author: Judge Moore

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

    Nickerson, et al. v. Kimball, et al. Barton, et al. v. Same. Coolbaugh, et al. v. Same. Blair, et al. v. Same. Fairbank, et al. v. Same. Sturges, et al. v. Same.
    (May 9, 1877.)
    1. Taxation op National Bank Stock. The statute provides that the stockholders in every bank located in Illinois shall be assessed and taxed on the value of their shares of stock therein; that this tax shall be levied according to “valuation.” These provisions are in harmony with the constitution inasmuch as an error in the views different men may take of values does not show want of “uniformity.”
    2. County Board — Complaint. The county hoard, acting as a board of equalization, may review and correct an assessment on shares of stock as shall appear to be just, upon complaint to the board, provided the person assessed, or his agent shall he notified of such complaint, if a resident of the county.
    3. Jurisdiction — Notice. The board of review cannot review an assessment without special notice to the persons affected ' thereby.
    4. Notice — How and to Whom it May be Given. It is error in the state board of equalization to make and correct an assessment without special notice to the person affected thereby. Notice is sufficient when actually brought home to such party. Appearance before the board to resist the review and correction of an assessment is a waiver of the right to notice. Notice to. an agent is sufficient.
    5. Tenant — Notice Served Upon. A notice served upon the tenant is not a sufficient service upon the landlord.
    6. Director — Sufficient Notice to. It is a general rule that notice to an individual director, who has no duty to perform in relation to the subject-matter of the notice, is not a notice to the corporation.
    7. Agent — Notice to Bind Principal. It is a fundamental principle that n'otice served on the agent to bind the principal must be served whilst the agent is acting within the scope of his agency.
    8. Bank — Agent of Stockholders. The statute makes the hank the agent of the stockholder, for some purposes connected with the taxation of the shares of stock. The hank acts as quasi trustee in managing the business of the shareholders. Notice to the bank is therefore notice to the stockholders.
    9. Complaint — Notification—Sufficiency of. Any one may complain that another is assessed too low, hut such complaint cannot be acted upon until the party assessed, or his agent, shall be notified of such complaint. The complaint should contain some traversable fact, and not be vague and general, so that the party appearing may be informed of the matter which he is called to meet.
    10. Equity — Jurisdiction to Restrain Collection oe Takes. A court of equity will not restrain the collection of taxes except in cases where the property assessed is exempt, or the tax is unauthorized or unless there is fraud.
    11. Technical Objections. Mere technical objections not affecting the justice of the tax itself, should not be regarded;

      Bill for injunction. Heard before Judge Moore. The facts are stated, in the opinion.

      Charles Hitchcock, Wirt Dexter, Sidney Smith, Melville W. Fuller, Geo. W. Kretzinger, attorneys for plaintiffs.

      Elliott Anthony and John M. Rountree, attorneys for defendants.
   Judge Moore

delivered the opinion of the court:—

The constitution of the state provides for raising revenue by levying taxes, by or according to “valuation” of the property to be taxed; everyone shall be taxed and pay in proportion to the value of his property. This rule is extended to persons and corporations owning or using franchises and privileges. Taxes must be “uniform” in respect to persons and property; every law that imposes a tax must regard every man alike, vide Constitution, art. 9, secs. 1, 9, 10, Hurd’s. Rev. Stat., pp. 74, 75.

The law must not discriminate for or against any one. It. must be uniform. The law enacted under the constitution must be enforced by men who may err in judgment, and therefore burdens may fall unequally. This will result from the different views that different men may take of values and the like, and does not show that the law imposing a tax is-wanting in the principle of uniformity. This principle of uniformity must extend to every person and to every corporation.

“Personal property . . . shall be valued at its fair cask value.” Chap. 120, sec. 3, Hurd’s Rev. Stat., p. 857.

“The stockholders in every bank located within this state, whether such bank has been organized under the banking laws of this state, or of thé United States, shall be assessed and taxed on the value of their shares of stock therein, in the-county, town, district, village or city where such bank . . . is located, and not elsewhere, whether such stockholders reside in such place or not. . . . Taxation of such shares shall not be at a greater rate than is assessed upon any other monied capital . . . where such bank is located.” See. 35. In each of said banks there shall be a list of the names and residences of its stockholders, and of the number of shared held by each. This list shall be open to the inspection of the revenue officers, “and it shall be the duty of the assessor to ascertain and report to the county clerk a correct list of the names and residences of all stockholders in any such bank, with the number and assessed value of all such shares held by each stockholder.” Sec. 36.

“The county clerk . . . shall enter the valuation of such shares in the tax lists in the names of the respective owners ■of the same, and shall compute and extend taxes thereon the same as against the valuation of other property in the same locality.” Sec. 37.

This tax is declared to be a lien upon the respective shares •of stock. Sec. 38.

It is made the duty of the bank or its officers to retain the dividends belonging to the respective stockholders until the 'tax shall have been paid. Any officer violating this provision of the law shall thereby become liable for such tax. The collector may sell the shares of stock when the owner refuses to pay the tax. Chap. 120, secs. 35, 36, 37, 38, 39, Rev. Stat. p. 864 (1874).

There can be no question but that these provisions of the law are in harmony with the constitution. The “valuation” is required, as is “uniformity,” and all as provided by the constitution. The law makes the same provision in valuation to every one who may own the stock of the various banks in the state. If the tax imposed by this law operates unequally, -'it must be because the law itself is not complied with.

It was seen that the assessor must be a man, and so might fail in discharging his duty. Hence the county board, acting •as a board of equalization, may review and correct what has not been done correctly. “On the application of any person ■ considering himself aggrieved, or who shall complain that the property of another is assessed too low, they shall review the assessment and correct the same as shall appear to be just. ’ ’ That is to say, if any one thinks his property has been valued too high, and so considers himself ‘ aggrieved, ’ ’ he may complain, and if the hoard regard his complaint as well founded, then they will review and correct the assessment, by reducing the valuation; or it may be some one thinks that burdens are not equal, and so “complains that the property of-another is assessed too low.” It is then the duty of the board to review and correct the assessment as shall appear to be just. If the complaint is well founded, as in the former case, the assessment can be corrected only by increasing the “valuation.” However, it is provided that “no complaint that another is assessed too low shall be acted upon until the person so assessed or his agent shall be notified of such complaint, if a resident of the county. ’ ’ Chap. 120, see. 97, subsec. 2, Rev. Stat. p. 873.

One other provision of the statute has been referred to in considering these eases. That provision, it is claimed, modifies the other provisions referred to materially, modifies many decisions of the supreme court. It is provided (inter alia) that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.”- Chap. 120, see. 191, Rev. Stat. p. 890. True it is, this provision is found in the middle of a section .that is providing for the proper mode of rendering judgment on the delinquent tax lists; but yet there is no language or words used in any other part of the section that changes, or modifies, or limits the meaning of the provision enacted. The words would mean the same, neither more nor less, if they stood alone in a separate section, or in any other connection.

The provisions under consideration, when brought together, then, may be read in this way: Any one may complain that another is assessed too low, but-such complaint shall not be acted upon until the person so assessed, or his agent, shall be notified of such complaint, if a resident of the county; and no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.

Nickerson et al. aver that they are shareholders of the stock of the First National Bank of Chicago. Barton et al. are shareholders of the stock of the Fifth National Bank of Chicago. Coolbaugh et al. are like shareholders of the stock of the Union National Bank of Chicago. Blair et al. are shareholders of the stock of the Merchants’ National Bank of Chicago. Fairbank et al. are shareholders of the stock of the Commercial National Bank of Chicago; and Sturges et al. are the shareholders of the stock of the Northwestern National Bank of Chicago. The respective complainants make substantially the same averments. The complainants are all residents of the county of Cook, and the respective banks are located in Chicago.

In addition to other averments which are necessary to give jurisdiction, it is averred that the shares of stock of each bank were “assessed and taxed on the value of the shares;” that the assessor of the town of South Chicago, as such assessor, listed the shares of the capital stock of the respective banks for taxation, he giving the valuation thereof as fixed by himself; that this assessment so made by him was returned to the county clerk; that then it was the duty of the clerk to enter the valuation of the shares, as made by the assessor, in the tax lists, in the names of the respective owners, and compute and extend the tax therein on the valuation so made; that these things are required by the provisions of the statutes hereinbefore quoted; “that the assessor, in making the assessment for the year 1876, listed all bank shares and like property at one-third of the value which in his judgment said shares were actually worth.”

To this point no question is raised but that the law has been complied with. But complaint was made by persons stating that they considered themselves aggrieved, and complained that the personal property of the following named persons, firms and corporations have been assessed too low for the year 1876, to wit: shareholders “of the stock of the respective banks, and designating the name of the bank. This complaint was addressed to the Board of Commissioners of Cook County, and those complaining asked the hoard to review the assessments for 1876 of said persons, firms and corporations, and correct the same as shall appear to be just.” This was the only complaint that was filed, and the only notice of this complaint was given to the presidents on cashiers of the banks.

The board did review the assessments, and corrected them?, by increasing the valuation very considerably; but in no case? did the valuation or assessment thus increased amount to? more than one-third of what appears to be fair cash market value of the respective .shares of stock. It is admitted that the stock is personal property, and it is not claimed by any complainant that the shares, by either the assessor or board, were “valued at their fair cash value.”

