision for his wife, and still she would have to starve or live upon her friends for a year or more, in consequence of an executor seeking to weave a Web of technicalities around her husband’s estate. Such is not the law. It is ordered that the executor within ten days from this date, pay to the petitioner $1,500 upon her executing the usual refunding bond in the penal sum of $1,500, with security to be approved by the court, without prejudice to the right of the residuary legatee, to be heard hereafter upon the question of interest, and that not less than $4,000 of the money now in his hands be placed under the direction of the court, where it will draw interest.

       Fed. Cas. No. 7,848 — Ed.


source: Caselaw Access Project

author: Drummond, J.:—

license: Public Domain

text:
      (United States Circuit Court, Northern District of Illinois.)
    Drake vs. W. E. Rollo, Assignee of the Merchants’ Insurance Company.
    (June, 1872.)
    Bankruptcy — "Mutual Debts and Credits” — Unmatched Debts —Right to Set Off — Jurisdiction of Equity. Where an insurance company becomes insolvent and goes into bankruptcy owing an assured money on a loss, the latter has the right to call on a court of equity to set off against his claim, money which he has borrowed of the insurance company but is not yet due. Such a case is one of “mutual debts and credits” under section 20 of the bankruptcy act of 1867.
    Bill in equity. Heard before Judges. Drummond and Blodgett. The facts are stated in the opinion of the court.

      Hitchcock, Beckwith, Shorey and G. W. Smith, for complainant.

      Fence, Hoyne, Thompson md S. W. Fuller, for respondent.
   Drummond, J.:—

On the first of June, 1868, the plaintiff borrowed of the insurance company seventy-five thousand dollars, twenty-five thousand payable on the first of June, 1872, and the remainder on the first of June, 1874. Several policies were taken from the company by the plaintiff to indemnify him for loss of property by fire, amounting in all to $17,000, and on which there was a total loss by the fire of October 9th, 1871. On the 31st of October proceedings were commenced against the company, under the act of this state to wind up insolvent insurance companies.

In November a petition in bankruptcy Avas filed, and on the 18'th of December a decree of bankruptcy was entered against the company.

Under this state of facts, the plaintiff in April last filed a bill, claiming to set off the amount due on the policies against the debts to become due from him to the company.

And the only question in the case is, whether the set-off can be allowed. And we are of the opinion that the plaintiff is entitled to the set-off he claims. It depends upon the 20th section of the bankrupt law,. That section is as follows:

“That in all eases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid; but no set-off shall be allowed of a claim in its nature not proveable against the estate: Provided, that no set-off shall be allowed in favor of any debtor to the bankrupt of a claim purchased by or transferred to him after ‘the filing of the petition.”

It is true in this ease the plaintiff obtained part of the means which the company possessed, to meet its liabilities in case of loss or insolvency, and by permitting a set-off, it enables the plaintiff to receive payment in full of his claim, while the general creditors of the bankrupt company are only partially paid, and thus he becomes a preferred creditor. But it is a preference growing out of the business relations of the parties as they stood at the time of the fire which rendered the company insolvent.

As soon as the loss happened there was the relation of debtor and creditor, and there were no special circumstances qualifying that relation. When the plaintiff complied with the conditions of the policy after the loss, and furnished his proofs, as soon as the specified time had elapsed it became a subsisting debt against the company, and, at the same time, the plaintiff was the debtor of the company for money pay- ' able in the future. It was then a case of mutual debt and credit, within the meaning of the twentieth section above cited. The parties here trusted each other, and when the plaintiff was called on to meet his indebtedness, he would have the right to retain the amount of the loss and pay the balance. The amount thus retained in one sense he does not owe, because the law seizes it in his hands if he so wills, and by its own force extinguishes the debt. And the money loaned not being due at the time the bill was filed, and constituting a mutual credit, it is competent for the plaintiff, the company being insolvent, to call on a court of equity to allow the set-off.

Kostor v. Easen, 2 Maule & Selwyn, 112; In re Globe Ins. Co., 2 Edw. Chan. 625; Osgood v. DeGroat, 36 N. Y. 348; Holbrook v. Receivers, etc., 6 Paige, 220; Ex parte Prescott, 1 Atk. 230; Jones v. Robinson, 26 Barb. 310; Bradley v. Angel, 3 N. Y. 475.

Note. — See Fed. Cas. No. 4,066. — Ed.


author: Walker, J.:—

text:
      (Circuit Court of Cook County.)

    People of the State of Illinois ex rel. John Koelling vs. John C. Cannon, Thomas F. Judge and Abel A. Bach, Constituting the Board of Election Commissioners of the City of Chicago, and Isaac N. Powell, Chief Clerk of said Board.
    (March 24, 1908.)
    jl. Elections — Jurisdiction of Law and Chancery Courts in Election Matters. If a public officer charged with the administration of an election law refuses to obey its mandate, the party injured is not without remedy, not in a court of chancery, however, but in a court of law.
    2. Public Policy Act — Jurisdiction of Circuit Court in Matters ■ Arising Thereunder — Decision of the Election Board — Effect of Section 10 and 16 of Australian Ballot Law. A decision of the board of election commissioners, that a question is not a proper one to be submitted to the electorate in accordance iwith the provisions of the public policy act, is not a finality. Section 18 of the Australian ballot act, incorporated into the public policy act by reference merely refers to the manner of printing the ballots and section 10 of the same law gives finality only to the election commissioner’s decisions in regard to nomination papers and certificates.
    3. Mandamus — Existence of Another Adequate Remedy. The fact that the petitioners may have an adequate remedy by certiorari is no defense to an action of mandamus as in Illinois the existence of another remedy is never a defense to the action of mandamus, if mandamus is proper.
    ■4. Public Policy Act — Duty of Election Commissioners. If the requisite number of petitioners present a “question of public policy” under the public policy act, it is clearly the duty of the election commissioners to put that question on the ballot. If the question is not one of public policy the commissioners have the right to keep it off.
    •5. Same — What is not a Question of Public Policy. A question is not one of public policy which embodies a plan of action in violation of law or against the enforcement of the law.
    fi. Same — Refusal of Election Board to Put Question of Public Policy on Ballot — Remedy by Mandamus. Assuming that the board has a certain amount of discretion in determining the question of whether a proper petition has been presented to them, nevertheless they are guilty, in legal contemplation, of an abuse of that discretion, if in fact they do deny a proper petition, and mandamus will lie in such a case to compel them to submit the question.
    7. Same — The Question in This Cash The question: “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?” is a proper one to be submitted to the voters, under the public policy act, as it cannot by any reasonable construction be held to embody a plan of action in violation of law as contended.
    Petition for mandamus. Heard before Judge Charles M. Walker. The facts are stated by the court.

      Levy Mayer and Marry Rubens, for petitioner.

