author: Mr." Justice Baker

text:
    The St. Louis Bridge and Tunnel Railroad Company v. The People ex rel. James D. Baker, Collector.

      Filed at Mt. Vernon April 5, 1889.

    1. Taxation—road and bridge tax—only one assessment in each year. The commissioners of highways are authorized bylaw to make but one levy of road and bridge taxes for each year. When a levy is once made their power is exhausted for that year.
    2. Same—assessment by the State board—how far conclusive. The decision of the State Board of Equalization in fixing the value of railroad property for the purpose of taxation is quasi judicial in its nature, and can only be questioned for fraud or want of jurisdiction.
    3. Same—fraudulent assessment—presumption—proof to establish fraud.. Eraud in respect to the assessment of property for taxation is not to be presumed, but must be established by the evidence, or follow as a conclusion of law from the facts proven. No mere discrepancy between the valuation of such property and the judgment of the court in that regard is sufficient to impeach such assessment for fraud.
    4. Cross-errors—when necessary. The rule is, that unless cross-errors are assigned, objections made by the appellee will not be considered.
    Appeal from the County Court of St. Clair county; the Hon. John B. Hay, Judge, presiding.
    Messrs. Gr. & Gr. A. Koerner, for the appellant:
    While the county court does not sit as a court of appeal in any tax case, and any defense against the rendition of judgment for taxes is allowed by law if an error has been committed on any assessment,—for instance, if the assessment was based on an assessment of a previous year, etc.,—the county court has full power to adjudicate the matter and refuse judgment.
    The assessment of the bridge company’s property for'several successive years, as compared with the assessment of similar property in the same city, affords evidence that such assessment is not the result of an honest judgment of values.

      This court will recollect the case of Buttenuth v. St. Louis Bridge Co. 123 Ill. 535, where the bridge, outside of all other property, real and personal, on which it has paid taxes, for the least valuable part of its structure, in Illinois, was made to pay one-third of the taxes of the whole township, while it was shown that outside of the railroad property the township property was worth $20,000,000, and when the assessment outside of the bridge structure was only $2,575,400. Such taxation is simply confiscation under the pretext of law.
    This court has repeatedly decided that the assessor,' if he adopts a basis of assessment, whether the real value or a less one, that basis must be uniform. Railroad Co. v. Stookey, 122 Ill. 358; Railway Co. v. Boone County, 44 id. 240.
    The tracks of other railroads in the same territory (many alongside our track) are assessed at about $5000 per mile. Appellant's tracks are assessed at $35,000 per mile. While the same track of appellant was assessed in 1886 at $180,042, it is assessed in 1887 at $300,284, the number of miles being the same in each year. The uncontested proof in this case was, that these tracks, including the price for the real estate, —in fact, including every element to make up this kind of property,—was worth $170,000. Now, the difference of $170,000 and $360,000 is not a few thousand dollars, as was the case in Railroad Co. v. Stookey.

    That such an assessment is fraudulent per se, is unquestionable. While under the view this court has taken it may not be necessary for the board of equalization to give notice when it intends to raise the former assessment, though we think it should be, yet where the board intends to more than double it, when the former assessment has already been excessively high, we take it that the giving no notice may be considered as an indicium of fraud, which we hope this court, this case being an extreme one, will not tolerate. The road and bridge tax was illegally levied. It was attempted to be levied under sections 13 and 14, chapter 121. The first section requires that the commissioners shall meet semi-annually on the same day and place of the meeting of the board of town auditors. Article 13, section 3, of the Township law, provides that the board of auditors shall meet at the town clerk’s office semi-annually, on the Tuesday next preceding the annual meeting of the county board. The annual meeting of the county board is fixed by the 49th section, chapter 34, entitled “Counties,” for the second Tuesday of September of each year. The meeting, then, of the highway commissioners, under section 13, for the levy of the road and bridge tax, should have been held on the first Tuesday of September, 1887, to-wit, the 6th of September. The reason why this should be so is clearly given by this court in Railroad Co. v. People, 116 Ill. 243, and Railway Co. v. Commissioners, 117 id. 279.
    However, whether there was a reason for it or not, the law is imperative that this meeting must be held on the Tuesday preceding the annual meeting of the board of supervisors. With quasi corporations, such as commissioners of highways, the rule obtains that their power to impose taxes will be strictly construed. Comrs. of Highways v. Newell, 80 Ill. 587.
    The time of their meeting for the purpose of levying the tax, is jurisdictional. No authority is given them anywhere in the statutes to levy a tax at any other time. No authority is given the commissioners to meet on that day and adjourn their meeting for action to. a later day. If they had such an authority, the proof shows that they did not exercise it. They did not meet at the office of the auditors, nor anywhere else. They passed no resolution to adjourn. According to the testimony of one of the commissioners, they agreed to meet when the sick commissioner would be well, not even fixing a certain day. If they had met, there would have been a quorum to transact business, and they knew, as they testified, that they could transact business. See, also, as to the proof of jurisdiction, Sanderson v. La Salle, 57 Ill. 441.

      The tax attempted to be levied under section 14 is absolutely void, for two reasons :
    First—Any tax imposed under that section must be imposed on the same day of the meeting designated in section 13. If at the meeting provided for in section 13 an emergency existed, whereby a greater levy than sixty cents was required, the additional levy should have been fixed at that'meeting; but this additional levy was on a day not only subsequent to the legal day, but was not connected with that day by any pretended adjournment, or otherwise.
    Second—No “contingency” existed, within the contemplation of the statute,-when they attempted to levy under section 13. They had all the contingencies in view which could enter into their deliberations. Letting the contract for a larger sum than they had attempted to levy, (which was in itself unlawful,) did not constitute an emergency, within the meaning of the statute.
    Mr. George Hunt, Attorney General, for the appellee:
    The -duty to value railway property for taxation is devolved upon -the State Board of Equalization, and in the absence of fraud on the part of the board, or something tending to show fraud, beyond the mere assertion that the value of the road is less than that placed upon it by the board, the court will not interfere with or set' aside such assessed valuation. The complaint here is that one road is assessed higher than another. There is no reason to presume anything improper, unlawful or fraudulent in this. In fact, the presumption would be that the roads are of unequal value.
    The fact that other property is assessed too low, will not affect the validity of the tax against property assessed at its proper value. People ex rel. v. Lots in Ashley, 122 Ill. 297; Railroad, Co. v. Stookey, 122 id. 358.
    There is no evidence tending to show fraud in the making of the assessment in this case.

      The courts are powerless to review an assessment, or change or set aside the valuation of property made by an assessor or by the boards authorized by law to review the same, when the assessment has been honestly made upon property subject to taxation, and upon proper basis. Spencer v. People, 68 Ill. 510; Lyle v. Jacques, 101 id. 644; English v. People, 96 id. 566; Adsit v. Lieb, 76 id. 198; Porter v. Railroad Co. id. 561; Life Ins. Co. v. Pollak, 75 id. 292; People v. Iron Co. 89 id. 116; Felsenthal v. Johnson, 104 id. 21; Humphreys v. Nelson, 115 id. 45; People ex rel. v. Lots in Ashley, 122 id. 297.
    If it is true, as contended by appellant, that the property is assessed too high, there is no proof that it results from anything else than error in judgment on the part of the State Board of Equalization; and where an assessor has acted honestly, but erred in judgment in assessing too high or too low, the court will not interfere, or disturb the assessment. City of Chicago v. Burtice, 24 Ill. 489; Elliott v. City of Chicago, 48 id. 294; Spencer v. People, 68 id. 510; People ex rel. v. Lots in Ashley, 122 id. 297.
    An assessment of railroad property for taxation by the State Board of Equalization, is conclusive, except where fraud has intervened. Spencer v. People, 68 Ill. 510; Railroad Co. v. Stookey, 122 id. 358; Coal Co. v. Finlen, 124 id. 666; Stock Exchange v. Gleason, 121 id. 502.
    It is needless to discuss the proofs as to the value of the property, for the reason that this is wholly a matter for the consideration of the State Board of Equalization. If the railroad company desired a lower valuation, they should make their proofs before that board, and not before the court. No appeal lies from that body to the courts. Ottawa Glass Co. v. McCaleb, 81 Ill. 556.
    As to the validity of the levy of the road and bridge tax, see Railway Co. v. People, 116 Ill. 243; Railroad Co. v. Commissioners, 117 id. 279; Cooley’s Const. Lim. 520, note 2.