The complainants aver that the county board had no jurisdiction of the matter, or, rather, of the persons of the complainants, until the complainants or their respective agents had notice of such complaint; and they claim that neither the bank or any officer of the bank was agent of the shareholders.

A number of authorities are referred to by the learned counsel to show that the question of notice is jurisdictional* It is perhaps by some of the counsel conceded that the county board had jurisdiction of the subject-matter, and it is claimed that the said board could have jurisdiction of the persons residing in Cook county only when they have notice. This notice is not required as to any one residing beyond the limits of Cook county. If the complainants be correct, then the fact that notice to non-residents is not required must operate as a hardship. It is not protecting all alike. It must "be borne in mind that the valuation or assessment made and returned by the assessor is made by procuring the necessary information from the bank. The officer calls at the bank and makes his list, and then the valuation is made and returned. Of this fact and of the additional fact that dividends must be retained by the bank until the tax is paid, every person must take notice. This assessment and this return, it may be said, is the matter that, in the first place, confers jurisdiction or sets in motion the officers and those having jurisdiction. It has been held in our own state, “that where the board of supervisors exercise the power to revise the assessment of an individual, he must have notice, and an opportunity to be heard, before it can be legally done.” Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424; First National Bank of Shawneetown v. Cook et al., 77 Ill. 622.

This last named decision was made under the law as it existed March 7, 1873. The provision of the law that is supposed to, modify the law as it then existed, took effect July 1, 1873, and provides that no error or informality not affecting the substantial justice of the tax itself shall vitiate or affect the tax or the assessment thereof.

In the ease of Darling v. Gunn, 50 Ill. 429, the court holds: “The tax, to the extent it was increased, . . . having been levied on an unauthorized assessment, made by persons having no jurisdiction of the person to make the assessment, without notice to appellant, its collection should have been enjoined.”

This case falls within the former decisions of the court, in which it is held that a court will not interfere to restrain the collection of a tax unless it is levied by persons having no authority. As the law then stood, it was incumbent on the court to. find that error existed; but it was not necessary to find more than that error existed. That was all that was required. It was not necessary to pass upon the jurisdictional question. As the law now stands, this inquiry is necessary, since the court will not enjoin the collection of a tax for mere error or informality. It cannot be that the various officers must give notice to every one specially concerned before they can act in relation to the assessment of taxes.

In the case of the National Bank of Shawneetown v. Cook, 77 Ill. 622, the assessment had been made and corrected by the state board of equalization, and then, without notice, the valuation was increased; and the court holds that “it is a proposition upon which there can be no doubt that the board had no power to make any change in the assessment without notice to appellant.” By this language the court is understood as holding no more than that it was simply error in the board to exercise the power without special notice to the persons to be affected thereby. That was the direction of the statute, and it is still the direction of the statute, and to disregard it is an error.

In the case of Mix v. People (72 Ill. 241), it was held that the levy must be made within the time prescribed by law, or it would be void. Was it necessary for the court to hold language so strong? Was it intended to decide anything more than that, as the law then existed, it was such an error as vitiated the levy of the tax? The supreme court afterward said: “It is also urged that the local taxes were not' levied and returned to the clerk in time; and in support of the position, the case of Mix v. People, June term, 1874, is referred to as controlling this. That tax was levied under the law of 1872, whilst this is under the statute of 1873, which amends the prior law, see see. 191, p. 890, Rev. Stat. 1874. That section declares that no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. This provision most effectually disposes of this question.” Buck v. The People, 78 Ill. 560.

Then again it is held by the supreme court: “It is again urged that the certificates of the levy of the local municipal taxes were not filed in the time required by the statute. The answer to this is, as was said in Buck v. The People, supra, that it is cured by the 191st section of the Revenue Law. This cures all defects growing out of the failure to file the certificate on or before the day named in the 122d section.” Chiniquy v. The People, 78 Ill. 570, 575.

In the section 122 referred to in the last-cited case, the provision is positive, and appears to be mandatory: “The proper authorities . . . collecting taxes . . . shall annually, on or before the second Tuesday in August,, certify,” etc., sec. 122, Rev. Stat. 878. This language is not less peremptory than the language used in section 97, Rev. Stat. 873. “No complaint that another has been assessed too low shall be acted upon until the person so assessed or his agent shall be notified of such complaint, if a resident of the county,” and yet it is held that since the adoption of sec. 191, Rev. Stat., the fact that the certificate is not filed in apt time is not such an error as will vitiate either the tax or the assessment. “The amendment introduced into the 191st section of the present revenue law has produced a radical change in-proceedings to recover judgment for delinquent taxes, and has overruled or modified most, if not all, of our previous decisions on the questions thus arising,” vide Chiniquy v. The People, supra.

It will be borne in mind that in all these cases the people were seeking judgments, and must show jurisdiction. ,

In the cases now under consideration, those denying the jurisdiction are the complainants. They must make out their respective cases.. The People in the eases cited must show that all the officers have complied substantially with the law,' or they fail. In these cases now being considered, the complainants take upon themselves to show that the county board had not jurisdiction of the persons of the complainants; and this they must do by overcoming the presumption that a lawful tribunal, in the exercise of its duties, confines itself to whatever authority has been conferred upon it. This is. especially true when it is conceded that the tribunal has jurisdiction of the subject-matter of the controversy.

Can it be questioned that the law might provide for the assessment, and review of the assessment, without notice to any one? But courts cannot render a judgment until there is a service of process, either actual or constructive. A judgment without service of some kind would be void and nugatory in every land. And yet, such a rule, will not be applied to any tax or revenue matter.

The fact that a man must be taxed on all that he has and that he must be so taxed every year is known to and by every one. ’ The assessor is directed to call on him or on his agent and assess his property. He knows that must be reported, and he should take some notice of what is done in the premises thereafter. There is recognized no provision of sec. 97 that fails to require notice to the shareholders of stock not residing in Cook county. As opposed to this view the learned counsel refers to a New York case. School trustees levied a tax for school purposes. In making up the assessment roll the valuation of plaintiff’s property was increased from the valuation thereof upon the town assessment roll. Before making the roll the trustees gave no notice. This assessment is an original assessment, made without any call upon the taxpayer: so that it might well be said there is no jurisdiction of his person until he has notice. In that case the learned chief justice reviews the authorities, and says “the authorities are not entirely in harmony and the precise question has not been passed upon by this court. ’ ’ The opinion concludes “that the weight of authority is that the omission to give the notice is a jurisdictional defect,” vide Jewell v. Van Steenburgh, 58 N. Y. 85. These school trustees were allowed to take the assessment roll of the town assessors, and upon proper notice make such changes as to them might seem right; and then for school purposes the trustees could levy their tax. This was as truly an original assessment as that made by the town assessor. There was no original call so as to confer the jurisdiction. It is not clear that this authority is opposed to the suggestions herein made.

, A well-considered New Hampshire case is referred to, and judgments that are void or only voidable, are carefully discussed.

It is found by the court that tribunals which have jurisdiction of the subject-matter are not absolutely void by reason of any irregularity or illegality of the proceedings in general, but they are avoidable by proper and timely objections. The State v. Richmond, 26 N. H. 232.

If it still be claimed that there was no jurisdiction of the persons of the complainants until they respectively, or their agents, had notice, and that the county board could not review the assessment until such notice had been given, then it becomes an important inquiry how and to whom may such notice be given? There can be no question but that if knowledge was brought home to any of the complainants, such as had' the knowledge must be regarded as having had notice. “Actual notice exists where knowledge is actually brought home to the party to be affected by it” (Bouvier’s Law Dictionary). It will be readily conceded that notice to an agent is notice to the principal. If doubted at all it must still be true in the case under consideration, since the statute requires notice to the party or his agent. Then, if knowledge is actually brought home to the agent of the complainants they must be regarded as having notice, even if they had, in point of fact, no knowledge that the complaint had been made to the county board that their shares of stock had been assessed too low. It is claimed by one of the counsel that notice to one of his clients, as president of the bank, was not notice to him personally. If knowledge of a fact be notice, and sometimes more than mere notice, then this position cannot be maintained. The statute does not say what kind of notice must be given. It simply requires notice. If any officer of a bank have knowledge that the complaint has been made, and he be the owner of any of the shares of stock, he cannot be allowed to say-that he individually has no notice. He has more than notice. He‘has actual, positive knowledge that the complaint is made. In this view there can be no question.

• In addition to such actual knowledge, it appears that some of the officers, who are complainants, actually appeared before the county board and opposed the complaint. A party appearing in a suit, with or without service, cannot afterward deny that he is properly before the court. A party appears and cross-examines a witness when giving a deposition ; he cannot afterward say he did not have notice of the time and place of taking the deposition. These are familiar principles, admitted by all, and show conclusively that such as appeared before the county board, and resisted the review and correction of the assessment, will not be allowed to deny that they had notice of the complaint. What is notice to those who had no such knowledge? What is notice to such as did not appear and oppose the correction?

The notice required is not, in every particular, like unto the process to be served on a party to bring him before the court. Original process cannot, as a general thing, be served on an agent. In this matter it is only necessary that the agent be notified. The revenue law deals with shares of stock and taxes them as the personal property of each shareholder, and such a tax is not a tax on the capital or property of the bank. State, Farmers’ National Bank v. Cook, 32 N. J. L. 347; Van Allen v. Nolan, 3 Wallace, 573.