      Walter L. Fisher and Frank D. Ayers, for respondents.
    Statement.
    This is a petition in the name of the people of the state of Illinois on the relation of John Koelling, for a writ of mandamus against John C. Cannon, Thomas F. Judge and Abel A. Bach, constituting the Board of Election Commissioners of the city of Chicago in said county, and Isaac N. Powell the clerk of said board, respondents, praying that a writ of ■mandamus issue, directed to them, commanding them to place1 before the voters of said city of Chicago in the manner provided by law, upon a separate ballot at the ensuing city election to be held in said city of Chicago on Tuesday, April 7,. 1908, the following question:
    “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?”
    The petition sets forth that February 7, 1908, the said relator delivered to said respondents and filed with them and on said date received their receipt therefor, a petition in words and figures as follows:
    “Chicago, Ills., January 31, 1908.
    To the Board of Election Commissioners of the City of Chicago.
    Gentlemen: — We, the undersigned, legal and registered voters of and residing in the city of Chicago, Cook county, 111., hereby specifically petition you to place before the voters of said city in manner provided by law upon separate ballot at the ensuing city election to be held Tuesday, April 7, 1908, the following question:
    “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?”
    That said petition was at the time of its filing, as aforesaid, and still is signed by 174,146 legal and registered voters of and residing in said city of Chicago, constituting more than 48 per cent of the total registered voters of said city; that the relator was upon said date and still is a legal and registered voter of said city and that he signed said petition before it was filed and that his signature is still attached thereto. That March 11, 1908, said Cannon, Judge and Bach, being the board of election commissioners as aforesaid, by a vote of two to one, said Cannon and Bach voting in the affirmative, and said Judge in the negative, entered of record an order refusing said petition and declining and refusing to place before the voters of said city in manner provided by law upon a separate ballot at said ensuing election the question contained in said petition: “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?” and still refuse to- place said question before the voters of said city at said election to be held as aforesaid.
    That said action and conduct of said board of election commissioners is a violation of law and contrary to their legal duty and oath of office and by means thereof the said registered voters who have signed said petition, including the relator, are prevented from having submitted to and placed before the voters of said city in manner provided by law the said question at said election to- be held as aforesaid which question said registered voters, including the relator, are justly and lawfully entitled to have submitted to the voters of said city in the manner and at the time as set forth in said petition, and which question calls for the consideration of an opinion on a question of public policy at a general election in the manner and form as prescribed by the statutes of the state of Illinois. The respondents have demurred to said petition and the cause came on to be heard upon their demurrer.
   Opinion.

Walker, J.:—

In support of the demurrer, the respondents first took the broad ground that the election commissioners, in matters of this kind, were subject to no judicial authority whatever, either in law or chancery, citing several cases supporting their contention so far as the jurisdiction of a court of chancery is concerned. There is no question that chancery being concerned only with property and civil rights lacks jurisdiction in matters involving rights purely political. But in a recent, ease, reaffirming this principle, the supreme court of this state said:

“If a public officer charged with political administration has disobeyed or threatened to disobey the mandate of the law, whether in respect to calling or conducting an election, or otherwise, the party injured or threatened with injury in his political rights is not without remedy. But his remedy is in a court of law, and not in a court of chancery. ’ ’ People v. Barrett, 203 Ill. 99, 105, quoting Fletcher v. Tuttle, 151 Ill 41.

Mandamus is a law action, and this court sits as a court of law in hearing it. Therefore, if petitioners have a remedy in this proceeding, it is properly here.

Counsel, however, contend that by the statute known as the Australian Ballot Law, passed in 1891 (Laws 1891, p. 107), the remedy at law is ousted and final jurisdiction over the question involved in this ease vested in the election commissioners, by virtue of sections 10 and 16 of said statute;”

Section 6 of the statute relates to “nomination papers;”
Section 7 to “certificates to be filed;”
Section 10, so far as it is said to apply here, is as follows:
1 ‘ Sec. 10. The certificates of nomination and nomination papers being so filed and being in apparent conformity with, the provisions of this act, shall be deemed to be valid unless objection thereto is duly made in writing. Such objections or other questions arising in relation thereto in the case of nomination of state officers shall be considered by the secretary of state and the auditor and attorney general and the decision of the majority of these officers shall be final. =::= =::= * jn any eage wpere gUCh objection is made, notice shall forthwith be given to the candidates affected thereby addressed to their places of residence as given in the nomination papers and stating the time and place when and where such objections will be considered; provided, that in cities, towns, or villages having a board of election commissioners such questions shall be considered by such board and its decision shall be final.”

Section 16, also passed in 1891 (as amended in 1899), is as follows:

“Sec. 16. "Whenever a constitutional amendment or other public measure is proposed to be voted upon by the people, the substance of such amendment or other public measure shall be clearly indicated on a separate ballot, and two spaces shall be left upon the right hand margin thereof, one for the votes favoring the amendment or public measure, to be desiignated by the word ‘Yes,’ and one for votes opposing the amendment or measure, to be designated by the word ‘No,’ as in the form herein given.” (Giving form.)

‘ ‘ The elector shall designate his vote by a cross mark, thus (X). The said separate ballot shall be printed on paper of sufficient size so that when folded once it shall be large enough to contain the following words, which shall be printed on the back: ‘Ballot for Constitutional Amendment,’ or the name of any and all public measures then to be voted on. This ballot shall be handed to the elector at the same time as the ballot containing the names of the candidates, and returned therewith by the elector to the proper officer in the manner described by this act. All provisions of this act relating to ballots shall apply to this separate ballot.” The act providing for the submission of questions of public policy to the electors was passed in 1901 (Laws of 1901, p. 198), and is as follows:

“No. 1. Be It Enacted, etc., That on a written petition signed by twenty-five per cent of the registered voters of any incorporated town, village, city, township, county or school district; or ten per cent of the registered voters of the state, it shall be the duty of the proper election officers in each case to submit any question of public policy so petitioned for, to the electors of the incorporated town, village, city, township, county, school district or state, as the case may be, at any general or special election named in the petition; provided, such petition is filed with the proper election officers in each case not less than sixty (60) days before the date of the election at which the question or questions petitioned for are to be submitted. ’ ’

Not more than three propositions shall be submitted at the same election, and such proposition shall be submitted in the order of its filing.

“No. 2. Every question submitted to electors shall be printed in plain, prominent type, upon a separate ballot in form required by law, the same as a constitutional amendment or other public measure proposed to be voted upon by the people.”

Counsel for respondents contend that there is no remedy at law to interfere with their decision as to what is or is not a question of public policy, and hence, whether a proposed question sufficiently signed for and filed, as required by law, should or should not be put upon the ballot; that the finality given their decisions by section 10 aforesaid in relation to “Certificates of Nomination,” “Nomination Papers” and “Objections” thereto must be held to apply to and govern the Public Policy Act by virtue of section 2 of that act, and by necessary implication of law as fully as if expressly provided therein. “Necessary implication by law” means so strong a probability of an intention that a contrary intention cannot be supposed. Section 2 provides for nothing more than the printing and form of the ballot the same as a constitutional amendment required by section 16. Section 16, after providing for the form of the ballot, says, “All provisions of this act relating to ballots shall apply to this separate ballot. ’’ Therefore, and therefrom, a “necessary implication of law, ’ ’ is sought to be deduced that section 10 relating to- nomination certificates, nomination papers and objections thereto, and making the commissioners’ decision final thereon, applies to the public policy act and makes their decision final as to whether a question, as a question of public policy, is proper to be put upon the ballot or not.

It may be noted that section 6 and 7 refer to “nomination papers” and “certificates of nomination,” and that section 10 following is limited in terms to them and particularizes them and the “objections” to them and nothing more as the questions upon which the decision of the board shall be final. I am unable to perceive how or why it can give the board the final decision as to what is or is not a constitutional amendment, or what is' or is not a question of public policy, simply because the law relating to these matters contains provisions prescribing the form and printing of the ballots and. make the other provisions of the law “relating to ballots” merely, apply. Section 10 has nothing'to do with ballots. It seems plain that it is a special provision covering the special objects named and cannot come under the principle that “whenever the provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law and implication.” There are other provisions which in my opinion cannot permit the public policy act to be reconciled as subject to the terms of section 10, among them the giving of notice required upon objection filed. Under section 10, when objection is made, the board is required to- give notice to the parties affected, addressed to their places of residence as stated, notifying them of the time and place of hearing.

Hence one objection might require the absurdity of sending notices as in this case to 174,000 petitioners, for they are the parties and the only parties here affected.

While these reasons seem to me sufficient answer to meet the contention of counsel that the election commissioners have the final decision whether a question properly is a question of public policy or not and whether they will submit it to the people or not. In my opinion a better and the true answer is this: That the legislature, for good reason, hereinafter stated deliberately, meant that they should not have such power, and therefore intentionally withheld it.