      Under the statute of 1873, and section 191 of the Bevenue Code, a failure to levy and return local municipal taxes within the time specified by law will not defeat their collection. Buck v. People, 78 Ill. 566; Chiniquy v. People, id. 570; Railway Co. v. People, 119 id. 211; Moore v. Fessenbeck, 88 id. 422; Railroad Co. v. Surrell, id. 535; Thatcher v. People, 79 id. 597; Riverside Co. v. Howell, 113 id. 267; People v. Railroad, Co. 88 id. 537.
    As to whether or not a contingency existed requiring a greater levy than forty cents on the $100, this court has held that when a tax is levied it is presumed to be properly levied, and the burden of proof, if objected to, is on the objector to show the illegality. The record does not show definitely what the contingency was, nor is there any evidence tending to show there was no contingency. There being no proof that there was no contingency, the court can only presume that the board of town auditors acted legally, and that^ the contingency did exist. But by the statute, the highway commissioners and the board of review, with the assessor, are the officers authorized to determine whether or not a contingency exists requiring the additional tax, and no authority is conferred upon a court to sit in review of that decision.
    Mr. B. D. W. Holder, also for the appellee:
    On application for judgment for taxes, the county court has no jurisdiction to hear and determine an objection that the valuation of the property is fraudulently excessive, and no power to inquire into the assessment made by the State Board of Equalization, or to reduce the samé; and proffered evidence that the valuation is grossly excessive, is properly refused. Railway Co. v. Stookey, 119 Ill. 182; Railroad Co. v. Stookey, 122 id. 358.
    The objection that the State Board of Equalization increased the valuation fixed by the schedule of appellant, is entitled to no consideration. Spencer v. People, 68 Ill. 512; Railroad

      Co. v. Surrell, 88 id. 535; People v. Coal Co. 89 id. 116; Mix v. People, 116 id. 265; Life Ins. Co. v. Pollak, 75 id. 292; Humphreys v. Nelson, 115 id. 45; Railway Co. v. Stookey, 119 id. 182; Railroad Co. v. Stookey, 122 id. 358.
    As to the road and bridge tax, appellant’s counsel hold that it was illegally levied, and cite the cases of Railroad Co. v. People, 116 Ill. 243, Railway Co. v. Commissioners, 117 id. 279, and Comrs. of Highways v. Newell, 80 id. 587. See Road Law, secs. 13, 14; Rev. Stat. 1887, chap. 121, secs. 13-16; Rev. Stat. chap. 120, sec. 191.
    Mr; F. G-. Cockrell, for the. city of East St. Louis:
    The county court has no power to review the assessment, or to change or annul the same, except, perhaps, in cases of willful fraud. Railway Co. v. People, 119 Ill. 182; People ex rel. v. Lots in Ashley, 122 id. 297.
    The objection to the road tax is technical, and does not go to the substantial justice of the tax. Beers v. People, 83 Ill. 488; Buck v. People, 78 id. 560; Moore v. Fessenbeck, 88 id. 422.
   Mr." Justice Baker

delivered the opinion of the Court:

At the May term, 1888, of the county court of St. Clair county, James D. Baker, collector, made application for judgment on the delinquent tax list for the year 1887. The St. Louis Bridge and Tunnel Railroad Company, appellant herein, filed a number of objections to the rendition of judgment against its property returned as delinquent. Some of the objections were sustained and some overruled. The present appeal brings before us three, only, of the objections that were interposed, and these were as follows:

“First, that the valuation of the tracks and the assessment made by the State Board of Equalization in the year 1887 was fraudulent on its face; second, that it was illegal, as said valuation was made on a basis'different from the basis adopted. by said board for tracks of railroads adjoining and being situated in the city of East St. Louis, and that the tracks must have been assessed at a rate five times as high as was adopted by said board for tracks belonging to other railroads; fourth, that the special road and bridge tax against the St. Louis Bridge and Tunnel Bailroad Company for the township of East St. Louis was illegally levied by the highway commissioners of said township.”

The last quoted of these objections, that the special road and bridge tax was illegally levied, may'be disposed of very .briefly. The question involved is identically that decided by this court in the late case of St. Louis National Stock Yards v. The People ex rel. Baker, 127 Ill. 22. In this case, as in that, the highway commissioners, on the 13th day of September, 1887, made a levy of forty cents on each $100 of assessed valuation, under section 13 of the Bo ad and Bridge law, and on October 20 of the same year made an additional levy of twenty cents, under section 14 of the same statute. It was held in that case, that the levy of forty cents on the $100, made on September 13, was valid, but that the levy of twenty cents on the $100, made on October 20, was unauthorized, and invalid. It was there said, that there is no statute which authorizes two levies in one year, and that when the levy of September 13 was made, the commissioners had exhausted their pow7er. That case must govern this in respect to the road and bridge tax, and is conclusive the objection was properly overruled by the county court in respect to the levy of forty cents, but should have been allowed in respect to the subsequent levy of twenty cents.

The first and second objections filed by appellant question the assessment made in 1887 by the State Board of Equalization, of the railroad property of appellant. The decision of the State Board of Equalization, in fixing the valuation of railroad property for the purpose of taxation, is quasi judicial in its nature, and can only be assailed for fraud or want of jurisdiction. (East St. Louis Connecting Railway Co. v. The People ex rel. 119 Ill. 182.) Here, no want of jurisdiction is suggested, and the validity of these objections depends upon the claim of fraud. Fraud is not to be presumed, but must-be established by the evidence, or follow, as a conclusion of law from the facts proven. The facts that appellant’s property was, in 1886, assessed at $234,192, and that the same property was assessed in 1887 at $418,484, do not establish fraud. The natural inference and conclusion would be, either that the assessment of 1886 was for less than its fair cash value, or that the property had increased in value, or both. The evidence shows that about the year 1880, the property cost between $250,000 and $300,000, and it is not unreasonable to suppose that in 1887 it was actually worth $418,484, and it is not attempted to be shown that it was not, at the date last mentioned, or is not now, of that actual value. Besides this, since, by the statute, the valuation of railroad property for taxation is committed to the State Board of Equalization, no mere discrepancy in judgment, as to the value of such property, between the members of the board and the court to which application for judgment for delinquent taxes is made, however gross it may be, is sufficient to impeach the valuation fixed by the board. East St. Louis Connecting Railway Co. v. The People ex rel. supra; Illinois and St. Louis Railroad and Coal Co. et al. v. Stookey, 122 Ill. 358; Ottawa Glass Co. v. McCaleb, 81 id. 556.

It seems that appellant has a little over twelve miles of railroad track, and that it was assessed at about $34,000 per mile. It also appears that other railroad tracks located in East St. Louis are assessed at from $3500 to $8500 per mile. From these facts it is urged the assessment upon the property of appellant was excessive and fraudulent. The evidence does not show either the actual or the relative values of the different lines of railroad entering East St. Louis, but the court will take judicial notice of the fact that most of these roads are long lines, extending to considerable distances through the State; that the number of trains and bulk of traffic passing over them daily is comparatively limited, and that the assessed valuation per mile placed upon them, respectively, is the average value of the whole of the lines of such several roads. But it appears from the testimony, that appellant’s railroad and rolling stock are all situated within the limits of East St. Louis, and include the Belay depot and the network of tracks connected with or surrounding the same; that it is a terminal road, and is used for transferring to and from the city of St. Louis, in Missouri, the trains and ears of all the railroads entering East St. Louis, and for transferring cars from all the- roads entering the city of St. Louis, to East St. Louis. In view of the location and uses of appellant’s road, and of the vast aggregation of business that is done upon its twelve miles of railroad track, it would seem, the fact that the State Board of Equalization did not make an assessment of the same rate per mile for its tracks that is made against other and ordinary railroads entering or passing through East St. Louis, and even the fact that the board assessed these twelve miles of track at a rate per mile five times as high as that assessed upon tracks belonging to other railroad companies, affords no sufficient ground for the conclusion that the action of. the board was fraudulent, or that appellant has just cause of complaint. In our opinion, it was not error to overrule the first and second objections of appellant.

It is argued by appellee, in his briefs, that the county court improperly sustained certain objections filed to a special tax levied by the city of East St. Louis, and held said tax was illegally levied, and refused to render judgment therefor. No cross-errors have been assigned in this court. The rule is, that unless cross-errors are assigned, objections made by the appellee will not be considered. Johnston v. Maples, 49 Ill. 101; Pollard v. King, 63 id. 36; The People v. Brislin, 80 id. 423; Dickson v. Chicago, Burlington and Quincy Railroad Co. 81 id. 215.

For the error in rendering judgment for the additional road and bridge tax of twenty cents on the $100 valuation, levied October 20,1887, the judgment of the county court is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Ceaig

license: Public Domain

text:
    The Chicago and Alton Railroad Company v. Catherine Kelly, Admx.

      Filed at Springfield April 5, 1889.