The case of Farmer’s Bank v. Cook, supra, does not pass upon the question of service of notice otherwise than as by way of argument. Counsel refers to the case 'of State v. Drake, 33 N. J. L. 194. In that case it is correctly held that a notice under the tax law, served upon the tenant of the one complaining of the tax, is not a sufficient service. There is no reason in concluding that a man’s tenant is his agent. It would be more reasonable to select a man’s regular attorney or solicitor, and yet it will hardly be contended that such notice might be served on such attorney or solicitor. It is held that a notice to a bank cannot be served on a director having no share in the management of the matter about which the notice is given. The directors or trustees, when assembled for the transaction of business, are the agents of the corporation, and notice to them, when thus assembled, is notice to the corporation and binding upon their successors. But notice to an individual director,- who has no duty to perform in relation to the subject-matter of the notice, is not a notice to the corporation. Powles, etc., v. Page, 3 Manning E. & S., 16; The Fulton Bank v. The New York & Sharon Canal Co. et al., 4 Paige, 127.

This general doctrine will not be questioned, and yet in our state the statute provides that a process against a corporation may be served upon a “clerk,” “cashier,” “director,” etc., if the president shall not be found in the county.

Again, it is held, and is certainly a fundamental principle, that notice served on the agent, in order that it may bind the principal, must be served whilst the agent is acting within the scope'of his agency. Miller v. Illinois Central Railroad Co., 24 Barbour, 312.

In this connection,. whilst laying down general principles, it will' be seen that the provision is not that notice shall be given to the principal, and may be given by delivering a copy of a notice to an agent of such principal. The language of the statute is, “no complaint . . . shall be acted upon until the person assessed, or Ms agent, shah be notified.” That is to say, the principal may be notified, or, if more convenient, the agent only may be notified.

It is claimed that the bank is the agent of the shareholders of the stock. It is the duty of the corporation, by its officers, to so direct and manage its affairs as to preserve and promote the highest interest of those interested therein. It is true the officers act directly for the bank, but the bank is an artificial person and can have no interest to preserve or promote, save and only the rights and interest of the share-, holders. None others can have an interest in the management. The bank owns the property, the land, the money, all the assets, the privileges and franchises; but the officers are elected by the shareholders of the stock, and they are selected for the purpose of managing well the property of the bank. The shareholders measure the value of their shares of stock by the value of the property and franchises belonging to the bank. If these be under unskillful or improvident management the amount of dividends and the value of the shares of stock are diminished. If the shares are valued and assessed at a high rate by the assessor, their productive resources are diminished to that extent. There can be no person so well qualified to determine the real productive and market value of shares of stock as the officers who manage and control the bank for the interest and benefit of the shareholders. “When shares of capital stock have any value as an article of sale, it is because the purchaser supposes that the tangible and intangible property and' the franchises are sufficient, if the affairs of the company were wound up, to pay all the debts and pay a surplus in distribution to the shareholders equal to the per cent the purchaser gives.” Ottawa Glass Co. v. McCaleb, 9 Leg. News, 187; Porter, et al. v. Rockford, Rock Island & St. Louis Railroad Co., 76 Ill. 561.

It is self-evident that the value of an article of sale must depend largely upon the skill put forth in the management by the officers. It will be conceded that there is none so suitable to look after all matters pertaining to the assessment and taxing the shares of stock as the officers of the bank.

By the statute it is required that the bank shall keep the list of the names of the stockholders and of the number of shares held by each, and this list is for the inspection, of the officers authorized to assess property for taxaton. From the bank the officer obtains the information ■ that enables him to make and return a list to the clerk.

‘For the purpose of collecting the taxes it shall be the duty of every such bank, or the managing officer or officers thereof, to retain so much of any dividend belonging to the stockholders as shall be necessary to pay any taxes levied upon the shares, until it shall appear that such taxes have been paid.” Secs. 36, 37, 39 Revenue Law, Rev. Stat. 864.

It is the bank that gives the information to the officer and enables him to value the shares. It is the bank that is required to.retain the dividend until the tax is paid, and it is the officer of the bank who is made liable if the dividend is not so retained. It is thus made quite clear that the statute makes the bank the agent of the stockholder for some purposes connected with the taxation of the shares of stock. In the case of The Ottawa Glass Co. v. McCaleb, 9 Leg. News, 188,1 it is stated that “a corporation acts as quasi trustees in managing the business of the shareholders, and it is competent to the general assembly to require the whole taxes to be paid by the corporation, which corporation may then require repayment of the tax on shares to be refunded by the shareholders, either by deducting the amount from dividends or otherwise.”

It has been held by the Supreme Court of the United States, and by the courts of New York, New Jersey and of this state, that under the provisions of the act of congress, the right of the states to tax all shares in the stock of the national banks clearly exists. First National Bank of Mendota v. Smith et al., 65 Ill. 44, and the various authorities there cited.

It has been held in the same case (supra) that the bank is the trustee of the stockholders (p. 54), “and as such possesses the lawful control over the rights and interests of the cestuis que trust, much greater than that of a mere agent for the loan of money. ’ ’

“Certificates of stock are not securities for money, in any sense, much less are they negotiable securities. They are simply the muniments and evidence of the holder’s title to a given share in the property, and franchises of the corporation of which he is a member.” Mechanics’ Bank v. New York Railroad Co., 3 Kern. 627; First National Bank of Mendota v. Smith, 65 Ill. 44, 55.

The banking corporation has a fixed locality where it must transact its business, and there wind up its affairs when it ceases to exist. It is the trustee of the stockholders who must come to its counter for their annual dividends, and their share of assets on final liquidation. 65 Ill. 56, sup'ra.

It is thus seen that the stockholder has a title to a share in the property and franchise of the bank, that he is one of the owners of the bank, that this property and the franchises are managed and controlled by officers selected by the stockholders, that it is managed for the stockholders, that the bank is the trustee of the stockholders, that it is peculiarly and especially the duty of the bank to do and manage everything so as to make the shares of stock valuable, and so as to make them yield a dividend, and to guard against everything that may diminish the amount of dividends. The conclusion is inevitable that the bank must be the agent of the shareholder; it was only necessary to give notice to the bank. It has been seen that even original process could be served on the bank by serving on the president, cashier or director. Some of these notices were served on the president and others on the cashier. There was then sufficient notice to give jurisdiction of the person's of the shareholders. "Was there a sufficient complaint? is the next question requiring attention.

The provision of the statute is, a citizen may “complain that the property of another is assessed too low.” It is not stated what averments the complaint shall contain,' nor is it stated whether the complaint shall be oral or written. The complaints in these cases contain nothing more than that they complain that the personal property of the shareholders of the several banks (naming them) has been assessed too low. It is objected that this is too uncertain; that no person is named, and no traversable fact is complained of, and that it is vague and general.

“To complain of an assessment set opposite to each name on the assessment list, and to ask that evidence may be heard in each and every case and every name on the assessment list, or to the value of the property therein assessed, and to change the value as may seem just, and that the valuation may be reduced or raised as may seem just and equitable,” has been held to be too general and too vague and uncertain. “Such complaint states no fact and is nugatory.” There should be something complained of, and the party appearing should be informed of the matters which he may be required to meet. People v. Reynolds, 28 Cal. 107, 111, and People v. Flint, 39 Cal. 670, 673.

The California statute may not be like our statute in every particular, but no reason is seen why the Illinois courts should hold differently from the authorities cited.

In the complaint held to be nugatory -there .was no complaint of any valuation, or of any parcel of property or to any species of property. It was not complained that the valuation was too high or too low. No person or class of persons is described in the complaint. In these cases under consideration no one person, but a class of persons, is named; no one article of property is described. The' averment is, the shares of stock of the shareholders of the particular bank is valued too low. The complaint and notice might have named each particular shareholder, and they might have designated the number of shares owned by each shareholder. But why ? The shareholders, if named each by himself, and if told the precise number of shares owned by each, would not be the wiser for the information. The description, “shareholders in •a particular bank,” though not the names of persons, is so ■definite and certain, that no other persons can be mistaken for them. There can be no question as to who is meant. It Is the stock, it is the shares of stock, that is described as assessed “too low.” This can be easily understood. This would be the case even though there was nothing else in' the record. But all these shares of stock had been regularly assessed to ■each respective owner thereof, so that the complaint and notice meant that the shares of stock belonging to each of the respective shareholders had.been valued “too low.” The notice and complaint must be held sufficient.

Finding the notice and complaint sufficient, it remains to inquire what wrong or what injustice has been or is about to be done to either of the complainants?