The doctrine of implications does not go to the extent of supplying things which were intentionally omitted by the legislature.

In view of the multitude of political offices to be filled and the frequent attendant strife, there may be sound policy, good reason and common sense in having final decisions upon contested nominations by a board of election commissioners at the earliest possible moment, but there can be no good reason, policy or sense in committing to such a board absolutely final decision upon a question directly affecting one of the fundamental principles of government, the constitutional right of the people “to make known their opinions to their representatives.” Const, see. 17, art. II. Bill of Rights, and the Public Policy Act, is a formalized and enacted method of making the people’s opinions known.

Such absolute and unconditional finality of decision vested in such a board, so far as the point in question is concerned, would place the board above the supreme court of the state, make the commissioners final interpreters and arbiters of the constitution itself, and render it possible for an unscrupulous board to permit only such question of constitutional amendment — public policy and public measures — to be submitted to the people as it might approve, or, indeed, to withhold them from the people altogether and throttle their voice at will.

That is why I say that the legislature surely never intended that such should be the law. A contrary holding is too preposterous to be suggested, much less to be endured.

Respondents contend that if there is a remedy the proper one is by way of “certiorari.” This is not a proceeding for a writ of certiorari, nor is the court concerned whether certiorari would or would not be a better remedy. The statute provides:

“The proceedings for a writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy.” 2 Starr & Curtis, Rev. Stat. ch. 87, sec. 9.

The question then is: Does mandamus lie? It does, if the petitioners show that they have a clear legal right to have the thing done which they ask to be done and that it is the clear legal duty of the respondents to do it.

In other words, if the petitioners presented to the board of election commissioners a “question of public policy” under the public policy act, as alleged in the petition it is clearly the duty of the board to put that question upon the ballot. If not, the board did right in refusing the petition.

The form of the question petitioned to be submitted is: “Shall all places where liquor is sold or given away in this city upon Sunday be closed upon that day?”

The majority commissioners correctly say, in their decision attached to the petition as an exhibit, that the intent of the public policy statute “is to procure an expression of public sentiment upon some policy of government for the purpose of bringing about through the proper channel, either the enactment of a new law or the repeal, modification or amendment of one already upon the statute books;” they further say: 1 ‘ That there is now in full force and effect in this state a statute prohibiting all such plaeés remaining open Sundays;” that a negative vote on the question “would mean that the voters had declared that the saloons should remain open regardless of the law;” that the question proposed “is not whether the law should be repealed; it is not whether the law should permit saloons to remain open on Sundays; but it is whether a law, now in force shall or shall not be obeyed. ’r I again agree with the commissioners when they hold as they do that “a question cannot be one of public policy which embodies a plan of action in violation of law;” or “against the enforcement of the law.” They also hold that the proposed question does so embody such plan of action and deny the petition for that reason.

On the other hand, the petitioners contend that the question clearly is one of public policy as above defined by the commissioners themselves, and can by no reasonable construction, in all the circumstances, be construed to be anything else; and,'therefore, it is entitled to be put upon the ballot. Upon the correct determination of this issue, depends the petitioners’ right to the writ.

The petitioners in argument contend that in construing their motives, as the commissioners did, they took no consideration of many well known local conditions; the fight for the constitutional amendment providing for a charter to give Chicago home rule, the new charter itself and its passage by the legislature giving Chicago home rule in all matters of domestic concern, but one, expressly withholding it from the city so far as the question of Sunday opening or closing was concerned; and the overwhelming defeat of the charter due in most part, it is claimed, to that fact. The petitioners urge their right to an expression of the sentiment of the community as to whether this city is in favor of an open Sunday or a closed one for the purpose of indicating- their desire to their representatives in the next legislature, so that they may have the benefit of such expression at its next session, and give the people home rule on this question if they express a desire to have it; that petitioners’ agitation for and intention to seek such legislature were and are matters of common knowledge in the community and well known to said commissioners; that all these considerations deliberately have been ignored by said commissioners who have gone out of their way to put a forced, wrong, and in the circumstances, wholly unreasonable construction upoii the proposed question, neither in any way expressed therein nor reasonably to be inferred therefrom and upon that construction have declared the question to be not a question of public policy at all.

It is conceded that if the question presented was not a question of public policy the petition was properly refused.

If it did present a question of public policy, the board had no right to deny it.

Assuming, as contended, that the board had a certain amount of discretion in determining the question, nevertheless if in doing so it has refused a petition which does present a question of public policy, it is in contemplation of law guilty of an abuse of that discretion. That mandamus will lie in such ease is not denied and needs no citation of authorities.

The construction put by the board upon the proposed question is hereinbefore stated.

It must be and indeed is admitted that the question in itself and standing alone without reference to the existing statute is properly a question of public policy.

Respondents’ counsel say that probably it would have been ordered on the ballot but for the contentions of the objectors who appeared against it and whose- objections were considered.

The law does not contain any provisions for the filing or hearing of objections to proposed questions of this kind, public measures or constitutional amendments. However, in a proper case, I see no reason why objectors may not appear before the board as amici curiae, so to speak, and make known their objections to aid it in keeping free from error; and it is within the power of the board to frame reasonable rules to that end.

In view of all the surrounding circumstances, the conclusion seems irresistible that the board has construed and treated this question as a purely academic proposition; without giving the 174,146 petitioners due benefit of presumptions that exist in their favor, among them the presumption of “good intent as against bad intent;” the presumption “against absurdity,” which merely means the presumption in favor of ordinary common sense; the presumption “against doing a vain or useless thing,” which in this case would be planning action for the nonenforcement of a law, which, as everybody knows, is not enforced now; and also without looking at the question in the light of contemporary local history and conditions above referred to, unless as against all this it still can be said that the question embodies a “plan of action in violation of law.”

If it can be pointed out that a negative vote upon the question would embody or result in any “plan of action” in violation of law or against its enforcement which could not . be fully as well undertaken or could not be quite as lawfully and effectively met and dealt with by the law and the civil authorities after such vote as before, the objection might be held to be good and well taken.

Let us assume that the vote has been taken, that it is negative, that is, against closing all places where liquor is sold or given away on Sunday. What is the result? So far as the law or the enforcement of the law is concerned, how is the situation changed in the slightest degree? What “plan of action” is the community left to encounter? The law remains precisely the same; precisely the same officers of the law remain under precisely the same oaths and obligations and with the same powers to enforce it and under precisely the same penalties as before for not enforcing it.

When this question was asked at the hearing, counsel for respondents frankly admitted that in respect of the things mentioned there would be no change, the situation would remain the same.

What then is the net result of the vote but a mere expresssion of opinion upon the question of the public policy as to Sunday opening or Sunday closing?

Bespondents’ only answer is that such vote might be misconstrued by the lawless and leave room for argument on their part that it meant a declaration in favor of non-enforcement of the law.

The reason, — the mere possibility of an aftermath argument, even if sound — is not of sufficient force to disfranchise the people and deprive them of their constitutional and legal right to an expression of their opinion. The reason however, is not only not sound, but is destructive of itself; because a complete answer to the argument suggested would be the decision of a court of competent jurisdiction to the contrary; this court now holding as it does that the question does not embody and cannot by any reasonable construction be held to embody any plan of action in violation of law or declaration for its non-enforcement.

For the reasons stated, the court further holds that the question proposed clearly is a question of public policy, not academic merely, but of vital interest to the whole community, that the petitioners have a clear legal right to have it put upon the ballot and that it is the clear legal duty of the hoard of election commissioners to put it there.

Therefore, the order of the court will he that the demurrer is overruled and that the writ of mandamus issue, as prayed.


author: Carter, J.;—

text:
      (Supreme Court of Illinois)

    People of the State of Illinois ex rel. John Koelling vs. John C. Cannon, Thomas F. Judge and Abel A. Bach, Constituting the Board of Election Commissioners of the City of Chicago and Isaac N. Powell, Chief Clerk of said Board.
    (March 31, 1908.)
    1. Mandamus — Nature of Remedy Under Illinois Statutes. Under the Illinois statutes, mandamus is no longer a prerogative but is nothing more than an ordinary action at law where it is the appropriate remedy.