    1. Negligence—what will constitute. A construction train on a railroad, in approaching a station, made a flying switch, whereby a collision occurred between the tender of the engine and the caboose car, after which the engine moved forward and struck one of the cars standing on a side-track, throwing it forward against a car upon which iron was being loaded by men under a section-boss, without any notice to them. One of the men, in attempting to reach the platform, was struck and killed by the train coming down the track at the rate of eight miles an horn-: Held, that the jury might well infer negligence on the part of the railway company from these facts, and that it could not be said there was no evidence tending to show negligence.
    2. Same—fellow-servants—whether the relation exists. A section-hand, whose duty it was to repair tracks, etc., under the direction of his section-boss was required to go upon a construction train and assist in unloading rock for ballasting the road. After this was done, the section-hand returned to his station and resumed his labors as such in loading iron on a car on the side-track, and while so engaged was killed by the construction train: Held, that when the accident occurred the section-hand was not a fellow-servant with those in charge of the construction train, and owed no duty to them.
    3. Appeal'—reviewing facts—negligence as a question of fact. Whether the death of a person was caused by his own negligence or that of the defendant, is a question of fact, not reviewable by this court in an action by the personal representative of the deceased.
    4. Same—fellow-servants—question of fact—not reviewahle. Whether a servant of a railroad company killed by a construction train is a fellow-servant of those in charge of the train at the time of the accident, is a question of fact, and not one of law for the court, and the finding of the Appellate Court as to such fact is conclusive.
    5. So in an action against a railway company to recover damages for the killing of the plaintiff’s intestate while engaged as a laborer in loading iron upon a car on a side-track, by a construction train, the defendant asked the court to instruct the jury, that under the facts detailed in evidence, showing the relations of the train crew and the deceased, gnd their association with him at the time of the injury, the deceased and such crew were fellow-servants, and, being such, the jury should find for the defendant, which was refused: Held, properly refused, as, if given, the instruction would have invaded the province of the jury, it being a question of fact whether the crew of the train and the deceased were fellow-servants.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Isaac N. Phillips, and Messrs. Williams & Capen, for the appellant :
    . Patrick Kelly’s death was caused by his own want of ordinary care for his personal safety, and not by the negligence of appellant.
    No recovery can legally be had in this case, for the reason that Patrick Kelly was the fellow-servant of the men who operated the train by which he was struck. Abend v. Railroad Co. 111 Ill. 202; Railroad Co. v. Geary, 110 id. 383; Valtez v. Railway Co. 85 id. 500; Railroad Co. v. Murphy, 53 id. 336; Railway Co. v. Durkin, 76 id. 395; Railway Co. v. Britz, 72 id. 256; Railroad Co. v. Keefe, 47 id. 108; Railroad Co. v. Cox, 21 id. 20; Railroad Co. v. Moronda, 93 id. 302; Railroad Co. v. Hoyt, 16 Bradw. 237; Railroad Co. v. O’Bryan, 15 id. 134.
    The court erred in not properly instructing the jury as to the law of fellow-servants.
    It is a question of law whéther there is evidence tending to prove a cause of action. Railroad Co. v. Estes, 96 Ill. 470.

      Messrs. Stevenson & Ewing, for the appellee:
    Kelly and the train crew in charge of the freight train were not fellow-servants. Ryan v. Railroad Co. 60 Ill. 171; Railway Co. v. Ross, 112 U. S. 377; Railway Co. v. Moranda, 93 Ill. 302; Railroad Co. v. Powers, 74 id. 341; Railroad Co. v. May, 108 id. 288; Railroad Co. v. Bliss, 6 Bradw. 411; Rolling Mill Co. v. Johnson,, 114 Ill. 57; Railroad Co. v. O’Conner, 77 id. 391.
    Imprudent conduct .from sudden fright is chargeable to the original wrongdoer. Collins v. Davidson, 19 Fed. Rep. 83; Stokes v. Saltenstall, 13 Pet. 189; Jones v. Boyce, 1 Starkey, 493; Railroad Co. v. Dignan, 56 Ill. 487; Railroad Co. v. Garvy, 58 id. 83; Railroad Co. v. Yarwood, 17 id. 509; Marks v. Railway Co.

    It is negligence in a railroad company to make “running” or “flying” switches. Railroad Co. v. Triplett, 38 Ill. 482; Railroad Co. v. Dignan, 56 id. 487; Railroad Co. v. Baches, 55 id. 379.
    It is negligence in a railroad company to run ears in on a side-track, where other cars are standing and persons working about them, without giving notice of an intention to do so. Rolling Mill Co. v. Johnson, 114 Ill. 57.
   Mr. Chief Justice Ceaig

delivered the opinion of the Court:

This was an action brought by Catherine Kelly, administratrix of the estate of Patrick Kelly, deceased, against the Chicago and Alton Eailroad Company, to recover damages for the death of Patrick Kelly, which was caused, as is alleged, by the negligence of the defendant. On a trial before a jury, in the circuit court, a judgment was rendered in favor of the plaintiff, which, on appeal, was affirmed in the Appellate Court.

Various errors have been assigned on the record by counsel for the defendant, but many of them relate to questions of fact which, under our present statute, are not reviewable in this court. Such questions of law as arise on the record and are subject to review in this court, will be considered.

The facts which led to a verdict in the circuit court may be briefly stated, as follows: Kelly was working for the company as a section-hand, under James Mehan, a section-boss. Mehan testified that. Kelly’s duties were as follows: “I was his foreman. I had six men working under me. The men under me had to do all the necessary work,—anything that was ordered to be- done under my control. The men under me were doing track repairing. . It was our business to keep the track in repair. I had seven miles under my control. The men under me threw up embankments, raised up the track, put in rock and tiled under it, attended to the fences along the track, and the ballasting, and any other thing we had to do in the line of repair. It sometimes becomes my duty to shove cars from one place to another with my men. I take hold of them to shove; do not get on the engine to run them; simply shove the cars from one place to another on the track,—that is all I have to do with the cars.”

On the 5th day of January, 1886, a construction train left Bloomington with twenty-two cars loaded with rock, to be distributed along the track a few miles south-west of Hopedale, to be used in ballasting the track. The train had on board an engineer, fireman, conductor, and two brakemen. The section-hands under Mehan, including Kelly, boarded the train as it passed-through Hopedale, for the purpose of assisting in unloading the rock along the track. The men finished unloading the rock between three and four o’clock, when the train returned to Hopedale. There the section-men left the train to resume their duties as section-hands. What occurred from that time to the death of Kelly is stated by the Appellate Court in its opinion, as follows:

“The train-men began to prepare the train for returning to Bloomington, and the section-men were ordered by Mehan, their foreman, to take some old iron which had been gathered up along the road at some former time and placed on the depot platform, and carry it across the main track and place it on a flat-car standing on the side-track, just opposite the platform. This car was no part of the construction train. After some time spent by the train-men in switching and arranging their train for its return to Bloomington, they desired to transfer the engine from the south-western end of the train to the other, and they did so by a running or flying switch. The train was backed up on the main track towards Bloomington a sufficient distance for the purpose intended, and then started back, and after having acquired a speed of some eight miles an hour, the engine was cut loose from the train, and, increasing its speed, ran in upon the side-track, where three or four cars were standing, upon one of which the old iron-was being loaded by Kelly and others. The engine did not go far enough upon the side-track to let the train pass it without a collision, but the tender of the engine was struck by the caboose, breaking off the cross-beam and step of the caboose and injuring the tender. The engine was at once moved forward by the engineer, striking one of the cars standing on the side-track with such force as to break off the cow-catcher, break the headlight and the cast-iron heading of the boiler, knock the trucks from under the car in front, and throw it forward against the car upon which the iron was being loaded, and which, from the force of the blow, was moved forward about its length. It produced considerable noise and confusion. Kelly, with another man, was at this moment placing a large piece of iron upon the car, and they had to step,along with the moving car to keep it from falling to the ground. As soon as they could let go of it they did so, and turned to go across the main track to the platform. The train, with the caboose in front, was coming down the track at the rate of about eight miles per hour. Kelly’s companion succeeded in reaching the platform, but Kelly was struck and killed by the train.”

The same argument relied upon in the Appellate Court to reverse the judgment of the circuit court has been filed by .counsel for the railroad company here. The first point relied upon in that argument is, that Kelly’s death was caused by his own want of ordinary care for his personal safety, and not by the negligence of the defendant. This was one of the controverted questions of fact in the circuit court, which, under our statute, is not reviewable here.

But it is argued that there is no evidence whatever tending to establish negligence on the part of the defendant. This is a misconception of the facts established by the evidence. The making of a flying switch, (which is of itself dangerous,) the collision between the tender of the engine and the caboose,’ the moving of the engine forward by the engineer, striking one of the cars standing on the side-track, throwing it forward against the car upon which the iron was being loaded by Kelly, without any notice whatever to him, were facts from which the jury might infer negligence.

The next point relied upon in the argument is, “no recovery can be had, for the reason that Kelly was a fellow-servant of the men who operated the train by which he was struck and killed.” Whether the deceased and those in charge of the construction train were, when the accident occurred, fellow-servants, was a question of fact, to be determined from the evidence. (Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216; Chicago and Northwestern Railway Co. v. Moranda, 108 id. 576.) In the last case cited, in speaking in reference to those in charge of the train, and the person who was injured, it is said: “Whether they were so co-operating or consociating is a question of fact for the jury, and not of law for the court. The question, then, being one of fact, and having been passed upon by the Appellate Court, the decision of that court can not be reviewed here.”

The next point relied upon in the argument is, that the court erred in refusing defendant’s fourth instruction, as follows:

“You afe instructed, that under the facts of this case, as detailed in evidence, showing the relations of the train crew and Kelly, and their association with Kelly on the day and at the time of the injury, the said Kelly and said crew were fellow-servants, and being such, there is no liability in this case, and the jury should find defendant not guilty.”

The court had no right to invade the province of the jury, which it would have done had this instruction been given. It was a question for the jury, and not for the court, whether the facts, all considered, made those in charge of the train, and Kelly, fellow-servants.