It has frequently been held that a court of equity will not entertain a bill to restrain the collection of taxes, except in eases where it has been assessed upon property not subject' to taxation, or where the tax is unauthorized by law, or where the property has been fraudulently assessed at too high a rate. This doctrine has been announced so frequently, in so many eases and under such varied circumstances, and under such varied forms of expression, that it cannot be necessary .to cite authority. But, for fear that a different doctrine might be insisted upon, the general assembly has enacted sec. 191 of the revenue law. And now “No error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.” In none of these bills is it. claimed that any injustice has been done. The property is clearly subject to taxation. The tax is unquestionably authorized by law. It is not in any one of the bills claimed that the property has been assessed at too high a rate. It is not shown or claimed that anything has been done that affects the substantial justice of the tax itself. It is simply averred that the assessment made and returned by the assessor was increased, and that it should not have been so increased. It is not claimed that the present valuation amounts to more than one-third the actual cash market value of the stock. There is but one exception to this statement. The shareholders of the Union National Bank state that the bank has been taxed on its real estate, and that when the shares of stock were assessed the value of the real estate should have been deducted from the gross value of the stock. They claim that this deduction was made in the assessment of the stock of all the other banks where they owned real estate. But, unfortunately for the shareholders of the Union National Bank, they fail to show that any injustice is done.

If the value of the real estate be added to the assessed value of the stock, the aggregate value falls considerably below one-half the actual cash value of the stock. They simply show that others are assessed entirely too low, whilst they are not yet assessed as high as as they should be. The propriety of assessing any property below its actual value may well be questioned, if not designated as pernicious. If all the property in the county and state was assessed at its actual'value, the grand total would be increased so much that the actual wealth and resources of the state would be known and would amount to such an enormous increase over the present assessments that the rate per cent of taxation might be much, reduced.

The statute provides that personal property shall be valued at its fair cash value, and yet if this cash value is imposed in only one county or town, it would be oppressive to the-people of such county or town. The rule, to be of advantage, should extend throughout the state.

In no one of these cases has it been shown that the property is made to bear more than its just burden of taxation, nor have the owners been debarred of any substantial rights-secured by the law of the land. The tax on the property is just, and no valid reason is made to appear why the owners, should not pay it. A careful examination of the cases presented for the consideration of the court fails to show anything that affects the substantial justice of the tax itself, and until this is shown the court cannot grant the relief sought.

“The statutes unmistakably show that it was the legislative will that mere technical objections not affecting the justice of the tax itself should not be regarded.” Beers, et al. v. The People, 83 Ill. 488; Buck v. The People, 78 Ill. 560, 566; Chiniquy v. The People, 78 Ill. 570, 572; Purrington v. The People, 79 Ill. 11.

The law imposing the taxes is in all its parts “uniform.” It provides for the constitutional “valuation,” and does not go counter to the law of congress.

The complainants fail to show that any act of injustice is about to be done to them. They do not show anything that affects the substantial justice of the tax they seek to enjoin. The injunction asked for in each case is denied. ■

       81 Ill. 556. — Ed.


source: Caselaw Access Project

author: Per Curiam :—

license: Public Domain

text:
      (Superior Court of Cook County.)

    The People of the State of Illinois ex rel. William Bowers, alias William Smith, vs. Thomas E. Barrett, Sheriff of Cook County.
    (1905.)
    1. Extradition — Review by Court of Proceedings. The court has jurisdiction in an habeas corpus proceeding to enquire whether the relator has been properly charged with a crime in the demanding state and whether the papers are properly authenticated. The governor’s decision is not final but is subject to review by the courts.
    2. Same — Discretion of Governor. The governor has the right to refuse a warrant of extradition for any reason whether he doubts the good faith of the prosecution or even if he believes that the defendant will not receive a fair trial. There is no power in the courts to compel him to act.
    3. Same — Right of Court to Determine Question of Fact as to Whether Defendant is a Fugitive From Justice — Governor’s Warrant as Evidence. The court is bound-in a habeas corpus proceeding to determine the question of fact as to whether or not the relator is a fugitive from justice. The governor’s warrant is prima facie evidence of this fact and the burden is upon the relator to overcome the presumption arising from its issuance, but the relator is entitled to his discharge if he can show that he was not physically present in the demanding state.
    Petition for writ of habeas corpus. Cause heard on writ issued by Judge Willard M. McEwen, with Judge John Gibbons sitting as associate.

      Julius Limbach, attorney for relator.

      F. L. Barnett, attorney for respondent,
   Per Curiam :—

This cause comes on to be heard on the petition of the relator, William Bowers, for a writ of habeas corpus, the return of Thomas E. Barrett, sheriff, and a replication of relator to said return. The relator is held in custody by virtue of a writ charging him with being a fugitive from justice, issued on complaint before a justice of the peace, and also upon an extradition warrant issued by Hon. Charles S. Deneen, governor, involving the same charge, upon requisition of the governor of the state of New York.

By the pleadings there is sought to be raised by relator the issue of whether or not he was or is a fugitive on the charge mentioned in the extradition proceedings from the state of New York. It appears that an indictment is pending in the county court of the county of Kings, returned by grand jury, entitled “The People of the state of New York against Prank Brown, etc., and George Whitney, alias William Smith, alias Butch Smith,” charging the defendants therein with having, on the 24th day of November, A. D. 1905, burglarized the dwelling house of William J. Laroch, in said county of Kings. And it is upon this charge that relator is sought to be extradited. There is no question or dispute before the court, and it is conceded, that the burglary in question was committed on the date charged in the said indictment, but the relator contends that he was not in the state of New York at or about the time of the said November 24th, 1905, nor at any time during said month of November, and that he was not an accessory to said crime, nor was he in the state of New York at any time when he could have been a party to the crime charged, and is not in fact a fugitive from the justice of the state of New York.

There arises, therefore, the questions: 1st. As a matter of law, has the superior court of Cook county jurisdiction to inquire into and settle the question of fact in an extradition case, whether or not the relator is a fugitive from justice, and, 2nd. If it has such jurisdiction, what weight of evidence is required? 3rd. Is the relator in fact such fugitive?

What is the Jurisdiction of the Court.

The argument is made on behalf of the sheriff, that, because the relator necessarily on such an issue, proves, an alibi, therefore it amounts to making a defense in these proceedings which ought to be made in the state of New York. There is some support in this contention based upon the authority of several cases which adopts this as an argument or reason why a court will not entertain this inquiry and treats the governor’s warrant as conclusive. As a matter of principle it does not seem to us that this is a real test. If the constitution of the United States, and the federal statutes, grant the authority to the court to settle this question of fact, then the incident that an alibi and complete defense is shown cannot destroy the authority conferred. In other words, the test is to be found in the power created by the constitution and the -federal statutes and not in the consequence of procedure in the court.

The constitution of the United States, article 4, section 2, clause 2, provides as follows: “A person charged in any state with treason, felony or any other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.”

In order to execute this section of the constitution, congress enacted the following (section 527, Rev. Stat:): “"Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging: the person demanded for having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. * * *”

There seems to be no difference among, the several courts that the question of whether a relator has been properly charged with a crime in the demanding state, and whether the papers are properly authenticated, and any question of law arising on the face of the paper, may be submitted to the courts to determine the right to extradite. The govern- or’s decision upon such a question of law involved has no finality and is subject to review by the courts. The right' seems to be conceded to the governor to refuse his warrant, as a matter of discretion, for any reason, whether he doubts the good faith of the prosecution or even if he considers that defendant sought to be extradited will not receive a fair trial in the court in which he is charged, and there is no power in the courts to compel action by the governor, regardless of the motives or reasons which inspired his refusal to" act.

The constitution contemplates that a person shall be “charged” in one state, and that he “shall flee from.justice and be found in another state,” and then the executive “shall give him up on demand.” . If the executive has not the final right to determine whether the person demanded is charged legally, it would seem that he had no more of a right to finally determine that the person charged was in the other state and fled from its justice. The circumstance that the former is a question of law and the latter a question of fact, does not change the principle. If the individual arrested upon a governor’s warrant has a right (1) to be legally charged with a crime; and (2) to be adjudged a fugitive from the demanding state, then it is as much his privilege to appeal to the court in one instance as the other. The statute does not make the governor a judicial officer to determine conclusively the sufficiency of the requisition proceedings. When the demand is made reciting that a person is charged and that he is a fugitive, it becomes his duty to issue an extradition warrant for his arrest and transfer for trial. But in doing so his act is purely executive — purely ministerial. And that a person seized upon a warrant, to be carried away from his home and perhaps his witnesses and means of defense to & foreign jurisdiction, cannot appeal to the court for a de-termination of the essentials to his extradition, is to leave "him without power to make a contest of fact or law upon .-anything which the governor or officials of the demanding (State may represent. To the extent of depriving him of his liberty until he came unáer-the force of the mittimus of the .court in which he is charged, he would be deprived of his liberty without due process of law. It may be said that a -party has the right to a trial before the governor. There is mothing in the law which says that he may, and it rests entirely in the discretion of the governor whether he will issue his warrant, with or without trial, or not. As a matter of practice, in the great majority of cases, no hearing or notice of hearing is ever given to the person involved. If the governor has the right arbitrarily to refuse his warrant, then he has the same power to arbitrarily issue such warrant upon any showing which he pronounces sufficient. The governor is presumed to have issued the requisition in discharge of his official duty. There are no presumptions against the bona fides of his act. His warrant when issued is of the same character as any other warrant which demands the seizure of the person. Its authority depends upon the law and the representations to the1 issuing power, and where no direct method is provided by law for the testing of the sufficiency of the warrant, it is very clear that every court with jurisdiction in habeas corpus proceedings may inquire into the legality of a detention.