      2. Appeal — Perfection of — Stay of Proceeding — Necessity of Bond. Where a bond is required in order to perfect an appeal, the proceedings in the lower court are not stayed until the bond is filed. The filing of a bond is a necessary part of the proceedure in perfecting an appeal.
    '3. Appeal — Perfection of Under Section 98 of Practice Act— Negessity of Bond — Stay of Proceedings. Where appellant is of the class mentioned in section 98 of the practice act, the. giving of a bond is not essential to perfect his appeal and the proceedings are stayed without him giving the same.
    4. Mandamus, — Granting of Writ — Effect of Appeal. Where a writ of mandamus has been 'granted, the perfection of an appeal suspends the force of the judgment the same as in- any ordinary action at law and stays all proceedings until the appeal is. decided.
    Motion, appellants (respondents below) for a supersedeas. Heard before Judge Orrin N. Carter, of the Supreme Court in chambers at Chicago. The facts are stated in the opinion.

      Walter L. Fisher and Frank D. Ayers, for appellants (respondents below).

      Levy Mayer and Harry Rubens, for appellee (petitioner below).
   Carter, J.;—

A petition was filed in the circuit court of Cook county to compel the election commissioners to print a certain question on the ballot for the coming April election. After a hearing the court granted the prayer of the petition, and from that decision an appeal has been perfected to the supreme court of the state. The respondents have presented a motion that a writ of supersedeas be issued on this appeal under section 98 of the Practice Act.

At the threshold I am met with the question whether the perfecting of the appeal operates as a stay of the proceedings-in the lower court. If it does, then it is unnecessary to hear the other questions involved, for nó matter what action I might finally take on the question of the supersedeas, all parties would not be legally bound. to follow the finding. Generally speaking, it is unwise for any court to attempt to decide a moot question.

I have given the subject as to whether the appeal in this case operates as a stay as thorough and careful an examination as the limited time would permit.

Section 10 of chapter 87, Hurd’s Statutes, 1905, p. 1351, states that appeals and writs of error in mandamus are taken and prosecuted in the same manner, upon the same terms and with like effect as in other civil cases. Since this statute was enacted it has been frequently decided that the writ of mandamus is not now, as formerly, a prerogative writ, but under the statute it is nothing more than an ordinary action at law in cases where it is the appropriate remedy, and that it is governed by the same rules of pleading as are applicable to any other actions at law. People v. Weber, 86 Ill. 283; Dement v. Rohker, 126 Ill. 174; People v. Crabb, 156 Ill. 155; People v. City of Chicago, 193 Ill. 507; People v. Board of Trade, 193 Ill. 577.

The better considered doctrine now is that the writ in the United States has lost its prerogative aspect, and is to be regarded much in the nature of an ordinary action between the parties, and as a writ of right to the extent to which the party agreed shows himself entitled to this particular species of relief. High on Extraordinary Legal Remedies, 3rd ed.. sec. 4.

“It is equally well settled,” said Chief Justice Taney, of the United States supreme court in Commonwealth v. Dennison, 24 Howard, 66, 97, “that a mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English Crown, and was subject to regulations and rules which have long since been disused. But the right to the writ, and the power to issue it, has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.”

To the same effect is Merrill on Mandamus, sec. 309; 2 Spelling on Extraordinary Remedies, 2nd ed., par. 1713; Elliott on Appellate Procedure, see. 394.

The hurried examination I have been able to give the authorities cited by these text writers leads me to believe that the general trend of decisions by the various state courts of last resort in this country, especially where the statute is anything like our own, is substantially to the same effect.

Where the lower court, under the statute and by an order requires a bond to be filed in order to perfect an appeal to the supreme or appellate court, the proceedings in the lower court will not be stayed until the bond has been filed. Simpson v. Alexander, 10 Ill. 260; Blackerby v. People, 10 Ill. 266; Reynolds v. Perry, 11 Ill. 534.

But the reasoning of those decisions is all to- the effect that the filing of the appeal bond is a necessary part of the procedure in perfecting the appeal.

In this proceeding it seems to be admitted that under sec. 98 of the Practice Act respondents are not required to file a bond. Holmes v. City of Mattoon, 111 Ill. 27.

They have taken all the steps required of them by law to perfect the appeal.

In Cowan v. Curran, 216 Ill. 598, the court said, page 623: “When an appeal is perfected, the jurisdiction and control of the court below cease, and the appeal becomes a stay of all proceedings to enforce the execution of the judgment or decree.”

To the same effect is Oakes v. Williams, 107 Ill. 154; Shirk v. Gravel Road Co., 110 Ill. 661; Smith v. Chytraus, 152 Ill. 664.

See also on this subject Perteet v. People, 70 Ill. 171.

Unless mandamus is different from an ordinary law proceeding in this state, then under these authorities it seems quite evident that the appeal must act as a stay of the proceedings in the trial court.

In discussing whether an appeal from a writ of injunction has the effect of suspending the writ pending the appeal, it is stated in High on Injunctions, 4th, ed., see. 1698a that in prohibitory injunctions the court which granted the writ has the power, pending the appeal to punish for its violation, but that this is true only in that class of injunotions; but where the decree appealed from grants a mandatory injunction or one which, although prohibitory in form, is mandatory in substance, the rule is equally as well established that the perfecting of an appeal from the final decree will have the effect of suspending the operation of the injunction during the pendency of the appeal, and in such case the court is without jurisdiction to punish the defendant against whom the injunction runs for failure to perform the acts required by the writ.

In discussing this same question in Barnes v. Chicago Typographical Union, 232 Ill. 402, it is stated: “There are judgments and decrees which require something to be done for their enforcement and there are others which are simply prohibitory or self-executing, and others partake of the nav ture of both. A prohibitory decree which does not require anything to be done is self-executing. It requires no process, but by force of the decree itself the party is bound to desist from the prohibited act. If an injunction is of a mandatory character, requiring something to be done, or if negative in terms but with the same effect, a proceeding for contempt in refusing to obey it is in the nature of an execution to enforce the command.”

An appeal would stay any such proceeding, while it would have no such effect with respect to the power of the court to compel obedience to a self executing decree. Mandamus is very similar in effect to a mandatory injunction, one being a common law and the other a chancery proceeding. 26 Am. •& Eng. Ency. 143 and cases cited.

The writ of mandamus in this ease is not self executing. It requires the issuing and serving of process in execution of the judgment. Manifestly, under section 10 of our statute on mamdamus, and the decisions heretofore cited, a mam damns proceeding is an ordinary action at law and is subject to review on writ of error or appeal as any other case. High on Extraordinary Legal Remedies, 3rd ed., sec. 4, '2 Spelling on Extraordinary Legal Remedies, 2nd ed., 1713.

Section 98 of the Practice Act is not in conflict with this ■conclusion.

I appreciate the grave importance of the questions involved in this proceeding. These controverted questions ■ought to be settled in such a manner that all interested, and that means the entire community, would accept the settlement as final, not only for this election, but also for all actions in the future elections.

If the appeal in this case acts as a supersedeas, it would not be appropriate here to consider and decide what counsel have-termed the merits of the question. If the appeal so operates, then the evils that counsel insist must grow out of the delay caused thereby, are questions that should be addressed to the-legislature, and not to the courts. It is the duty of the judiciary to construe the law as they find it, and no public reason, however important, can justify a court in failing to follow the plain provisions of the law. If any other rule were-to obtain, it would soon cause the construing of laws and the-enforcement of judgments to be within the mere discretion of the judges. The rights and liberties of citizens cannot be made to depend for their security on the arbitrary will of any. public official — and least of all the judiciary.