It is, however, strenuously insisted that Kelly and the men who were operating the construction train were fellow-servants; that there was no evidence tending to prove the contrary, or tending to prove a state of facts from which the contrary could be inferred. We have not been able to agree with counsel in the view they have taken of the evidence.. Kelly, when killed, was working as a section-hand under a section-boss. He had no connection whatever with the construction train, or those who had the charge of that train. The construction train was under the control of a conductor, to whom Kelly owed no duty of any character. It is true, that during the day Kelly had, under the order of his section-boss, gone out on the construction train and assisted to unload the rock which had been shipped out for the purpose of ballasting the track; but after the train was unloaded, and Kelly returned to Hopedale, his connection with the train terminated. He then resumed his duties as a section-hand, and after commencing work under his section-boss, he owed no more duty to the construction train, and had no more to do with it than if he never had worked upon it. In Chicago and Northwestern Railroad Co. v. Moronda, 108 Ill. 580, where the plaintiff, who had charge of a section of the road, was injured by a heavy piece of coal falling from a passing train, it was contended there, as here, that the plaintiff was a fellow-servant with those in charge of the passing train, and in discussing the question of fellow-servants, it is said: “In the former opinion in this case we held, that in order to constitute servants of the same master fellow-servants, within the rule respondeat superior, it is not enough they are engaged in doing parts of some work or in the promotion of some enterprise carried on hy the master not requiring co-operation, nor bring the servants together or into such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety, but it' is essential that they shall be, at the time of the injury, directly co-operating with each other in the particular business in hand, or that their mutual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution. We feel constrained to adhere to this ruling.” See, also, North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57, where the same doctrine is announced.

What co-operation was there, at the time of the injury,-it may be asked, between Kelly, who' was working as a section-hand under the direction of a section-boss, and the conductor and engineer of the construction train? Hone whatever; and yet it is claimed they were fellow-servants. Other cases holding the same doctrine as the two cited, as to fellow-servants, might he referred to, hut it will serve no useful purpose to do so. Under the facts shown in evidence we think it plain that Kelly was not a fellow-servant with those in charge of the construction train.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Elizabeth Summers et al. v. William Smith et al.

      Filed at Springfield April 5, 1889.

    1. Wills—devise vrith limitation over—who will take in remainder— and as to what estate will pass. When a devise is to one and his heirs, or to the heirs of Ms body, it is competent to show that the word “heirs,” or “heirs of the body,” are used as synonymous with the word “children” or “descendants,” and for this purpose every part of the will is to be taken into consideration.
    2. In case of a devise of the homestead of the testator and a bequest of all his personal estate to his wife for life, and directing that on the death of the wife the homestead shall go to A, Ms youngest son, to have and to hold the same to himself and his heirs forever, in the absence of any other provision in the will showing a different intent, A, the son, will take the fee in remainder, which, upon Ms death before the termination of the life estate, will pass to his heirs.
    3. But when the will further provides that on the wife’s death the personal property shall be equally divided between the testator’s three sons, A, B and 0, except the household furniture, which the wife may divide among his daughters, and the testator devises another farm to Ms son A, and gives a sum of money with which to buy a farm for his son B, and the will then provides that in case any of Ms sons shall die without heirs of his body, the real estate given to him shall go to his surviving brothers or brother, and his personal property to all the other heirs, equally, and the youngest son, 0, dies before the termination of the life estate, the land devised to him will vest in fee in his surviving brothers, and will not go to his heirs generally.
    4. Where the death of the first taker is coupled with circumstances which may or may not take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect according to the ordinary and literal meaning of the words, upon death under the circumstances indicated, at any time, whether before or after the death of the testator.
    5. Where lands are devised to the sons of the testator in severalty, and the will provides that on the death of any of the sons without heirs of hisbody the real estate given to him shall go to his surviving brothers or brother, and on the death of the testator’s wife the personal property given to her for life is to be equally divided between his three sons, this will indicate that the three sons will be alive at the death of the wife, and the death of a son, in the event of which without heirs of his body the real estate is devised over to the surviving brothers or brother, and the personalty to all the other heirs equally, must have been subsequent to that distribution.
    6. In case of a devise for life to the testator’s widow, with remainder to a son and his heirs, with a provision that in case of the death of the son without heirs of his body, the estate given to him shall go to Ms brothers surviving him, the devise to the son will be of a fee, determinable upon his dying without heirs of Ms body, and the devise over to Ms brothers surviving can be sustained only as an executory devise, for the reason that a fee can not be limited upon a fee.
    7. Where the devise over is to the survivor or survivors of a class to which the first devisee belonged, as, to surviving brothers, it necessarily means a devise to a person in being at the death of the first devisee, and so must relieve the devise over of the objection of indefinite remoteness.
    8. Same—estate tail, at common law, only an estate for life under the statute. There are no estates tail in this State, but, on the contrary, when an instrument is executed which would at common law be held as creating an estate tail, our statute declares it shall vest only a life estate in the grantee or donee in tail, and the remainder in fee in the designated heir or heirs.
    9. Same—construction. In the absence of anything appearing to the contrary, language used in a will must be presumed to have been intended to have the legal effect which the law assigns to it. So, language used, which, at common law, would create an estate tail, must be held to give a life estate in the first taker and a fee in the heirs.
    Wbit of Bbbob to the Circuit Cpurt of Scott county; the Hon. Geobge W. Hekdman, Judge, presiding.
    Mr. Oscae A. DeLeuw, and Mr. James Callans, for the plaintiffs in error:
    The words of the will as to Westley Clark Smith dying without heirs, has reference to his death before that of the testator. The rule we invoke and the principles of construction we contend for are laid down in Martin v. Kirby, 11 Gratt. 67; Passmon’s Appeal, 23 Pa. St. 381; Buckley v. Read, 15 id. 83; Drayton v. Drayton, 1 Desaus. 324; Lawrence v. McArthur, 10 Ohio, 37; Moore v. Lyons, 25 Wend. 119; Childs v. Gillette, 2 M. & K. Ch. 281.

      When the devisee is not in immediate possession, there being a prior life estate, survivorship is held to refer to the period of the testator’s decease. 3 Jarman on Wills, 573; Vere v. Hill, 3 Burr. 1881; Roebuck v. Dean, 2 Ves. Jr. 265.
    The Illinois cases bearing on this question are Hempstead v. Dickson, 20 Ill. 193, and Duryea v. Duryea, 85 id. 41.
    Mr. James M. Biggs, and Mr. James A. Warren, for the defendants in error:
    'Westley Clark Smith, at the common law, would have taken an estate general. 1 Coke’s Litt. 21 a; 3 id. note 125 to lib. 1; Brice v. Smith, Willis, 1; 1 Kent’s Com. sec. 488.
    If he would have taken an estate tail by the common law, then, under the sixth section of our Conveyance act, he took a life estate upon the death of the testator, with the remainder in fee to the heirs of his body, if any should be living at the time of his decease. Blair v. Vanblarcum, 71 Ill. 290.
    The words “heir of his body,” are used in the sense of a “child” or “descendants.” Jones v. Miller, 13 Ind. 337.
    That an estate may be given to any number of persons in being, to take in succession for their respective lives, and that; a remainder may be limited thereon, see Waldo v. Cummings, 45 Ill. 427.
    The remainder was a contingent one, as Westley C. Smith had no heirs of his body when the will was made. Lehndorf v. Cope, 122 Ill. 330.
    That the death spoken of did not refer to the testator’s lifetime, see Olney v. Hull, 21 Pick. 311; Blatchford v. Newberry, 99 Ill. 42; Williamson v. Chamberlain, 2 Stock. 373.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question here is, what is the proper construction of certain clauses of the last will and testament of William Smith, the elder, late of Scott county, deceased. One of the clauses is as follows: “I give and bequeath to my dear wife, Martha Ann Smith, my homestead, comprising all that tract or parcel of land on which I now live, and described as follows: * ' * * It is my will that my said wife shall have and hold the above described lands * * * during her natural life,, to her use and benefit.” Then follows a gift of personalty, including stock on the farm, household goods, etc., to his wife, for her life, after which is the following clause: “It is further my request, that after the natural death of my said wife, Martha Ann Smith, that the homestead, comprising the above described lands bequeathed to her, my said wife, during her natural life, shall go to my youngest son, Westley Clark Smith, to have and to hold to my said son and his heirs forever. The above described personal property, at the decease of my wife, is to be equally divided among my three sons, except the household furniture, which she may divide among my daughters.” This is followed by a devise of a farm to his son William, the younger, a bequest of money to buy a farm for his son James M., and bequests to his four daughters, respectively, and then occurs the following clause: “It is further my will, in case any of my sons to whom I have bequeathed property in this my last will and testament, should die without heirs of his body, the real estate I have bequeathed to him shall go to his surviving brothers or brother, and the personalty to all the other heirs, equally.”

The testator died in February, 1850. Westley Clark Smith died in 1868, without heirs of his body. The court below decreed that the lands given to Westley Clark Smith vested in fee, upon his death, in his surviving brothers. Plaintiffs in error contend the decree should have been that they vested in fee in his heirs-at-law.

If the clause giving the homestead, after the death of the wife, to Westley Clark Smith and his heirs forever, were alone to be considered, it is clear that he would take a fee. But that clause can not be considered alone. The intention of the testator is to be ascertained from the whole will and all its parts taken together. (Hamlin v. United States Express Co. 107 Ill. 443.) We must therefore read the clause last quoted as if it were immediately subjoined to this clause, and so reading it, the first question is, whether the words, “in ease any of my sons to whom I have bequeathed property in this my last will and testament, should die without heirs of his body, ” etc., must be construed as meaning, should die within the lifetime of the testator, or simply, should die at any time, without heirs of body.