The habeas corpus act of this state provides that cause of detention may be inquired into, recites specific instances where the relator may be discharged and provides that a prisoner shall not be discharged, if he is in custody, among other causes, “for any treason, felony or other crime committed in any other state or territory of the United States, for which such prisoner ought, by the constitution and laws of the United States, to be delivered up to the executive power of such state or territory.” By implication this act contemplates that the court will issue its writ to inquire into causes of this nature, and if the court has the power to issue the writ, which is clear, how is it going to determine whether the prisoner “ought by the constitution and laws of the United States” to be delivered up, unless it determine the essentials of extradition, viz., is he legally charged by the demanding state, and has he fled from the justice of that state?

As a matter of authority, the several courts of the different states have disagreed on the right to inquire into the question of fact of the relator being a fugitive. We shall not at-, tempt to distinguish these cases as they are in irreconcilable conflict. The supreme court of Illinois has never determined the question. The decision cited in the brief of the sheriff of a recent case, number 4614, People ex rel John McNichols v. Thomas Barrett, Sheriff, in an oral opinion, holds that the governor’s warrant in the ease involved was issued upon a sufficient affidavit, and does not attempt to decide the question involved here. Counsel for the sheriff contends that in effect, on the facts in the particular case, the supreme court did decide adversely to relator’s contention, but conceding that a showing was made in the McNichols case before the supreme court, disputing that he was a fugitive from justice, we can not say but what the supreme court held evidence insufficient rather than adjudging that the subject was not ■open to inquiry.

The language of the first clause of exceptions affords an argument by comparison. It says he shall not be discharged if he is held by any process by any court or judge of the United States. No discretion is given .to inquire into the process and determine if he “ought” to be remanded. Jurisdiction is denied by implication just as it is given in the extradition clause where the court decides whether the relator “ought” to be given up.

I'he authority of the federal courts, as we view it, however, appears to be almost entirely in favor of the right to make an inquiry as to this disputed question. All the power exercised in extradition matters is by virtue of the constitution and the statute. As is said in Ex parte Morgan, 20 Fed. 298: “In a case of this kind the chief executive of the state can not act on the ground of public policy. His power and his only power to extradite a prisoner from his state must be found in the statute and law of the United States, and if it 'is not there it does not exist. Not only the power, but the manner of its exercise is based exclusively on the constitution of the United States and the law of congress passed in pursuance thereof. Interstate extradition is regulated by law. No such power can ever be exercised by the chief executive of the state on the ground of comity. (Rorer, Inter-State Law, 225.) Nor has it ever been in this country properly and legally exercised on such ground.”

That the federal courts hold that the question is open to judicial inquiry, is stated in In re Cook, 49 Fed. 833, 839. “It is essential, to comply with such executive demand, that the prisoner whose surrender is demanded, should be adjudged a fugitive from justice of the demanding state. The decision of the executive is not conclusive of that fact, and so we are of opinion that the action of the executive is reviewable by federal tribunals, and that it is competent for the court to determine whether or not in fact the demanded prisoner is a fugitive from justice.”

To the same effect is the decision of the supreme court of the United States, in Roberts v. Reilly, 116 U. S. 95, on the legal requirement considered the court say: “It must appear, therefore, to the governor of the state to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is sufficiently charged with the crime against the laws of the state from whose jurisdiction he is alleged to have fled, by an indictment or an affidavit certified to as authentic by the governor of the state making the demand, and second, that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand.”

Other federal authorities which seem to bear this out, are: Ex parte Hart, 10 Am. Crim. Rep. 308, 63 Fed. 249; Ex parte Joseph Smith, 3 McLean, 121, 22 Fed. Cas. 373; Roberts v. Reilly, 116 U. S. 80; Hyatt v. People ex rel. Corkran, 188 U. S. 691.

It is contended by counsel for the sheriff that the latter case is not an authority to support the view, and that infer•entially it is to the contrary. The justice pronouncing the decision in that case refers to the possibility of a court refusing to review, in the following language: “If, upon a question of fact made before the governor, which he ought to decide, there was evidence pro and con, the courts might not be justified in reviewing the decision of the governor upon such question. In a case like that, where there was some evidence sustaining the finding, the courts might regard the decision of the governor as conclusive.” There is no contention that there was any evidence offered pro and con before the governor in the case at bar. Then the court goes on to say: “But here, as we have the testimony of the relator (without contradiction) and the stipulation of the counsel as to what the facts were, we have the right and it is our duty on such proof and concession, to say whether a case was made out within- the federal statute justifying the action of the governor. It is upon the statute that the inquiry must rest.”

In effect the supreme court holds that it is conclusively shown that relator was not physically present in the demanding state, and that therefore the governor’s warrant could be reviewed by the court, and held void. If the court had any jurisdiction whatever to consider the weight of relator’s evidenee, and a stipulation of facts, then it would have the same jurisdiction in another case where such evidence might have been in a less high degree.

In conclusion the court says: “We are of opinion that, as the relator showed, without contradiction upon conceded facts, that he was not within the state of Tennessee at the times stated in the indictments found in court, nor at any time, when the acts were, if ever, committed, he was not a fugitive from justice within the meaning of the federal statute upon that subject, and upon these facts the warrant of the governor of the state of New York was improperly issued. The judgment of the court of appeals, of the state of New York, discharging the relator from imprisonment by reason of such warrant must be affirmed. ’ ’

Some cases seem to draw distinction between the powers of the federal courts and of the state courts to review this disputed question of fact. There is no difference in principle. The finding of the governor is no more binding on one than on the other. Ex parte Reggel, 116 U. S. 642; S. C. 5 Am. Cr. Rep. 218 and note; Robb v. Connelly, 111 U. S. 624. The extradition statute does not make any provision regarding courts and their jurisdiction to review. It is necessary, therefore, to go to the general principles of jurisdiction regarding the protection of personal liberty, and both the state and Federal courts in settling the question have to examine into their inherent jurisdiction in the particular ease considered. The jurisdiction in habeas corpus matters in Illinois, is of the fullest and most sweeping'kind. It is made the duty of every judge in the state upon whom the jurisdiction is conferred, to examine under a .penalty into complaints against restrictions upon personal liberty. And so jealous has been the policy of the law in that regard, that no appeal is permitted in habeas corpus cases, and each judge is made free and independent of review or question by a court of appeal. So fixed is this policy that legislators have repeatedly refused, although strongly urged, to pass a law granting such appeals. It becomes, therefore, in every instance a matter for the judgment and conscience of the particular judge who entertains the proceedings.

After an examination of all the authorities presented on both sides, we are forced to the conclusion that both as a matter of principle, and on the best authority, this court is bound to examine into the question of fact.

And we believe the true rule to be that the governor’s warrant is prima facie evidence, and that the burden is upon the relator to overcome the presumption arising from its issuance, and that the relator, if he can demonstrate by satisfactory evidence that he was not physically present in the demanding state, is entitled to be relieved from the force of the warrant.

The Evidence Adduced.

In further support of the governor’s warrant, Josephine Gallagher was sworn and examined as a witness. She testified to the circumstances of the alleged burglary and identified the relator as having been on the porch of Laroche on the evening of the 23rd of November, 1905, at about 6:30 o’clock; that she saw him through the window and held a short conversation with him; that there was an electric light "on the street. In her description of the man she saw, she states that he was inclined to be dark and rather rough looking (relator is light); that about the same time on the evening following, she saw the same man again on the porch. She then testified that she had an interview on the 24th and not on the 23rd. She states that she had not seen the man since coming from New York, at the time she testified, but later changed her testimony and said that she had seen him in the court room that'morning. The burglary occurred at 7:30. On cross-examination she stated that she saw relator through the lace curtain, and through the windows. This seems to be the testimony on which the indictment was procured against relator in New York-

Opposed to this testimony was the evidence of several witnesses. Dr. H. S. Warren was called, and testified that he was family physician of the relator and had treated both relator and members of his family. That on three or four occasions about November 24th, and on that date he had dressed relator’s hand for a wound in the center of the hand. At the time of the hearing, December 23rd, relator exhibited a partially healed wound. The doctor’s time book showed a call on November 24th. The weight of the evidence is considerably lessened by the careless manner in which the book appears to have been kept and posted. There is nothing, however, to indicate any lack of reputability of the physician, or that he had any motive in swearing falsely concerning the entries in his book.

A witness, John J. McLaughlin, residing at 1551 Monroe street, was introduced on behalf of relator and testified that he had since about the first of last October been engaged as a repairer and painter of lamp posts under a contract with the city of Chicago; that relator was in his employ and received a salary of twenty-five dollars ($25) a week as an inspector, principally, to follow up the work of the men and report on the same. That on Saturday, the 25th of November, at Graham’s bank, at 134 Madison street, he paid relator his weekly wages of $25. He recalls that he saw him also on the day previous. In connection with his testimony McLaughlin produced his book of entries concerning the painting contract. This book has every evidence of being a genuine book' and kept from week to week, and shows that relator by the name of William Bowers, received his weekly salary for the entire period including the payment on November 25th. His time books and pay rolls of the work of the men employed tally with the book, apparently, in every particular, and if his testimony be taken as true, and that about Saturday noon, of the 25th day of November, he made the payment, it is impossible that relator could have been in the city of New York on Friday evening at 6:30 or 7:30 o’clock. Of McLaughlin it may also be said that there is nothing in his testimony or in the circumstances surrounding him to cast suspicion or doubt upon him or his story. He appears to have held political position prior to engaging upon this contract, but nothing has been offered in any way to impeach him.