As Justice Story, of the United States supreme court said, in United States v. Dickson, 15 Pet. 141, 162: “It is not to' be forgotten, that ours is a government of laws, and not of men; and that the Judicial Department has imposed upon it, by the Constitution, the solemn duty to interpret the laws,, in the last resort; and however disagreeable that duty may be * * * it is not at liberty to surrender, or to waive-it.”

The evils that may arise from my undertaking to settle this subject on the merits, as a moot question, would be far greater than any that can arise from following what I believe to be the law.

The appeal is this case having been perfected, operates, in my judgment, as a supersedeas, and stays all proceedings, until the appeal is decided.

In view of what has been said, any further action on my part would be futile and without justification.


author: Tuthill, J.: —

text:
      (Circuit Court of Cook County.)
    People ex rel. Fitzpatrick and Cruice vs. John C. Cannon, Abel A. Bach, and Thomas F. Judge, Election Commissioners of the City of Chicago.
    (March 23, 1907.)
    1. Public Policy Act — Refusal op Election Commissioners to Comely With Petition Thereunder — Remedy by Mandamus— Jurisdiction op Circuit Court. If the election commissioners -arbitrarily in disregard of' the provisions of the public policy law refuse to place a proper question signed by the requisite number of electors, upon the ballot, the circuit court has jurisdiction to compel them by mandamus to discharge their duty in that respect.
    2. Statutes — Construction op, Where Meaning Clear — Duty op Court. It is an elementary rule of construction to first look at the language of an enactment, and if, from the words used, the meaning is clear and plain, it is the duty of "the court to declare the meaning of the law to be as the words indicate. In such a case, there is strictly no need for construction.
    3. Public Policy Act — Number op Propositions to be Submitted— Order op Precedence. The public policy law provides that but three questions may be submitted at any one election. Any number of petitions may be filed with the board of election commissioners, but only the first three in order of their filing can be submitted to the electors.
    4. Public Policy Act — Appearance op More Than One Question oñ any one Petition. Under the public policy statute, while three questions may be submitted at one election, but one question can appear on any one petition. If a petition contains more than one question to be submitted, the whole is a nullity.
    Petition for writ of mandamus. Heard before Judge Richard S. Tuthill. The facts are stated in the opinion of the court.

      Addison Blakely, for petitioners.

      Frank D. Ayers, for respondents.
   Tuthill, J.: —

The question I am called upon to decide in this case arises as to the proper construction of what is commonly known as the “public policy” law of the state enacted by the general assembly, and approved May 11, 1901. (Hurd’s Revised Statutes, 1905, page 967.)

The petition alleges that pursuant to this statute petitioners and many thousands (the required number) of other citizens of Chicago signed: “A certain petition known as the Emergency Referendum Petition a copy of which is attached to and made a part of the petition in which petition three questions are asked to be submitted, which are as follows:

First: “For the approval of ordinances substantially in the' form of the pending ordinance (reported to the city council of the city of Chicago, on January 15, A. D. 1907) authorizing the Chicago City Railway Company and the Chicago Railways Company, respectively, to construct, maintain and operate street railways in said city, and providing for the purchase thereof by the said city or its licensee.”

Second: ‘‘Shall the city council proceed by condemnation under the Mueller law to acquire and equip a complete, modem, unified street railway system with one fare and universal transfers for the entire city, instead of passing the pending franchise ordinance?”

Third: “Shall the legislature repeal the Sunday closing laws which forbid under penalty attending or taking part in amusements or diversions, maintaining open bars, and engaging in business or work on Sunday?”

It is alleged and conceded for the purpose of this hearing, at least, that the requisite number of signatures of electors are attached to said petition to require the submission of a question to the voters for their decision. It is further alleged that when this petition was presented to John C. Cannon, Thomas F. Judge and Abel A. Bach, election commissioners, they and each of them refused and still refuse to print said three prqpositions, or either or any of them upon the ballot at the election, April 2, 1907, “in accordance with the tenor of said petition, and in pursuance of the duty imposd upon them specifically by the provisions of said public policy act, which said refusal is incorporated in an opinion by said commissioners rendered by them on the 21st day of February, 1907, a copy of which is attached hereto and marked Exhibit B. to which formal exception and protest was then and there made by attorneys for these petitioners. ’ ’

The writ of mandamus is herein prayed to compel the placing of said above-mentioned three questions contained in said petitions upon the ballot by said election commissioners.

If the election commissioners have arbitrarily, in disregard for the provisions of the law, refused to place said propositions upon the ballot, then I am of the opinion that this court ought to issue its writ of mandamus to compel them to discharge the duty which the statute imposes upon them in this respect.

Was the petition a valid and legal petition? This involves this other question: Does the law permit more than one question to be signed for by petitioners upon one and the same petition ?

An elementary rule of construction is first to look to the language of an enactment, and if, from the words used, the meaning is clear and plain, it is the duty of the court to declare the meaning of the law to be as the words used indicate. In such case it is not needed to go further in citing other rules of construction, for there is no need of construction. This law declares that “on a written petition signed” etc., “it shall be the duty of the proper election officers in each case to submit any question of public policy so petitioned for” to the electors, etc. “Provided, such petition is filed with the proper election officers in each case not less than sixty days before the date of the election at which the question or questions petitioned for are to be submitted. Not more than three propositions shall be submitted at the same election, and such proposition shall be submitted in the order of its filing.”

The right secured in the organic law, section 37, article II, Bill of Rights, to the people “to make known their opinions to their representatives and to apply for redress of grievances, ’ ’ will in no way be denied or frittered away by technical and subtle reasoning.’ At the same time it was most proper for the representatives of the people in the legislative body to provide an orderly and appropriate method whereby the opinions of the people might be definitely and clearly made known to their representatives, so that frauds upon the people themselves might not be made easy or possible of perpetration. It was most necessary and proper to guard the exercise of this important right of the people so that the people should not themselves be deceived or misled and made to seem to ask for that which they did not in fact intend or desire. In order to enable the voter to express his wish, the issue presented to him should, so far as is practicable, be segregated from others, for it is only possible for him to give an affirmative or negative answer, “Yes” or “No”, and by a cross opposite the question he is to answer by his vote to signify his wish. In order that the voter should not be confused and thus fail to express his real wish, the legislature wisely limited the number of questions which might be submitted at any election to three, and by requiring the petitions to be signed by 25 per cent, of the registered voters.

But these are not the only things which are required. All the words of a statute are to be considered and given weight in determining the scope and meaning of the law. The three questions to be submitted are, I may state, distinct and may be, usually are, incongruous. There is no limit to the number of petitions which may be presented to the election commissioners and filed. Any one interested may present a proposition, and if it has the required signatures, he may present it for “filing. ’’ When the time within which petitions may be submitted has expired, then the duty of the commissioners is to consider :

First. ■ The order of the filing of the petitions according to the dates "when presented; for the law declared that, ‘‘such” (each) “proposition shall be submitted in the order of its filing.”

It is argued that the provisions of the law will be complied with if the “propositions” are submitted in the order in which they are placed on the petitions. But this is not what the law says. The “filing” is the fact which the law declares as fixing the order of submission, and neither the commissioners or even the court has a right to declare “that any other fact shall be considered in order to determine the order of the submission of the three propositions.”

It seems to me that this consideration is conclusive of the contention in this case, namely: that only one proposition can be presented in one and the same petition. A consideration of other words in the law, however, sustains this view. It is declared to be the duty of the election officers “in each case to submit any question.” Had the legislature intended that an unlimited number of questions, or that more than one question could be petitioned for in one and the same petition, why did they say “any question,” using the singular number, rather than the plural, questions 1 The mention of one is the exclusion of the other.