There may be found cases seeming to sanction the construction of the first alternative, but the English rule now accepted is, when the death of the first taker is coupled with circumstances which may or may not take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator. O’Maloney v. Burdett, L. R. 7 H. L. Cases, 408, (12 Eng. E. Moake’s notes, 22); Ingram v. Soutten, L. R. 7 H. L. 408, (12 Eng. R. Moake’s notes, 40); Olivant v. Wright, 24 W. E. 84; Britton v. Thornton, 112 U. S. 526; 3 Jarman on Wills, (Randolph & Taleott’s ed.) 640. See, also, note o, on same page; Crane v. Cowell et al. 2 Curtis, 178.

The other provisions of the will, instead of controlling this view, corroborate and sustain it, and tend rather to show that death in the lifetime of the testator was not within contemplation at all, for otherwise some different provision would have been made for the division of the personal property when distributed at the death of the wife. The clause of the will providing for distribution upon the death of the wife, clearly contemplates that the three sons will be alive at that time, for it says, “the personal property is to be equally divided among my three sons,” and so, necessarily, the death contemplated, in the event of which, without heirs of his body, the real estate is devised over to the surviving brothers or brother, and “the personalty to all the other heirs, equally,” must have been subsequent to that distribution.

The devise to Westley Clark is plainly of a fee, determinable upon his dying without heirs of his body. (4 Kent’s Com. 8th ed. p. 8, *9; Friedman v. Steiner et al. 107 Ill. 125; Hawley v. Northampton, 8 Mass. 3.) And since, at common law, a fee could not be limited upon a fee, the devise, in the event of the death of Westley Clark without heirs of his body, “to his surviving brothers or brother, ” if it can be sustained, must be as an executory devise, and the only question in that respect which occurs to us as feasible, is, whether the limitation is void because the contingency upon which it is to take effect is too remote. Many cases may be found in which -it has been held that a devise in fee, with a remainder over if the devisee dies without issue or heirs of the body, is a fee cut down to an estate tail, and that the limitation over is void by way of executory devise, as being too remote and founded on an indefinite failure of issue. But it has been held by some courts, and, as we think, with sufficient reason, that where the devise over is to the survivor or survivors of a class to which the first devisee belonged, as, for instance, as here, to surviving brothers, it necessarily must mean a devise to a person in being at the death of the first devisee, and so relieve the devise over of the objection of indefinite remoteness. Fosdick v. Cornell, 3 Johns. 440; Executors of Moffat v. Strong, 10 id. 11, *12; Anderson v. Jackson, 16 id. 382; Christie v. Phyfe, 19 N. Y. 345; Jackson v. Chew, 12 Wheat. 163; Lewis v. Claiborne, 5 Yerg. 369; Turner v. Ivie, 5 Heisk. 232; Lippett v. Hopkins, 1 Gall. 460. There is, moreover, in our opinion, a reason sustaining this view, in this State, which does not exist where, as at common law, estates tail are recognized. We have no estates tail, but, on the contrary, where an instrument is executed which would, at common law, be held as vesting an estate tail, our statute declares it shall only vest a life estate in the grantee or donee in tail, and the remainder in fee in the designated heir or heirs. Rev. Stat. 1874, chap. 30, sec. 6.

It would, then, seem that it violates the plainest principles of construction, to hold that language in a will which can only-vest a life estate in the first taker, and a remainder in fee in the next, was intended to vest an estate tail, merely because if that language had been employed where estates tail are recognized it would have vested such an estate. It does not have that effect here, and in the absence of anything appearing to the contrary, language must be presumed to have been intended to have the legal effect which the law assigns to it. So, therefore, here, “dying without heirs of body” could only mean dying without leaving such heirs of body as the estate would have vested in, in fee, instantly, upon the death of the first devisee,—as children, etc. (Lewis v. Claiborne, and Turner v. Ivie, swpra.) If it was intended that a person in being was to take immediately upon the death of the first devisee, as the use of the words “surviving brothers or brother” indicates, or if it was intended that the words “heirs of body” meant such heirs of body as would have taken the estate in fee immediately upon the death of the first devisee, the ruling below is right. In either view, it is practically the same as if the will had said, without leaving children or descendants of children surviving him. It is always competent to show that the words “heirs” or “heirs of body” are used in a will as synonymous with “children,” and for this purpose every part of the will is to be taken into consideration. (Jones v. Miller, 13 Ind. 337; Hileman v. Bonslaugh, 13 Pa. St. 344; Hill v. Hill, 74 id. 173.) And even at common law a devise over to survivors, in the event of the devisee dying without children, is not void. Hughes v. Sayer, 1 P. Wms. 533; Morgan v. Morgan, 5 Day, 517; Den v. Schenk, 3 Halst. 29.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Bailey

text:
    The Anheuser-Busch Brewing Association v. Rudolph Hutmacher.

      Filed at Springfield April 5, 1889.

    1. Continuance—absence of witnesses — diligence required. On a second application for a continuance by a defendant corporation, on the ground of the absence of material witnesses, officers of the corporation, the affidavit showed that at a prior day of the same term the defendant had all of the witnesses in court ready to testify, they being non-residents of the State. When so present, no attempt was made to subpoena them or efforts made to take their depositions. The case had been continued once before by the defendant, on account of the absence of the same witnesses: Held, that the application was properly denied, for the want of diligence to subpoena the witnesses or take then-depositions.
    2. Evidence—telegrams—what regarded as originals. Where the person to whom a telegram is sent takes the risk of its transmission, or is the employer of the telegraph company, the message delivered to the operator is the original, and must be produced as the best evidence; but when the person sending the message takes the initiative, so that the telegraph company is to be regarded as his agent, the original is the message actually delivered at the end of the line, and it is primary evidence of the contents of the message sent.
    3. Same—cross-examination—whether matter is pertinent thereto. In an action by the plaintiff to recover of the defendant for work, labor and services of the former in superintending the erection of an ice house, and cutting, storing and purchasing ice for the defendant, the plaintiff, while on the stand in. his own behalf, was asked by the defendant as to the defendant’s solvency and his own insolvency during the period which intervened between the accruing of the indebtedness and the commencement of the suit. On the plaintiff’s direct examination no question was put to him involving those subjects: Held, that the defendant was not entitled to put the questions relating to its solvency or the insolvency of the plaintiff, as they were not proper subjects of cross-examination.
    4. In an action to recover, among other things, for the contract price of purchasing, cutting and storing ice, the plaintiff testified only as to the contract price, and not as to the gross cost. On cross-examination the defendant asked him the gross cost of putting up the ice, to which the court sustained an objection: Held, that the court properly refused the question, for two reasons: Eirst, because not a proper cross-examination; and second, because if there was an express contract as to the compensation, the gross cost was immaterial.
    5. Exception—whether necessary—as to excluded evidence. If a party wishes to assign for error the sustaining of objections to questions put to the other party calling for the contents of a letter which is lost, he should preserve in the record an exception to the ruling of the court, otherwise the propriety of the ruling is not open to review.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Mr. George W. Fogg, for the appellant:
    The court erred in refusing to continue' the cause on account of the absence of Gustav Housmann, Henry Jacob and George King. Rev. Stat. 1874, p. 780; Shirwin v. People, 69 Ill. 55; Switzer v. Lottenville, 4 Bradw. 219; Sprague v. Heaps, 7 id. 447.
    If a telegraph dispatch is sought to be introduced in evidence, the. original must be produced and its execution proved precisely as any other instrument, or its loss or destruction shown, and then a copy must be proved.to be a true and compared copy. Matteson v. Noyes, 25 Ill. 591; Oregon Steamship Co. v. Otis, 14 Abb. (N. C.) 388; Williams v. Brickell, 37 Miss. 682; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Durkee v. Railroad Co. 29 Vt. 140; Wharton on Evidence, sec. 1128.
    The court erred in refusing evidence offered to show the gross cost of putting up the ice, and the solvency of appellant since the services, coupled with the long delay in presenting the claim, and appellee’s insolvency. 1 Greenleaf on Evidence, sees. 108, 38, 40, 196, 198; Reynolds on Evidence, sec. 7; 1 Starkie on Evidence, 87; Stephen’s Digest of Evidence, arts. 7, 9, 13; Lawson on Presumptive Evidence, 338.
    Messrs. Carter & Govert, for the appellee:
    A greater degree of diligence and a stronger showing will he required on the second application for a continuance than on the first. (Shook v. Thomas, 21 Ill. 87; Birks v. Houston, 63 id. 77.) So, too, where the absent witness is a party, or,— as in case of a corporation,—is a party interested in the suit, or in its employ. Quincy Whig Co. v. Tillson, 67 Ill. 351.
    A continuance will be refused where witnesses have not been subpoenaed, or subpoenaed in apt time, or where the affidavit does not show7 an effort to get depositions. Coffey v. Fosselman, 72 Ill. 69; Iron Works v. Glennon, 71 id. 11; Cook v. Norwood, 106 id. 558.
    The statement in the affidavit for continuance, that “this defendant fully expected and intended to try this cause at this term of this court, and to have all its said witnesses present to testify on the hearing thereof,” substantially states all the diligence shown by appellant in that behalf. But failure of witnesses to attend according to promise, who had not been subpoenaed, is no ground for continuance. Day v. Gelsten, 22 Ill. 102; Moore v. Goelitz, 27 id. 18.
    Again, the affidavit nowhere states that the facts expected to be proven by the absent witnesses were true. It was defective in this respect. Wilhelm v. People, 72 Ill. 468.
    The telegraph company is the agent of the sender, and the telegram as received at the end of the line is the original, and is primary evidence. Durkee v. Vermont, 29 Vt. 140; Morgan y. People, 59 Ill. 58; Telegraph Co. v. Harris, 19 Bradw. 347; Savelend v. Green, 40 Wis. 431; Redfield on Carriers, 400.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a suit in assumpsit, brought by Rudolph Hutmacher against the Anheuser-Busch Brewing Association a corporation organized and doing business at St. Louis, Missouri, to recover for w7ork, labor and services of the plaintiff in superintending the erection of an ice house and cutting, storing and purchasing ice for the defendant. The trial in the Circuit Court resulted in a judgment in favor of the plaintiff for $1640 and costs, which judgment was affirmed by the Appellate Court on appeal, and by a further appeal the record has been brought to this court.