Another witness, William Skidmore, engaged in the restaurant and saloon business on West Madison street, testifies that on the 24th day of November, 1905, he loaned to relator the sum of $15, that one Patrick J. King was in his place and that at his request, he, Skidmore, loaned Bowers $15, and King $10. It was the custom of Skidmore, in making small loans or disbursements of this kind, to make a pencil memorandum on a slip and later to transfer the same to the small account book, and in the evening, on the closing of his place and checking up cash with the cash register, to use another book showing the cash register footings and footings from these slips, for the purpose of making up the cash of the day. There appears upon the memorandum of petty cash, a loan, “Butch, W. R. Skid. $15.00.” Before the word “Butch” appears a check mark which it was usual to make on checkins the cash up with the cash register. The footings of the day appear on the book used for that purpose in regular order, among other entries, without alterations, and correspond with the entries in the petty cash. As the word “Butch” is written in the check column to the left, the check mark before the name is a strong circumstance, taken in connection with the other check marks which appear in the center of that column, corroborating the contention of realtor that the word was written in on the 24th day of November. The testimony of Skidmore, in connection with his books and entries, is strongly in favor of the conclusion that the transaction occurred as related. Skidmore is corroborated as to the circumstance by Mr. King.

It further appears by the testimony of witnesses, and the station sheets of the Des Plaines street station that Bowers was charged with an assault, and that a warrant was pending for him and on Monday the 27th day of November, he appeared and gave bail and afterwards on hearing was discharged. There was some other testimony of a non-conelusive kind, which we do not deem important.

After considering all the evidence and examining at great length the witnesses and recalling them for further examination, placing in the scales on the one hand the testimony of Miss Gallagher, which seems of a doubtful kind against the testimony corroborated by books, and especially the books and papers of McLaughlin, we feel compelled to hold that the relator has clearly established by evidence beyond a reasonable doubt, that he was not in the state of New York at the time of the commission of the burglary, and that he was not and is not a fugitive from justice on such charge, from the state of New York. Holding as we do, it follows that the relator is entitled to his discharge, and that will be the order. Relator discharged.


author: McEwen, J.,

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

    Standard Glass Company, et al. vs. Chicago Telephone Company.
    (May 29, 1907.)
    1. Telephone Companies — Right of Subscriber to Attach Extensions to Telephone. A provision in a contract between a telephone company and its subscriber that the subscriber shall not attach to the telephone company’s wires any equipment or apparatus not furnished by such company, is a valid regulation and the subscriber is not justified in installing his own equipment.
    2. Multifariousness — Joinder of Parties as Complainants. To permit a number of different parties having separate interests to join there must be a unity of principle, a unity of questions involved and such a unity of facts that there is practically nothing for the court to do but to determine one set of facts.
    Bill for'injunction. Heard before Judge Willard M. Mc-Ewen.

      Statement of Facts.

    The bill was filed by a large number of telephone subscribers having contracts with the defendant telephone company containing a provision as follows:
    ‘ The lessee agrees not to make, permit or use any electrical or mechanical connections, contrivances or apparatus with the lines, instruments or equipment furnished by the lessor, without the consent of the lessors.” The bill alleged that defendant refused to furnish extension telephones at reasonable rates and that accordingly the complainants had purchased their own extension wires and instruments and had connected the same with the lines and wires of the defendant company; that such company was threatening to terminate the contracts of complainants and to deprive them of telephone service on account of the violation of the covenant in question, which covenant was alleged to be unreasonable and void. Ex parte injunctions were issued.

      Beach & Beach and Smoot & Eyer, for complainants and. intervening petitioners.

      Holt, Wheeler & Sidley, for defendant.
   McEwen, J.,

(orally). I don’t think it is necessary tosíate the questions involved arising upon the contract, because the particular question here is of the matter of extensions which are claimed to be violations of the contract. I have been greatly interested in the question of fact, whether extensions were reasonable things in the nature of attachments to facilitate the use of the telphone in the office or place of the subscribers. I am inclined to the view that upon the showing made here they are such additions to the telephone that the company has the right to insist- that it may supervise the putting in of those extensions and control them in the same manner that it does all the rest of the telephones and that the clause in the contract is not unreasonable or illegal.

But there is a further question in the case which has impressed me, which I think goes to the right of the parties to maintain the case at all, and that is the question of the right of the complainants to join in this proceeding. That point was very carefully and fully argued and the growth of the law in-that particular shown by the different cases. I think that the gist of them all, as applied in the present time, is that for different parties having separate interests to join,, there must be a unity of principle, a unity of question involved and such a unity of facts as that there is practicaly nothing for the court to do but to determine one set of facts.

Now, in this case there is a unity of principle, there is the same question of the validity of this clause of the contract; but as to the extensions there is a separate inquiry for each extension as to its quality and its manner of putting in and its effect upon the telephone and its effect upon the system generally. So that I think the cause cannot be maintained by these several complainants, and it follows, therefore, that the intervening petition cannot be permitted. The injunctions will be dissolved and all the proceedings dismissed, intervening petition and original petition.

In the Mason and Wyman case,the ruling will be the •same.

NOTE.

For a case similar to the above see Beach et al. v. Chicago Telephone Company, 1 Ill. C. C. 158, which is pending on appeal in the appellate court of Illinois. Upon the right of several complainants to join in one proceeding, see Chicago Telephone Company v. Illinois Manufacturers’ Association, 106 Ill. App. 54; City of Chicago v. Collins, 175 Ill. 445. — Ed.


author: Tuley, J.:—

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. Harry Boer.
    (July 10, 1901.)
    1. Larceny — Indictment, Sufficiency of Instruction. An instruction in a trial, under an indictment for larceny of water from a city which informs the jury that “the taking of water from a city main, without a permit so to do, with intent to use the same without paying therefor constitutes larceny of whatever quantity is so taken,” is had because it omits the “felonious intent” necessary to constitute the crime of larceny.
    2. Criminal Law — Rights of Defendant — Instructions. A defendant has a right in all cases to insist that the jury he instructed that they must find all the constituents of the crime to exist, and it is no answer to say that although an instruction does not- state the law correctly, the evidence shows that the defendant is guilty. It is the right of the defendant to demand' that he be legally convicted.
    3. Same — Erroneous Instructions, Effect of. Where proof of guilt is clear, an erroneous instruction will not he a ground of reversal unless it appears that the jury may have been misled by such erroneous instruction.
    4. Instruction by State as to' Necessity of Provino Every Circumstance Relied Upon. An instruction that it is not necessary for the state to prove every circumstance relied upon to show the guilt of the defendant, but that it is sufficient, if, upon considering all the evidence, the jury believe the defendant guilty, held erroneous in any case where circumstantial evidence is relied upon.
    5. Criminal Law — Presumption of Innocence. Strong suspicion or strong probabilities of guilt are not sufficient to overcome' the presumption of innocence with which the law clothes every defendant.
    6. Indictment fob Larceny of Water Prom a City Water Main— New Trial. The defendant was indicted and tried for larceny of water from a city. Upon a motion for new trial it appearing that erroneous instructions had been given to the jury, and the proof of defendant’s guilt not being clear upon a review of the evidence it was held that a new trial must be granted.
    Indictment for larceny of water from the city. Motion for a new trial. Heard before Judge Murray F. Tuley, July 10, 1901, criminal court of Cook county. The facts are stated in the opinion)
   Tuley, J.:—

In this case two written instructions were asked by the state’s attorney, together with a number.of general printed or stock instructions. The two written instructions, in substance, inform the jury, “That the taking of water from a city main, without a permit so to do, with intent to use the same without paying therefor, constitutes larceny of whatever quantity is so taken.” The state’s attorney concedes, that both such instructions are had, because they omit the “felonious intent” which is necessary to constitute the crime of larceny.

The statute defines larceny to be the stealing, taking and carrying away, etc., of the property of another. There could! "be no stealing unless there he a “felonious intent” in the taking and carrying away. The state, in its numerous printed instructions, omitted to ask for one defining larceny, which is always asked for and given in larceny cases. This omission was not noticed by the court. If such instruction had been asked and given to the jury, the defect in the two written instructions would have been obviated.

There is no instruction among the many given which tells the jury that there must be a “felonious intent” in the taking and carrying away of the water. A defendant has the right in all cases to insist that the jury be instructed that they must find all the constituents of the crime to exist, and it is no answer to say that although an instruction does not state the law correctly, the evidence shows that the defendant is guilty. It is the right of the defendant to demand that he be legally convicted. There are decisions of the supreme court to the effect that where the proof of guilt is clear, an erroneous instruction will not be a ground of reversal unless it appears that the jury may have been misled by such erroneous instruction. I have carefully read the‘entire testimony given in this case to see if the guilt of the defendant is •clearly shown, and I have arrived at the conclusion that it is not, and also that there is grave doubt whether the evidence is legally sufficient to maintain a verdict of guilty. It is, when read in cold type, not as strong against the defendant as I supposed it to be at the time of the trial.