It is ingeniously argued that the use of the words “question” or “questions” in the proviso indicated that more than one question might be petitioned for in one and the same petition, but I am wholly unable to take this view. It is true the law. permits the submission of three questions by the election commissioners. There might be only one question and only one petition to submit, and therefore it was necessary in ease there was more than one question, and more than one petition, to make the requirements found in the proviso apply to all as well as to each, to “questions petitioned for” as well as to “a question petitioned for.”

The petitions on which are found the three propositions which it is sought to have placed on the ballot well illustrate the danger and evil which the legislature sought to avoid, as it appears to me, by requiring that only one proposition should be submitted in any one petition. The voter might wish to vote for one of these propositions, but might, and in many eases certainly would, wish to vote against another. Again his interest in one might be so great that in order to promote that he would even sign a petition containing another which he was in truth opposed to, or when his signature was requested, his attention only be called to the proposition he approved, and the one he did not approve would be kept in the background. Thus a vicious and hurtful practice, known in legislative bodies as log rolling, would inevitably be resorted to. So, instead of a petition truly representing the wishes of the signers and making known their opinions to their representatives, it would in very many cases have an opposite effeet, and thus tend to defeat the only legitimate and proper object of the public policy law.

The language of the law seeming to be clear and conclusive as to the legislative intent, it is perhaps not needed that I should discuss or refer to authorities bearing upon the contentions of the learned counsel on each side of this case. The case of Supervisors of Fulton County v. The Mississippi & Wabash Railroad Co., 31 Ill. 338, 373, is so much in point and so clearly expresses my own views as to the questions herein involved, and which ought to and no doubt did influence the legislature in the enactment of this law, that I will close by quoting from the opinion of Justice Breese, one of the first and ablest judges who, on the bench of the Supreme Court, has declared the law in our state, and given reasons therefor which have been approved by jurists, statesmen and patriots as based upon good morals, sound reasoning, a profound regard for the welfare of the people, and the perpetuity of a government by the people. He said:

“The order made by the Board of Supervisors of Fulton county under this law, does not seem to be in strict conformity to it. The law evidently contemplates a vote for or against subscription, to some one company, only, specifying the company. The order is for a subscription to the Mississippi and Wabash River Railroad Company, and the Petersburg and Springfield Railroad Company, seventy-five thousand dollars to each.

‘ ‘ This is not only not pursuant to the law, but is manifestly unfair. All elections, as well for measures as men, should be perfectly free, uninfluenced by any consideration, other than the merits of the individual man or measure proposed. We boast of the freedom of the elective franchise, should we not strive to swell the boast by its purity also ? A single, isolated measure, such as a railroad, may not unite a majority of a county to whom it is proposed. It may favor, if constructed one portion of a county more than another, and thereby be - prevented from receiving a clear majority vote, such as the law clearly contemplates shall be given- Is it fair, in order to accomplish this object, to attach another measure to it, to be voted on at the same time, which may benefit the opposing portion of the county ? The law never intended that two roads should be coupled together, and the people forbidden to vote for the one if they did not also vote for the other, the one road being really a bribe offered for votes for the other. The truth is the voters of Fulton have never had an opportunity to vote, and never have voted this subscription, for the question was at no time distinctly before them. The question before them was, will you vote for a subscription to two. roads ? Neither road has received the approving vote of the people, and until that is done, until the naked single question shall be fairly presented to those voters, they ought not to be bound, or injuriously affected, by any such jockeying management and log rolling. By this system, condemned as it has always been, by the moral sense as well as sense of justice, of the whole country, it should at this day find no favor in the courts. We do not hesitate to say, this proposition to vote on two roads at the same time, was not authorized by the law, and is a fraud on the people.

“This tacking one measure upon another is unjust in another view, as it gives the county court power to weigh down a popular single measure, by attaching odious measures to it, and this virtually depriving the people of their right to vote on the one measure the success of which would greatly promote their interests.

1 ‘ Such maneuvering should be condemned everywhere as unfair and unjust, and we so regard it. The order made by the board of supervisors, in thus obtaining the vote of the people, is considered as unauthorized by the act.

“The decree of the circuit court is reversed.”

The language of the supreme court of Colorado, in Denver v. Hayes, 28 Colo. 110, 63 Pac. 311, is also directly in point.'

The order of the court will be that the writ of mandamus prayed for in this petition is denied.


author: Dunne, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)

    The Union Pressed Brick Co. vs. Chicago Hydraulic Pressed Brick Co., et al.
    (July 29, 1899.)
    1. Contracts — Restraint of Trade — Validity of Agreements to Sell to Certain Persons Only. An individual or corporation, may enter into a contract to sell its property, merchandise, or its labor to certain persons and none others. Individuals or corporations have the right to refuse to contract with other individuals or corporations. But in so contracting or refusing to contract they must not commit a criminal offense.
    2. Contracts in Restraint of Trade — Prohibition of by Statute. Where the legislature has seen fit to abridge the right of contracting, and declare that certain contracts arei criminal offenses, then such contracts and combinations are without the pale of the law and will not be sustained and carried out by the courts.
    3. Injunction to Restrain a Criminal Offense. As a broad proposition an injunction will not lie to prevent the commission of a criminal offense, but if the commission of a crime against the State will result in damage to the property of an individual, an injunction will lie to prevent such injury if the remedy at law is inadequate. Where the commission of crime will entail property loss to a private citizen for which he has no adequate relief at common law, courts of equity should give redress to the person who has been made to suffer such irreparable injury. 4. Combinations and| Monopolies in Restraint of Trade — Agreements to Control Price of Brick. Where certain brick manufacturers, entered into an agreement with a masons’ and builders’ association, which comprised practically all the persons engaged in brick and mason work in Chicago and Cook County, Illinois, under which the members of the association were bound to purchase all brick used by them from said manufacturers, the price being increased and the additional profits paid into a pool to be divided pro rata among the brick manufacturers, and the association; held that this constituted a conspiracy and combination in violation of the anti-trust acts of Illinois.
    Bill for injunction to restrain an unlawful combination in restraint of trade. Circuit court of Cook County, Gen. No. 196,935. Heard on bill and affidavits in support thereof, and demurrer to bill, before Judge Edward F. Dunne.
    The facts are stated in the opinion.

      Newman, Norlhrup & Levinson, solicitor for complainant.

      Darrow, Thomas & Thompson, Henry M. Matthews, and Gott & Robinson, solicitors for defendants.
   Dunne, J.:—

The complainant in the case at bar has filed a bill for injunction, the salient allegations of which are as follows:

That it is a corporation engaged in the manufacture and •sale of pressed and sewer brick; that it has; fully one hundred thousand dollars ($100,000.00) invested in its business; that in the year 1898 it sold 2,300,000 pressed brick in the county of Cook and realized many thousand dollars profits therefrom; that during the month of April, 1899, it sold in said county ■over 750,000 brick, and during the first eight days of May about 400,000; that on th,e 9th day of May, 1899, the defendants entered into a conspiracy, hereinafter set forth, as a result of which its sales of brick during the months of May and June amounted to only about $25,000; that including the complainant there are six firms and corporations engaged in the business of selling pressed brick in the city of Chicago and county of Cook; that up to May 9th, 1899, the complainant was selling such brick at from ten to eighteen dollars per thousand on the Chicago market; and that all of said other companies were selling the same character of brick for higher prices than the prices at which complainant wras selling said brick, which were fair and reasonable and yielded to complainant a fair, reasonable and satisfactory profit; that the demand for complainant’s brick was very large and steadily increasing from April 1st, 1899, down to May 9th, 1899; that the defendant, the Chicago Masons’ and Builders’ Association, is an incorporated company; that it contains among its members at least two-thirds of all the persons and firms and corporations in the city of Chicago and in the county of Cook engaged in the business of constructing brick and mason work, and practically all of the substantial and reliable persons, firms and. corporations engaged in that business in said city and county; that the members of said association have constructed over 95 per cent, of the brick and mason work in said county during the year 1899; that the purpose and object of said association, as stated-in its Constitution and By-laws is “for the purpose of producing uniformity of action in regard to the various matters involving their mutual interest;” that said association, under article 13 of its Bylaws, has created a Committee of Arbitration; that this committee, under article 13, has the right to “enter into agreements and formulate working rules binding upon this association and its members, and is empowered, to enforce the same; ’ ’ that said Committee of Arbitration for many months last past have had arbitrary control of the acts and conduct of the members of said association in and about and in connection with the entering and fulfillment of contracts for brick and mason work; and the power to determine from what persons, firms and corporations the members of said association shall be permitted to purchase building materials; that said committee has frequently exercised said power and authority and has enforced the same by fines and penalties.That by Rule 9 of the Working Rules, it is provided that members of said Association will employ members of the Brick-Layers Association, and none others, and that members violating any of the rules of said association shall be fined by the Arbitration Committee not less than five dollars for each offense; but that this rule shall not apply to. rules where special fines are provided; that by Rule 14 of said association, any member fined shall stand suspended in all the rights and benefits of the association until his fines are paid; that there exists in the city of Chicago and county of Cook, a Mason & Brick-Layers Union, which said union comprises at least 75 per cent, of the efficient and competent journeymen, stone masons and brick-layers, in said Cook county; that said union has adopted a working rule in which it is provided that the members of said union will work for members of the Masons & Builders’ Association and (with some immaterial exceptions) none others; that by means of the rules adopted by the Masons & Builders’ Association and the Brick-Layers’ Union the members thereof have secured and exercised, and do now practically exercise complete control over the entire business of constructing brick and mason work in the county of Cook; that no member of the Brick-Layers’ Union will lay brick except for a member of said Mason & Builders’ Association, and that as a result thereof the members of said Masons & Builders’ Association have constructed over 95 per cent, of -the brick and mason work during the year 1899, and have had practically the exclusive control and monopoly thereof; that four of the defendants, to-wit. The Chicago Hydraulic Pressed Brick Company; the Cayuga Pressed Brick Company; Thomas C. Moulding Company; and Charles Bonner, being' manufacturers and dealers in pressed brick, have entered into a fraudulent and corrupt conspiracy between themselves and the said Masons & Builders’ Association, in restraint of the sale of and trade in pressed brick and paving brick for building purposes, in the county of Cook, and to secure to themselves a sole monopoly in the sale thereof in said county of Cook at arbitrarily increased prices, the terms of which conspiracy are as follows:

That said four brick dealers would from and after May 9th, 1899, arbitrarily increase the price of all pressed brick and paving brick for building purposes, to the amount of three dollars per thousand over and above the price for which they had been selling brick hitherto, and would not sell any such brick except at said increased prices; and that of said increased price per thousand, two dollars should be paid into a fund or pool which should be held by said four conspiring brick dealers, to be divided by them pro rata, among said conspiring brick dealers, and the remaining one dollar per thousand of such increased price should be paid over to the Masons- & Builders’ Association, for and in consideration of the fraudulent agreements on the part of said Masons’ & Builders’ Association, to buy or use, or permit to be used in said Cook county no pressed brick or paving brick for building purposes whatever, at any pri.ee whatever, except those which should be sold by said four conspiring brick dealers, or some one of them.

It is further alleged that as part of said agreement between said four conspiring brick dealers and the Masons’ & Builders’ Association, that they covenanted and agreed with each other, that should any member of the said Masons’ & Builders’ Association, use or permit to be used any pressed brick or paving brick for building purposes, other than that bought from said four conspiring brick dealers, or one of them, that then and in such case, such member should be fined by the Masons’ & Builders’ Association, the sum of four dollars per thousand for each thousand brick so used or purchased from others than the said four conspiring brick dealers, or one of them, and should also be punished for such action by other heavy fines and penalties, which would be imposed by said Masons’ & Builders’ Association, in each ease, according to the arbitrary discretion of the officers of said association; that said agreement between said Masons’ & Builders’ Association and said four conspiring brick dealers, went into effect on or about the 9th day of May, 1899, and has. ever since remained in full force and effect; that on or about said date said four conspiring brick dealers arbitrarily increased the price of pressed brick and paving brick for building purposes, to the amount of at least three dollars per thousand, for each thousand, over and above the price at which they were selling the same on May 9th, 1899; and have ever since said date sold and still continue to sell said pressed brick and paving brick at said increased price; and that by reason of said agreement and conspiracy between said four conspiring brick dealers and the Masons’ & Builders’ Association, said conspiring four brick dealers have ever since May 9th, 1899, been able to sell and have sold practically all the pressed brick and paving brick for building purposes that has been sold in the county of Cook, and have prevented the complainant and other dealers not in the conspiracy from selling any pressed brick or paving brick in said Cook county since May 9th, 1899; that many of the members of sasid Masons’ & Builders’ Association are willing and anxious to purchase brick of complainant, but stand in fear of the rules, regulations, fines and penalties adopted by said association, and by reason of such fear decline to buy brick from the complainant, while some members of said association have ordered brick of the complainant but have countermanded their order, by reason of such rules, fines and penalties; that by reason of the acts.and penalties of the said defendants, hereinbefore mentioned, the complainant has ever since May 9th, 1899, been wholly prevented from selling pressed brick or paving brick in Cook county, which it would have otherwise sold, and has thereby lost and been deprived of certain large profits which it would otherwise have made in the sale thereof, and that its said trade has been greatly damaged and injured and the reputation of the said brick so sold by complainant has been greatly impaired among contractors and builders and other persons; that the complainant is under an expense amounting to two thousand dollars per month for wages and salaries of its employees and that by reason of said conspiracy it is carrying on its said business at a great and constant loss, which said loss is necessarily impossible and will be necessarily impossible to demonstrate with accuracy in a suit at law, and that the damage to the complainant’s business is continuous and irreparable.

Upon these allegations complainant asks the court to enjoin the defendants from further continuing said conspiracy and from directly or indirectly enforcing said pressed brick rules, and from continuing or permitting to be continued any agreement or arrangement between said Masons’ & Builders’ Association and said four conspiring brick dealers, which provides that all pressed or paving brick shall be purchased by members of said association from no other person or firm save and except the said four conspiring brick dealers.

The petitioner further prays for a mandatory injunction, commanding said firms and the Masons’ & Builders’ Association to rescind said pressed brick rules and regulations of like nature, heretofore enacted, and requiring said association to notify the members of said Masons’ & Builders’ Association that said rules are rescinded and annulled, and for other relief.

The defendants have filed a general demurrer to this bill of complaint, and the complainant asks for a temporary injunction, based upon the allegations of the bill, admitted by the demurrer to be true, and the affidavits filed in support of the same.

It is contended by counsel for the defendants, that a court of chancery is not justified in granting an injunction upon the allegations of the bill; that the members of the Masons’ & Builders’ Association,, and the four brick dealers in question, had an -undoubted right to enter into the arrangement or contract set out in'the bill of complaint; that any individual or corporation has the right to contract with any other individual or corporation for the purchase or sale to it or him, of its merchandise, property or labor, and that any individual or corporation has .the right to refuse to contract with any other individual or corporation in the community, for the sale of its merchandise, property or labor, and that what any one individual or corporation may do a combination of individuals or corporations has the right to do, and that a court of equity should not impair the right of free contract by interfering with in junctional power for the object of preventing the carrying out of such contracts.

It is undoubtedly true that an individual or corporation may enter into a contract to sell its property, merchandise, or its labor, to certain persons and none others. It is also, true that individuals or corporations have the right to refuse to contract with other individuals or corporations. But these propositions are subject to this modification: That in contracting, or refusing to contract, they do-not commit a criminal'offense. ,,

Where the legislature in its wisdom, has seen fit to abridge the right of contracting and declared that certain contracts are criminal offenses, then such contracts and combinations are without the pale of the law and instead of being sustamed and carried out by the courts, must receive their condemnations.