To the declaration, which consisted of only the common counts, the defendant pleaded non assumpsit and the payment by the defendant to the plaintiff of certain sums of money which were received by the plaintiff in full satisfaction and discharge of the indebtedness sued for. Upon the issues thus formed the evidence was to a considerable degree conflicting. But as all questions of fact have been conclusively settled by the Appellate Court, we must accept the verdict and judgment as the only proper result of the evidence, it being open to this court to review the record only so far as it may be shown to contain errors of law.

Error is assigned upon the refusal of the court to grant the defendant’s motion for a continuance. Said motion was supported by an affidavit showing the absence of five witnesses, all residents of St. Louis, and all being officers or employes of the defendant, viz., Adolph Busch its president, Erwin Spraul the general superintendent of its out-door business, Gustav Housmann its assistant secretary, George Krug its general and commercial agent, and Henry Jacobs its master carpenter and builder. The materiality of the testimony of each of these witnesses seems to be sufficiently shown, and the only question is whether there is sufficient proof of diligence in endeavoring to procure their attendance. The affidavit shows that at a prior day of the same term the defendant had all of said witnesses in court ready to testify, but that at the time of making the affidavit for a continuance they were all absent from the State, Krug and Jacobs being temporarily in Nebraska, Housmann being in attendance upon the Circuit Court at Kansas City, Missouri, as a witness, and Busch and Spraul being both confined to their houses in St. Louis by sickness. The court held the affidavit sufficient so far as it related to witnesses Busch and Spraul but insufficient as to the others, and the plaintiff electing to admit the affidavit in evidence so far as it related to the testimony of Busch and Spraul, the motion for a continuance was overruled.

The rule is too familiar to require the citation of authorities, that to entitle a party to a continuance on account of the absence of material witnesses, it must be shown that due diligence has been used to obtain their testimony. That the affidavit in this case fails to show such diligence is too plain for argument. All of the absent witnesses were in court one day during the earlier part of the same term and were therefore within reach of process, but neither was served with subpoena, nor is it pretended that any attempt was made to subpoena them. All were officers or employes of the defendant and subject to its orders, and it will be presumed that their attendance before a commissioner might have been procured at any time, yet no efforts are shown to have been made to obtain their depositions, although the suit had been pending more than eight months, and had been once continued at the instance of the defendant on account of the absence of witnesses. Upon such a showing as to diligence the motion for a continuance was properly overruled.

Complaint is made of various rulings of the court in relation to the admission of evidence. While the plaintiff was on the stand as a witness in his own behalf, the defendant’s counsel, on cross-examination, put to him questions as to the defendant’s solvency and his own insolvency during the period which intervened between the accruing of the indebtedness sued for and the commencement of the suit. These questions were objected to on the ground that they were not proper cross-examination, and the objection was sustained. No questions had been put to the witness on his direct examination as to the solvency of the defendant or his own insolvency or in any way involving those subjects, and therefore, according to the well settled practice in this State, it was not open to the defendant to put to the plaintiff questions in relation to them on cross-examination. Stafford v. Fargo, 35 Ill. 481; Bonnet v. Glattfeldt, 120 id. 166; Lloyd v. Thompson, 5 Bradw. 90; Waller v. Carter, 8 id. 511. See also P. and T. Railroad Co. v. Stimpson, 14 Pet. 448; Floyd v. Bovard, 6 Watts & Serg. 75; 1 Greenleaf on Evidence, sec. 445. If the defendant deemed the inquiry material, it should have introduced evidence in relation thereto either by recalling the plaintiff or by the production of other testimony, after the plaintiff had closed his case.

Complaint is also made of the ruling of the court sustaining an objection to questions put to the plaintiff on cross-examination calling for the contents of a certain letter written by Spraul to the plaintiff and which appears to have been lost. These questions were excluded on the ground that they were not proper cross-examination, but it is sufficient to say that no exception to the ruling was preserved, and its propriety is therefore not open to review.

The court also sustained objections to questions put to the plaintiff on cross-examination as to the gross cost of putting up the ice for which he claims a commission by contract of ten cents per ton. The witness was not examined on that subject on his direct examination, and for that reason the questions objected to were improper. Moreover, the plaintiff was seeking to recover upon an express contract with the defendant as to the amount of his compensation, and under such contract the amount of the gross cost of cutting and putting up the ice would seem to be immaterial.

A number of telegrams in relation to the labor and services sued for, and purporting to have been sent by the defendant to the plaintiff, were produced by the plaintiff, and on proof that they were received by him from the telegraph company in the usual course of business, they were admitted in evidence, against the objection and exception of the defendant. Several letters of dates cotemporaneous with the telegrams written by the defendant to the plaintiff were also read in evidence in which the defendant admitted having communicated with the plaintiff by telegraph, and in some of which letters copies of the telegrams sent were given, the same being exact copies of telegrams of the same date read in evidence. The position now taken is, that the papers delivered by the telegraph company to the plaintiff are only copies, the originals being the telegrams signed by the defendant and delivered by it to the telegraph office from which the message was sent, and it is urged that such originals should have been produced or some proper foundation laid for the introduction of secondary evidence of their contents.

The application of the rule of evidence here contended for must depend upon whether the messages delivered by the telegraph company to the plaintiff or those delivered by the defendant to the telegraph operator are, as between the parties to this suit, to be deemed the originals. In Durkee v. Vermont Central Railroad Co. 29 Vt. 127, the rule 'which we consider the most reasonable one is laid down, viz., that the original, where the person to whom it is sent takes the risk of its transmission, or is the employer of the telegraph, is the message delivered to the operator, but where the person sending the message takes the initiative, so that the telegraph is to be regarded as his agent, the original is the message actually delivered at the end of the line. See also Saveland v. Green, 40 Wis. 431; Western Union Telegraph Co. v. Shotter, 71 Ga. 760; Wilson v. M. and N. W. Railroad Co. 31 Minn. 481; Dunning v. Roberts, 35 Barb. 463; Gray on Communications by Telegraph, secs. 104, 129. The same rule was adopted by this court in Morgan v. The People, 59 Ill. 58.

The fact that the defendant took the initiative in sending the telegrams, thus em^iloying the telegraph company as its agent, is clearly shown by its letters to the plaintiff read in evidence. Having thus employed such agent to convey communications to the plaintiff, it must be held to be bound by the acts of its agent to the extent at least of making the messages delivered originals, thereby constituting them primary evidence of the contents of the messages sent. It should be-observed that there is no suggestion that any of these messages were erroneously transmitted, and the case therefore-does not present the question, upon which there is some conflict in the authorities, whether the sender of a telegram makes, the telegraph company its general agent so as to become responsible for the acts of such agent where there is a departure from the authority actually given, by transmitting the message incorrectly.

Some criticisms are made upon the rulings of the court-in giving the plaintiff’s first instruction, and in refusing two instructions asked by the defendant. The plaintiff’s first instruction is a correct statement of the law applicable to the case, and the objection urged to it is not well taken. Both the defendant’s instructions refused are clearly erroneous.

We find no error in the record, and the judgment of the, Appellate Court will therefore be affirmed.

Judgment affirmed„


author: Mr. Justice Shops

text:
    The People ex rel. Almon D. Ellis et al. v. John J. Healy, Clerk.

      Filed at Ottawa

      April 3, 1889.

    1. Ebatjd aud deceit—in the parchase of goods apon credit. The representation of a person that he wished to purchase goods on credit can not be said to be false, when he does, in fact, make such a purchase. The representation that he will pay the price at the termination of the credit is simply a promise to pay, and Ms subsequent inability to discharge Ms obligation does not render him liable to an action for fraud and deceit.
    2. Representations and promises of payment by a purchaser on credit, even if he at the time does not intend to pay, is but an unexecuted intention, which, of itself, does not constitute an actionable fraud. A promise.to perform an act, though accompanied with an intention not to perform, is not such a representation as can be made the ground of an action at law, as for fraud. The party should sue upon the promise.
    3. It is not enough, to maintain an action by the vendor of goods for fraud and deceit, that the purchaser knew himself at the time to be insolvent, and had no reasonable expectation of paying for the goods. It is, however, true, that the purchase of goods by one who at the time ' intends never to pay for the same, is such a fraud as will entitle the vendor to rescind the sale and reclaim the property, although there were no fraudulent representations or false pretenses.