In 1898 a four-inch water pipe was laid from a corner of the premises of the Continental Packing Company, for a distance of about five hundred feet into the company’s pump house. At the corner referred to it connected with a pipe upon adjoining premises, which connected with the city water main in the public street. No water meter was attached to said pipe. When the pipe on the adjoining premises and the connection with the main was made, does not appear. The pipe was laid by two men working after hours, and as late as 12 a. m. at night for one week. One of the men, Beau-champ, was a witness; he testified that the defendant Boer one day told him that the engineer wanted to see him about laying some pipe, and after that he laid some pipe under the direction of the engineer other than the pipe in question and sometime after laid the pipe in question by the direction of the engineer. He received his orders from the engineer, and did not see the defendant Boen about at any time while the pipe was being laid.

There is no sufficient evidence to show that the defendant ever knew that this pipe was laid or was being laid, or that he ever knew of any water passing through this pipe, or that he directed or advised in regard to the same in any way. Nor is there any direct evidence that any water ever passed through this pipe, or that any pump was ever connected with the pipe.

The city, in September, 1900, was engaged in looking for bogus pipe in that vicinity for two or three days prior to discovering the connection of the four-inch pipe in question', with the city water main in the public street. The city workmen then traced the pipe to and under the .company’s old ice house, which stood at the corner where the pipe connecting with the main entered the company’s premises. They there found that under the floor of the ice house the pipe had been broken, the break indicating that it had been very recently broken, and at the company’s pump house, the four-inch pipe on the inside of the wall appeared to have been recently broken off just under one of the pumps. There was some water found in the four-inch pipe when it was uncovered at various places, but there was a shut-off in the pipe just outside the company’s premises, and there is no evidence to show it was ever opened, or if opened, when it was closed, nor was there any evidence that the water found in the pipe was water from the city main.

In the absence of proof that the company ever used water through this pipe, it cannot be inferred that the water found in the pipe was necessarily from the city main. "While the evidence raised a strong suspicion that the company did use water through the pipe, there is no evidence connecting the defendant with such use or tending to show that he knew of such use. The evidence shows that he was, “the superintendent of the packing house, ’ ’ but does not show what were his duties as such superintendent, or that he had any control over the' engineer who directed the laying of the pipe or over the pump house referred to in the evidence.

The city presented a bill against the Continental Company, of some $29,000 for water claimed to have been used during some three years previous through the four-inch pipe. Conferences took place between one Goodwin, who appeared to act in the interests of the company, and the city officials. At one" of these conferences the assistant corporation counsel, Mr. Nourse, the head of the city water department, and the defendant Boer were present. The object was to arrive at a settlement of the claim of the city. I have carefully read the evidence as to what took place at this conference, and also as to the conversations that took place subsequently at the pump house wherein the defendant took part. I fail to find any admission by the defendant that any water had been used to his knowledge, coming through the pipe. It was expressly said that Mr. Boer was present to give any information that he possessed in regard to the matter, and did give some information as to the length of time the engineer had been in the employ of the company, the capacity of the pumps and as to the time they usually ran. Two or three times in the conferences at Avhich he was present, Boer, it appears, declared that he “had nothing to do with the pipe” in question, and he did not admit that any water ever was used through this pipe by the company.. On the contrary, he “did not believe a drop of water had ever been used.” I fail to find any evidence in the conversations referred to or in conversations testified to by Nourse with the defendant Boer, that he made any admission implicating himself as directing or knowing of the laying of the pipe, or the use of water through the same.

The assistant corporation counsel, by judiciously made threats to cut off all water connection with the packing company’s premises, succeeded in compelling the packing company to pay $6,000 for water claimed to have been illegally used. It also appears in the evidence that there were two meters connected with authorized pipes running into the packing company’s plant and that the meter readings for some six days after the uncovering of the four-inch pipe (which was the 13th of September, 1900), showed an increase of water used each day of from ten to twenty-nine thousand gallons and an increase above the former daily average of about twenty-three thousand gallons, but there were two artesian wells (that had pipes running into the same well' where this four-inch pipe led into) which were sometimes used and sometimes out of use and the evidence failed to show whether water from these two artesian wells, or either of them, was used during the time of this “increase” of the use of water.

I am inclined to think that the evidence that the packing company paid some six thousand dollars for water claimed by the city to have been used through the pipe in question, may have influenced the jury in their verdict, notwithstanding the fact that the court ruled out such evidence upon its subsequently appearing during the trial that the payment of the $6,000 was a forced payment and was made because of threats made by the assistant corporation counsel to have the city water cut off from the company’s plant if that amount was not immediately paid. The state, it is clear, has been much hampered in obtaining evidence as to what took place upon the company’s premises, and by reason of its failure to find the parties who could testify to the same, but it does not appear that the defendant is responsible therefor. If the company did steal any water from the city, the defendant should not suffer for the same merely because he was superintendent of the packing house with no evidence as to what were his duties or powers as such, unless it is shown that he ordered the laying of the four-inch pipe, or ordered the use of the water through the same, or in some way aided, abetted or advised the laying of the pipe or the stealing of the water." Strong suspicion or strong probabilities of guilt are not sufficient to overcome the presumption of innocence with which the law clothes every defendant.

The motion for new trial must be granted.

I will say in addition that in my opinion the printed stock instruction to the effect that it is not necessary for the state to prove every circumstance relied upon to show the guilt of the defendant, but that it is sufficient, if, upon considering all the evidence, the jury believe the defendant guilty, is not good law in any case like the present where circumstantial evidence alone is relied upon.


author: Holdom, J.: — ■

text:
      (Criminal Court of Cook County.)
    The People of the State of Illinois vs. John Stark, et al.
    (February, 1904.)
    1. Arrest Without Warrant. To justify an arrest without a warrant the offense must be committed in the presence of the officer making the arrest.
    25. Personal Liberty — Defined. Personal liberty consists of freedom from physical and personal restraint; the right to the pursuit of happiness; to go where one chooses and to pursue such lawful occupations as may seem suitable. In its broad sense it includes freedom from unlawful arrest and restraint and from unlawful searches and seizures.
    3. Arrest — Search for Deadly Weapon. As incidental to an arrest an officer may search the person arrested for a deadly weapon, but not otherwise.
    Indictment for assault and battery. Heard before Judge Jesse Holdom.'
    For statement of facts see opinion.

      Robert N. Holt, assistant state’s attorney, for the people.

      W. P. Thornton, for defendants.
   Holdom, J.: — ■

The defendants, police officers of the city of Chicago, stand indicted by the grand jury of this county for an assault and battery. The undisputed facts alleged to constitute the crime stated briefly are that one Muff at midnight complained to the defendants that the prosecuting witness, a vender of fruit at a stand in front of his store, had, during a dispute then immediately preceding the complaint, as to the weight of some grapes which Muff, had purchased, drawn a revolver upon the said Muff; thereupon the defendants proceeded to the fruit stand and against the protest of the prosecuting witness forcibly and against his will searched the pockets of his clothing for the alleged revolver and finding none, released him — no arrest being made. In the struggle the clothing of the prosecuting witness was disarranged and some slight scratches inflicted upon his person. Defendants seek to justify their conduct, contending that they simply discharged their duty as police officers under the law, and in support of such contention cite sec. 1996 of the municipal code, which is as follows: “Any policeman of the city of Chicago may, within the limits of said city, without a warrant, arrest any person or persons whom such policeman may find in the act of carrying or wearing under their clothes or concealed about their person, any deadly weapon of the character in this article specified, or any other dangerous or deadly weapon.” Counsel for defendants further rely upon North v. The People, 139 Ill. 81, as justification for the acts complained of. It is apparent from! what will hereafter appear that neither the ordinance nor the North Case justify the conduct of the officers.

It is axiomatic and a fundamental principle of the common law, and the same principle stands engrafted into the federal and state constitutions and the statutes of most of the stages of the union, that to justify an arrest without a warrant the offense must be committed in the presence of the officer or the person making the arrest. .

The constitutions of .this state and of the United States provide “that the right of the people to be secure in their persons, homes, papers and effects against unreasonable searches and seizures shall not be violated.” Art. IV, 1st Amendment to Constitution of the United States; Constitution of Illinois, see. 6, art. II.

Personal liberty has been judicially defined as freedom from physical and personal restraint; the right to the pursuit of happiness; freedom to go where one chooses and to pursue such lawful occupations as may seem suitable; and in its broad sense it includes freedom from unlawful arrest and restraint, from unlawful seizures and searches, from assault and battery, etc. Munn v. Illinois, 94 U. S. 113; People v. Gillson, 4 Am. St. Rep. 465; Slaughter House Cases, 16 Wall. 36; Butcher’s Union Co. v. Crescent City Co., 111 U. S. 746; People v. Marx, 99 N. Y. 377; In Matter of Jacobs, 50 Am. Rep. 636.