The legislature of the state of Illinois doubtless having in view just such combinations as that set out in the bill in this case, passed in the year 1897 an act making criminal “a combination of capital, skill or acts, by two or more persons, firms, corporations or associations of persons, or two or more of them, for either, any, or all of the following purposes!: First: to create or carry out restrictions in trade; second, to increase the price of merchandise or commodities; and .third, to prevent competition in the sale or purchase of merchandise or commodities. ’ ’

Can it be doubted, that if the defendants in the case at bar have entered into the arrangement set out in complainant’s bill of complaint, that the aim, object and natural effect of this combination would be to restrict trade; to increase the price of pressed and paving bricks; and to prevent competition in the sale thereof ?

If the effect of the combination set out in the bill of complaint, is to restrict trade, to increase the price of pressed brick and paving brick, and to prevent competition in the sale thereof, it is a crime, so made by the statute of 1897, and If it be a-.crime it is not a contract or combination which any firms, corporations or individuals had the right to enter into.

Counsel for defendants have cited to this court numerous authorities in support of their contention that the defendants in this case had a right to enter into this contract or combination but all of these cases will be found, upon examination, to have been decided before the passage of the anti-trust law in this state, or in states and countries where no such antitrust laws are found in the statute books; or they have been decided without the attention of the court being- called to the statute in question.

Counsel for the defendants further contend, that even if the combination set out in the bill of complaint, is a criminal offense, that it is punishable by the state laws, and that no-individual has a right to complain thereof, except in the-criminal courts of the state. And counsel argues with great, force, that an injunction will not lie to prevent the commission of a criminal offense.

As a broad proposition this is undoubtedly the law. The-criminal procedure of the state is or ought to be, adequate to-prevent the commission of a crime, but none the less, if the commission of a crime against the state will result in damage-to the property of an individual, no one will question but that the individual has the right to civil redress in the courts for the damage to his property.

If a malefactor burned down the house of a citizen, he may be punished in the criminal court for arson. None the less, he may, if financially responsible, be compelled to compensate the owner of the house, in an action on the case for damages. If a citizen has the right to sue civilly a criminal who has. damaged his property and recover compensation from a financially responsible criminal, by what rule of law or equity should he be denied the right to prevent by injunction the injury to his property, if the remedy at common law is inadequate ?

If a lot of irresponsible men should conspire* to bum down the house of a citizen and thus inflict an irreparable loss on him, must he take the chance of arresting them and proving-their guilt in the criminal court, and in the meantime have-his house destroyed ? Or, should he not, as in every case where he can show irreparable injury, appeal to a court of chancery and by showing that such injury would be irreparable to-him, obtain by injunction an order restraining them from entering upon his property for the purpose of committing such illegal act ?

A court of equity ought not be permitted to enjoin crime, as crime, because it has no criminal jurisdiction and the machinery of the criminal law is supposed to be adequate to prevent the same. But if the commission of such crime involved the loss of private property the owner thereof should and can obtain redress for his loss in a court of common law, where that relief is adequate. Where the commission of such crime will entail property loss to a private citizen for which he has no adequate relief at common law, the courts of equity should give redress to the person who has been made to suffer such irreparable injury.

In such cases it is true it should clearly appear, first, that the commission of such criminal offense Would entail a private loss; and, secondly, that the remedy afforded at common law for such loss is clearly and unmistakably inadequate.

This is not the enunciation of any new doctrine. In Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551, it was held upon demurrer (syllabus) : “That the acts of the defendants, as alleged by the bill, amounted to, crime, and that the court would interfere by injunction to restrain such acts, inasmuch as they also tended to the destruction or deterioration of property.”

Sir R Malins, V. C., in passing upon this identical question, makes use of this language (p. 558) :

“The jurisdiction of this court is to protect property, and it will interfere by injunction to stay any proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate destruction of property, or to make it less valuable or comfortable for use or occupation.”

Lord Eldon, in the case of Macauley vs. Shackell, 1 Bligh (N. S.) 96, 127, says: “The court of equity has no criminal jurisdiction, but it lends its assistance to a man who has, in the view of the law, a right of property, and who makes out that an action at law will not be a sufficient remedy and protection against intruding upon his publication.”

In Hopkins vs. Oxley Stave Co., 83 Fed. 912, the court held (syllabus) :

“First, that the combination in question was an unlawful conspiracy to deprive the plaintiff of its right to manage its business as it thought best, such as would entitle the manufacturer to recover from the parties concerned in the conspiracy whatever damages it had sustained thereby; second, that in ■ such a case the test of the right to sue in equity was whether the damages occasioned by the conspiracy would be irreparable, or whether a proceeding in equity was necessary to prevent a multitude of suits, — in other words, whether the remedy at law was for any reason inadequate; third, that in the case in hand the plaintiff was entitled to sue in equity, and that an injunction to prevent the execution of the conspiracy Was properly awarded.” And in the opinion, the court declares, (p. 918):

‘ The test, of the right to sue in equity, is whether the com- , bination complained of is so far unlawful that an action at law will lie ‘to recover the damages inflicted,’ and whether the remedy at law is adequate to redress the wrong. . If the remedy at law is for any reason inadequate, resort may be had, as in other cases, to a court of equity. ’ ’

In Nashville, C. & St. L. Ry. Co. v. McConnell, 82 Fed. 65, the court quotes the following language:

‘‘Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences appear the jurisdiction of a court of equity arises, and is not destroyed by the fact that they are accompanied by, or are themselves, violations of the criminal law. ’ ’

And in Port of Mobile v. Louisville & N. R. Co., 84. Ala. 115-126, 4 So. 106, 112, the court declares:

‘‘The mere fact that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction, if it be also a violation of property.rights, and the party aggrieved has no • other adequate remedy for the prevention of the irreparable injury which, will result from the failure or inability of a court of law to redress such rights. ’ ’

It is true that most, if not all of these cases are ones in which a court of equity gave relief by injunction, as against striking workingmen. But if it be the law as against workingmen, why should it not also apply to capitalists?

The defendants in the case at bar, under the allegations of the bill, have practically a monopoly of the pressed and paving brick business in the County of Cook, but the same rule of law should apply to them as to the workingmen, especially in view of the fact that it is alleged in the bill that the damages occasioned by their conduct, are not capable of being definitely ascertained in a court of law; that the business of the complainant is being ruined; and that its damages would be irreparable.

If the allegations in the bill of complaint are true, as the demurrer admits, the defendants are engaged in the commission of a crime punishable by a fine of not less than two thousand dollars ($2,000.00), and a forfeiture of all their corporate rights. In the perpetration of this crime, under the allegations in the bill, they are entailing irreparable financial loss to the complainant. To refuse it relief by injunction and relegate it to a court of common law, for the purpose of attempting to ascertain its loss after its business is ruined, would be denying it the relief which, under every principle of equity, it is entitled, to.

In the absence of a statute making such an agreement criminal, the complainant might be, under the older authorities, without remedy, but in view of the plain provision of the anti-trust law of this state, and the authorities rendered in jurisdictions where such laws are in force, the right to relieve by injunction is, in the judgment of this court, unquestioned.

Note. — The above case is referred to in a note in 64 L. R. A. 720. See also Sanford v. People, 121 Ill. App. 619, where the court held the same combination to be illegal. — Ed.

       The anti-trust act of 1897 was held unconstitutional in People ex rel v. Butler Street Foundry & Iron Co., 201 Ill. 236. See also, People v. Richards & Kelly Mfg. Co., 1 Ill. C. C. 181, note; and Taylor v. Pullman Co., 1 Ill. C. C. 50, note. The original act oí 1891 of which the act of 1897 was an amendment is still in force. — Ed.