      4. Pleading—of the declaration—in an action for fraud and deceit. In an action to recover for fraud and deceit, the plaintiff must allege the facts relied on as constituting the fraud, and when false representations are relied on, it is essential that they relate to some material existing fact or facts, and not to the future intention of the defendant. The ground of liability in such cases rests upon the affirmation of some existing fact, which the party making knows, or has good reason to know, to be false.
    5. In this case it was alleged in the declaration, that on, etc., the plaintiffs were possessed of certain goods, of the value of $1000, and that “the defendant, falsely and fraudulently, and for the purpose of inducing the plaintiffs to part with the possession of said goods, represented to the plaintiffs that he desired to purchase said goods of the plaintiffs on credit, and that he would pay for said goods their reasonable value, and thereupon the plaintiffs, relying upon the said representations and promises of the defendant in that behalf, and believing the same to be true, sold and delivered the said goods to the defendant on credit; and said plaintiffs aver that said promises and representations of defendant were utterly false at the time they were made, and were so known to the defendant, and were made by him with the fraudulent purpose of obtaining possession of said goods without paying for the same, and that at that time defendant was wholly insolvent, and was fully aware of that fact, and knew, when he bought said goods, that he could not pay for the sarde as he agreed, and that defendant has never paid for said goods, and obtained the same from plaintiffs with the fraudulent purpose of not paying for the same, and of cheating and defrauding the plaintiffs out of said goodsHeld, that the declaration failed to show a cause of action arising out of a tort, so as to justify the issue of a ca. sa. against the body of the defendant.
    6. Same—form of action, as determining the nature of the cause of action. As the form of action adopte^ will not necessarily determine the nature of the cause of action,—whether it is for a tort or breach of contract,—the allegations of the declaration will be looked to for the purpose of ascertaining whether the acts complained of constitute a tort, within the meaning of the statute allowing the imprisonment of the defendant by the writ of capias ad satisfaciendum.

    7. Impbisonment—judgment debtob—of a second imprisonment for same cause. Where a judgment debtor has been discharged from imprisonment on a ca. sa., in due form, upon the ground that the process was issued in a case not involving a tort, he can not again be imprisoned on an alias writ issued in the same cause, and the issue of another writ of ca. sa. will not be compelled by mandamus, for the reason such a writ would be.void if issued.

      This was a petition for a mandamus, filed in this court by the relators, to compel the respondent to issue an alias ca. sa. against Elias Levee. The material facts appear in the opinion.
    Méssrs. Flower, Bemy & Gregory, for the petitioners:
    The purchase of goods on a credit, with a preconceived design not to pay for them, is an actionable fraud. Lockwood v. Doane, 107 Ill. 235; Dow v. Sanburn, 3 Allen, 181; Johnson v. Monell, 2 Keyes, 655; Devoe v. Brandt, 53 N. Y. 462; Stewart v. Emerson, 52 N. H. 301; Starch Factory v. Lindrum, 57 Iowa, 573.
    When the proof shows that a man has bought goods upon a credit, with do reasonable expectation of 'paying for them, a jury may from it find that a fraudulent intent not to pay existed. Talcott v. Henderson, 31 Ohio St. 162; Davis v. Stewart, 8 Fed. Rep. 803; Powell v. Bradlee, 9 G. & J. 220.
    It is thought that an alias capias ad satisfaciendum may issue. There seems to be no provision of the statute authorizing an alias execution, either against the person or property of a defendant. However, it would appear to be well settled that a plaintiff is entitled to such a writ, or to a pluries, against the body or lands or chattels. It is so laid down as to property. Freeman on Executions, sec. 48, et seq.

    This practice is recognized by this court. Bryan v. Smith, 2 Scam. 47; Lampsett v. Whitney, id. 441; Scammon v. Swartwout, 35 Ill. 326.
    The same principle applies to executions against the body, or writs of capias ad satisfaciendum. 2 Tidd’s Pr. 1031;.Free-man on Executions, sec. 457.
    The exemption from a second arrest for the same cause is purely statutory. It was inserted in the English statute to prevent a re-arrest after a person had been discharged upon habeas corpus, and with no purpose of accomplishing what is now sought. Attorney General v. Kwok-a-Ling, 29 L. T. Rep. (N. S.) 114. See, also, Hurd on Habeas Corpus, 563.

      Mr. Rufus King, for the respondent:
    The action in which the judgment was rendered is not an action for tort, and the judgment is not a judgment for a tort ' committed by the defendant, within the meaning of section 5, chapter 77, of the Revised Statutes, and section 12, article 2, of the constitution of this State.
    The judgment was by default, and it becomes important to examine the declaration, in order to determine whether the action was an action ex contractu or ex delicto. The proof, of course, could not have been broader than the declaration, and if it does not contain such charges of fraud “as can be made the ground of an action at law,” then simply calling the action “trespass on the case,” does not make the action one of tort, nor the judgment a judgment for a tort committed by the defendant.
    It is not the form of the action, but the grievance charged and proved, that determines the character of the action. It is well settled, that whether an action is or is not for a tort, is determined by the substance,—not the form,—of the declaration, or the name the pleader may choose to apply. 1 Hilliard on Torts, 35; McDuffie v. Beddoe, 7 Hill, 578; Weal v. King, 12 East, 452; Heirn v. McCaughan, 32 Miss. 1; Railroad Co. v. Hurst, 36 id. 660.
    As distinguished from the false representations of a fact, the false representations as to matter of intention, not amounting to a matter of fact, though it may have influenced a transaction, is not a fraud in law. Kerr on Fraud and Mistake, 88; Bigelow on Estoppel, 481; Gallagher v. Brunell, 6 Cow. 346; Gage v. Lewis, 68 Ill. 604.
    The action being on a statute, and no affidavit as required by the statute, no ca. sa. was authorized. In re Salisbury, 16 Ill. 350; Rev. Stat. chap. 77, see. 5.
    The judgment debtor having been arrested under a ca. sa. issued upon the judgment, and duly discharged, on habeas corpus, by the circuit court, he can not be again arrested for the same cause,—that is, upon the same judgment,—and an alias capias ad satisfaciendum can not issue.
    No person who has been discharged, by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause. Rev. Stat. chap. 65, sec. 26.
    To avail of the exception of the statute, the pleader must bring himself within its terms. Williamson v. Hogan, 46 Ill. 504; Railroad Co. v. Lavery, 71 id. 522; Hyman v. Bayne, 83 id. 256; Gould’s PI. chap. 4, sec. 22; 1 Chitty’s PL 246.
    Where, in the order of discharge, there is no reason for the discharge assigned, nor any statement in it that the merits were investigated, it will be presumed that the court did examine the merits of the case. Walker v. Martin, 43 Ill. 509.
   Mr. Justice Shops

delivered the opinion of the Court:

A petition was filed in this court by Almon D. Ellis and another, for a mandamus, to compel the respondent, John J. Healy, clerk of the Superior Court of Cook county, to issue an alias capias ad satisfaciendum against the body of Elias Levee, upon a judgment in that court in favor of petitioners, against said Levee. It is shown that said judgment was recovered March 17, 1884, in an action of trespass on the case, for $374.70. May 16, 1884, the defendant, Levee, was arrested upon a ca. sa. issued on said judgment, and imprisoned until June 6, 1884, when he was discharged on a writ of habeas corpus. In August following, petitioners demanded of the clerk of said court that he issue an alias ca. sa'. against the body of Levee, which he refused to do, and hence this petition.

The statute provides, that “no execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad respondendum, as provided by law, or he shall refuse to surrender up his estate for the benefit of his creditors.” Rev. Stat. chap. 77. sec. 5.

The respondent answered the petition, and to which a general demurrer was interposed. It will not be necessary here to set out in detail the petition and answer, but we will proceed to determine the case made thereby. The petition proceeds upon the basis that the judgment was recovered for a tort committed by the defendant. The answer, in effect, denies that the cause of action was for a tort, and sets up the discharge of the defendant, on habeas corpus, from arrest and imprisonment for the same cause for which the writ is now asked to be issued.

The first question presented is, was the cause of action on which the judgment was obtained, a tort committed by the defendant. It was by default, and we must therefore look to the allegations of the declaration, which is made an exhibit, rather than to the form of action adopted by the pleader, to ascertain the nature of the cause of action. 1 Hilliard on Torts, 35; McDuffy v. Beddoe, 7 Hill, 578; Weal v. King, 12 Bast, 452; Railroad Co. v. Hurst, 36 Miss. 660.

If one, by means of a false warranty, induces another to purchase, the purchaser may have his remedy upon the contract of warranty, or he may bring suit for the tort. (Cooley on Torts, 90.) So a recovery may be had for money embezzled, in an action ex contractu. It is apparent, therefore, that the form of the action will not necessarily determine the nature of the cause of action.