These principles are forcefully sustained and upheld both by reason and authority in North v. The People, supra, where they properly arose, and were questions in the case presented for decision; for other errors the sentence of death.by the nisi prius court imposed upon North was reversed. The court said on page 104: “The arrest or attempted arrest here was without a warrant. It is provided by see. 4, div. 6 of the criminal code, that ‘an arrest may be made by an officer or by a private person without warrant, for a criminal offense, committéd or attempted in his presence, and by an officer when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ The seventh section of the same division is that ‘ When an arrest is made without a warrant, either by an officer or a private person, the person arrested shall, without unnecessary delay, be taken before the nearest magistrate in the county, who will hear the case for examination, and the prisoner shall be dealt with as in cases of arrest upon warrant.’ ”

Sec. 2 of art. 6 of the state constitution provides, “No warrant shall issue without probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized,” and “No person shall be deprived of life, liberty, or property, without due process of law;” and on page 105, supra, the court said, “Under like restrictions in the constitution it has been held, in some states, that arrests shall not be made without a warrant except for felonies and for breaches of the peace committed in the presence of the, officer arresting (Pinkerton v. Verberg, 78 Mich. 573; In re May, 41 Mich. 299; State v. Hunter, 106 N. C. 796), while in other states it seems to have been held under the same constitutional restrictions, that arrests may be .made for misdemeanors generally, committed in the presence of the officer making the arrest. White v. Kent, 11 Ohio St. 550; Thompson v. State, 30 Ga. 430.” Under neither of which constructions would the acts of the defendants be lawful. If they had arrested the prosecuting witness upon the complaint of Muff that a crime had been committed and taken him before the nearest magistrate for examination, as provided by the statute, another and different question would arise; but under no circumstances could they take cognizance of the alleged infraction of the law, search the accused person, and then, after a scuffle brought about by his resistance, adjudge him not guilty and release their hold upon him. And it would seem there could be no justification for their conduct" when it is borne in mind that he was a citizen settled in the community, pursuing his lawful avocation upon his own premises, the fruit stand being run in conjunction with the store before which it stood.

Had the officers arrested the prosecuting witness, then as incidental to the arrest they might have searched him for a deadly weapon; but as he was not under arrest his person was sacred from search for any purpose. 2 Hawkins’ Pleas of the Crown, ch. 13, sec. 28; 3 Wharton, Criminal Law, sec. 2927 (7th ed.); Spalding v. Preston, 21 Vt. 9; Clossom v. Morrison, 47 N. H. 482,

Sec. 1996 of the municipal code, supra, must be construed in the light of the constitution and sections of the criminal code before referred to, and in so doing its legal effect and power is found to be environed and restricted to the right in a police officer to search a citizen for a deadly weapon only as an incident to an arrest for a breach of the peace or other criminal offense. Were the law otherwise, every citizen’s person would be subject to search for concealed weapons at the whim or caprice of any police officer. To paraphrase a saying of Lord Camden, ‘ ‘ Such a condition would be worse than the Spanish Inquisition, a law under which no American would wish to live an hour.”

On the facts as admitted by Stark and 0 ’Brien they acted without warrant of law. Their acts constitute an assault and battery for which they stand indicted and of which they are found guilty. Believing that they thought they were at the time acting in consonance with a sanctioned custom of the police department, and that they were not actuated by malice, they will be punished by the infliction of a fine of five dollars each.


author: Holdom, J.:—

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

    Leiter, et al. vs. Leiter, et al.
    (1902.)
    1. Probate Courts — Sale of Real Estate to Pat Debts. The probate court has jurisdiction to sell real estate in which the decedent had any claim or interest, for the purpose of paying debts although the decedent was not seized of title at the time of his death.
    2. Same — Interest of Heirs Cut Off. Where real estate is sold to pay debts under an order of the probate court, the interest of the heirs in the premises sold is divested.
    3. Same — Effect of Decree on Rights of Judgment Creditor. A bill was filed to foreclose a mortgage, a receiver was appointed and a sale was had. During the period of redemption the mortgagor died and the interest of such mortgagor was sold to pay debts under a decree of the probate court. A judgment creditor was made a party to the probate court proceedings. The decree of sale in the probate court was made subject to the master’s certificate of sale and the possession of the receiver. The judgment creditor thereafter intervened in the foreclosure suit and sought to subject the funds in the hands of the receiver to the payment of his judgment. Held, that such judgment creditor was bound by the decree of the probate court; that he must look to the assets In course of administration in such court for a satisfaction of his claim; that he should have set up his claim in the probate court proceeding and his failure to do so estops him from asserting any claim paramount to that acquired by the purchaser under the probate court decree.
    Bill to-foreclose mortgage. Cross-bill of judgment of judgment creditor to subject funds in hands of receiver to payment of judgment. Order dismissing cross-bill. Motion to set aside same. Heard before Judge Jesse Holdom.
    For statement of facts see opinion.
    -Albert N. & Edward P. Eastman, solicitors for defendant, Henry A. Eastman.

      S. A. & W. G. French and H. C. Noyes, solicitors for cross-complainant.
   Holdom, J.:—

This is a motion to set aside an order dismissing the cross-bill of David RanMn, seeking to subject the funds in the hands, of the receiver of the premises foreclosed, to the payment of a judgment held by him as assignee against the mortgagor, T. Benton Leiter.

Subsequent to the sale of the mortgaged premises and during the period of redemption (T. Benton Leiter, mortgagor and judgment debtor, having died soon after the filing of the bill to foreclose) application was made under the statute, in the estate of Leiter, to sell his claim and interest to the mortgaged premises to pay debts established against his estate in excess of personalty, in which proceeding Rankin was made a party defendant and of whom the probate court acquired jurisdiction. The probate court had jurisdiction to order sold in due course of administration, to pay debts, any real estate in which deceased had any claim or interest, although not seized of title at the time of his death. Stow v. Kimball, 28 Ill. 93; Cutter v. Thompson, 51 Ill. 390.

In Cutter v. Thompson, 51 Ill. 390, the court said, page 392: “We do not believe it was the design of the legislature, by that act, to do anything more than to allow an administrator to apply for the sale of an estate which the intestate claimed, but of which he did not die seized.”

In Stow v. Kimball, 28 Ill. 93, the interest sold was one derived under a contract of sale the conditions of which on the part of the intestate remained unperformed at the time of. his decease.

Rankin proved his claim under the judgment held by him as such assignee against the estate of Leiter in the probate court, and it was allowed as of the seventh class.

Á decree of sale was entered in the probate court, sale thereunder made to Henry A. Eastman and approved by that court, and a deed made and delivered to Eastman as such purchaser.

The decree of sale made three restrictions only: first, wid-. ow’s dower; second, master’s certificate of sale, and third, possession of receiver. Aside from these all the estate and claim of the Leiter heirs, including the equity of redemption, was divested at the sale under the decree and vested in the purchaser, Henry A. Eastman.

Rankin was bound by the decree of the probate court and for satisfaction of his claim under the judgment against Leiter he must now look to the assets of the Leiter estate in due course of administration in the probate court. Had he desired to preserve any lien which he claimed to the rents or other proceeds arising out of the mortgaged premises during the running of the period of redemption he should have set up his claim in the proceeding in the probate court, and have procured the sale there to be, made subject thereto; failing so to do, he is now estopped from asserting any claim paramount to that acquired by Eastman under his deed as a purchaser at the sale under the decree of the probate court. The very thing sold under the probate court decree was the right of redemption vested in the heirs of Leiter and subject to be divested by decree of sale to pay the debts of their ancestor. By this sale, made under decree of the probate court, all the estate and claim of the heirs of Leiter to the mortgaged premises was effectually cut off and divested. Rankin is bound by that decree.

In Bowers v. Block, 129 Ill. 424, the court said, page 428: “It was said in Harding v. LeMoyne, 114 Ill. 65, that the object of making the parties named in the statute defendants, is for the purpose of enabling them to see that no injustice is done to those having claims against the estate and that the requirements of the statute are complied with. The authority given by the statute is to sell all real estate necessary for the payment of debts, to which the decedent had any 1 claim or title.. And it was said in the case last cited, ‘If the paramount owner should happen to be joined as a defendant to the' proceeding, it would doubtless be his duty to assert his rights to the property in his answer — not for the purpose, however, of forming an issue of that kind, to be tried in that proceeding, but for the purpose of giving notice of his right to prevent an estoppel. ’ ”

This decision was rendered prior to the amendatory act of 1887, xthich gives to the probate court jurisdiction to settle all conflicting titles, adjust all liens and sell all interests.

Newell v. Montgomery, 129 Ill. 58, construing sec. 101, eh. 3, title Administration, made it incumbent upon the probate court to settle the equities and rights of all parties, in such proceedings when adverse claims were made by the pleadings. In the light of sec. 101, supra, adverse title or interest set up by answer must be joined as an issue and tried in that proceeding.

Without deciding the propriety of the cross-bill of Rankin but for the sale under the decree of the probate court in the Leiter estate, or the relevancy of the case of Ennis v. Wolff, 194 Ill. 420, to the issues joined on the cross-bill of Rankin, I am of the opinion that as to Rankin’s rights in the product of the equity of redemption being the moneys in the hands of the receiver, that the whole question as affecting any paramount claim he may have had is res adjudicata- by reason of his failing to assert that claim, if any he had, in the probate court, in the proceeding to sell real estate to pay debts, in which he was a party, and in allowing that sale to be made freed from any prior claim or lien which he could have then asserted; to hold otherwise would be to adjudge that the probate court sale was abortive to pass any title, and a mere idle form.

The motion, therefore, to set aside the decree dismissing the cross-bill of Rankin for want of equity, is denied.