The declaration alleges, that on the first day of September, 1883, plaintiffs were possessed of certain goods, of the value of $1000, and that “the defendant, falsely and fraudulently, and for the purpose of inducing the plaintiffs to part with the possession of said goods, represented to the plaintiffs that he desired to purchase said goods of the plaintiffs on credit, and that he would pay for said goods their reasonable value, and thereupon the said plaintiffs, relying upon the said representations and promises of said defendant in that behalf, and believing the same to be true, sold and delivered the said goods and chattels to said defendant on credit; and said plaintiffs aver that said promises and representations of said defendant were utterly false at the time they were made, arid were so known to the said defendant, and were made by said defendant with the fraudulent purpose of obtaining possession of said goods without paying for the same, and that at that time said defendant was wholly insolvent, and was fully aware of that fact, and knew, when he bought said goods, that' he could not pay for the same as he agreed, and that said defendant has never paid for said goods, and obtained said goods from said plaintiffs with the fraudulent purpose of not paying for the same, and of cheating and defrauding said plaintiffs out of said goods.”

In an action to recover' for fraud and deceit, the plaintiff must allege the facts relied on as constituting the fraud, and f'where false representations are relied upon, it is essential that they relate to some material existing fact or facts, and not to the future intention of the defendant, which he may or may not perform.', The only representation of an existing fact here alleged is, that the defendant desired to purchase the goods on credit, and as he did so purchase them, it can not be said that the representation in respect thereof was false. The declaration alleges that plaintiffs sold and delivered the goods to the defendant on credit, but it wholly fails to show that when the suit was brought, the time had expired when payment was to be made therefor. /-The representations of a purchaser of goods on credit, that he will pay the value of the articles purchased, is simply a promise to pay. Every purchaser on time, either expressly or impliedly, undertakes and promises to pay at the expiration of the credit, and a subsequent inability to discharge his obligation will not render the purchaser liable to an action for fraud or deceit. -

The ground of liability, in this class of cases, that renders the defendant amenable to an action in tort, rests upon the •affirmation of some existing fact which the party making it knows, or has good reason to know, to be false. In Gallagher v. Brunell, 6 Cow. 350, the court, in commenting on Paisley v. Freeman, 3 T. R. 513, say: “In that case the defendant encouraged the plaintiff to sell goods, and fraudulently affirmed "that the purchaser was a person safely to be trusted. The .-gravamen was the false affirmation of an existing fact—not a promise to do a future act at the time not intended to be performed, and which, notwithstanding the intent, might or might "not be performed.” And after quoting Bulleb, J., in the Paisley case, to the same effect, the court conclude: “It is evident what must be the species of fraud for which the law gives redress—falsehood as to an existing fact.” In respect of the •allegation of a promise to pay without any intention to perform, it is said in Kerr on Fraud and Mistake, 88: “As distinguished from the false representation of a fact, the false representation as to a matter of intention, though it may have influenced a transaction, is not a fraud in law.” In Gage v. Lewis, 68 Ill. 604, after quoting the above from Kerr with approval, this court said: “It can not be said that these representations and promises were false when made, for until the proper time arrived, and the plaintiff refused to comply with them, it could not positively be known that they would not be performed. Even if, at the time they were made, it was not intended to comply with them, it was but an unexecuted intention, which has never been held, of itself, to constitute fraud. If they legally amount to anything, they constitute a contract.” And in the same case it is said: “A promise to perform an act, though" accompanied at the time with an intention not to perform, is not such a representation as can be made the ground of an action at law. The party should sue upon the promise.”

In Massachusetts, under a statute making the debtor liable to imprisonment if “the debtor contracted the debt with an intention not to pay for the same,” it was held that the charge that the debtor, “at the time when the debt was contracted, did not intend to pay the same,” and that “he contracted said debt having no intention to pay the same, and having no expectation that it would be paid,” was not sufficient, even after verdict. Chamberlain v. Hoags, 1 Gray, 172.

The allegation of the declaration is, that the defendant’s promises and representations were made by him “with the fraudulent purpose of obtaining possession of said goods without paying for the same.” It is not alleged that the defendant never intended to pay for them, and the pleadings and exhibits before us negative such an intention. The sale was in September, and amounted substantially to $1000, which, at the time of proving plaintiff’s claim before the assignee of Levee, and also of the rendition of this judgment, was reduced to less than $375, and the assignment by Levee, in December following his contracting this indebtedness, showed assets to substantially seventy-five per cent of his entire liabilities. There is no allegation in the declaration that the defendant therein made any representation as to his solvency or financial ability, or that plaintiffs were not fully acquainted with the same. It is not enough, to maintain the action, that the defendant knew himself to be insolvent, and had no reasonable expectation of paying for the goods purchased.

In Blow v. Gage, 44 Ill. 208, the debtors made an assignment of then: property for the benefit of creditors shortly before the arrival of the goods purchased, and the assignee took them when they arrived. In a suit to avoid the sale, this court said: “It has never been considered fraudulent for business houses to purchase on credit simply for the reason that they knew that they were unable at the time to pay their debts.” See, to the same effect, Biggs v. Barry, 2 Curtis, 259; Hodgeden v. Hubbard, 18 Vt. 504; Lloyd v. Brewster, 4 Paige, 537; Henneguin v. Nailor, 24 N. Y. 139; Rodman v. Thalheimer, 75 Pa. St. 232; Merrill v. Blackmer, 42 Conn. 324; Talcott v. Henderson, 31 Ohio St. 162; Shipman v. Seymour, 40 Mich. 274; Kline v. Rector, 57 Miss. 538; Merrill v. Corbin, 13 Bradw. 81; Rowley v. Bigelow, 12 Pick. 307.

It is true that the purchase of goods by one who at the time never intends to pay for them, is such a fraud as will entitle the vendor to rescind the sale, although there were no fraudulent representations or false pretenses. (Benjamin on Sales, sec. 439; Farwell v. Hanchett, 120 Ill. 573; Ryan v. Brant, 42 id. 78; Bowen v. Schuler, 41 id. 193.) But the petitioners did not seek to avoid the sale and recover back the possession of the goods sold, as in the cases last cited; and in order to hold a purchaser of goods liable, in an action on the case, for fraud and deceit, he must have been guilty of making false representations or practicing some artifice or deception; and where the alleged false representations are made the basis of the action, they must, as we have seen, relate to some past or existing fact.

We are of opinion that the allegations of the declaration were insufficient to enable plaintiffs therein to maintain an action for a tort. Their action should have been in assumpsit, for the price and value of the goods. It appears, therefore, that the plaintiffs’ judgment is not for a tort committed by the defendant, within the meaning of the statute, and it follows that the petitioners have not now, and never had, upon that judgment, a right to an execution against the body of the defendant therein.

It appears from the answer of the respondent, which is admitted to be true by the demurrer, that a writ of ca. sa. was issued on said judgment May 16, 1884, in due form of law, upon which Levee was arrested and committed to the common jail of Cook county. Afterwards, and on June 6,1884, he was discharged upon habeas corpus, by the Hon. John G-. Rogers, then one of the judges of the circuit court of said county. The answer to the petition in this case attaches the petition and order in such habeas corpus proceeding thereto, and makes it a part of the answer, and avers the truthfulness of the matters therein alleged and set forth.

Section 26, chapter 65, of the Revised Statutes, provides, that “no person who has been discharged, by order of the court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause.” This section also provides, that the following, among others, shall not be deemed to be the same cause: “(2) If, in any civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process forth e same offenseand (3) “generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned, if the cause be legal, and the forms required by law observed.” The answer expressly alleges that “the cause upon or for which the said petitioner has applied to this respondent, and requested him to issue an alias capias ad satisfaciendum, as alleged in their petition, is the same cause” upon which the said Levee was imprisoned, and from which he was discharged upon habeas corpus, as before mentioned. The only ground stated in the petition for habeas corpus, made an exhibit to and part of the answer of respondent herein, for the discharge of Levee, was, that the capias “issued in a case and under circumstances where the law does not allow process for imprisonment to issue; that he is imprisoned for the nonpayment of a debt owing by him to Ellis & Putnam for merchandise purchased by him of them, and being for a balance on account of $374.70.” It therefore affirmatively appears that the relators are seeking by this proceeding to obtain an alias ca. sa. to again imprison said Levee for “the same cause” as that on which he was before imprisoned, and from which he was discharged. It is not shown or pretended that the discharge was on account of any defect or illegality in the judgment or process, or “on account of the non-observance of any of the forms required by law.” If the discharge had been procured for any such reason, it was incumbent upon the petitioner to make the same appear. It follows, therefore, that the writ should be denied upon the ground, also, that said Levee can not be imprisoned a second time upon said judgment, and that the issue of the writ authorizing the same would be illegal, and, if issued, void.

The prayer- of the petitioners will be denied.

Writ denied.


author: Mr. Justice Scholeieli)

text:
    The People of the State of Illinois et al. v. M. E. O’Hair et al.

      Filed at Springfield

      April 5, 1889.

    1. Feanchise—what constitutes. The privilege or right to be a corporation is a franchise.
    2. Same—quo warranto to question right—against whom. Where the assumed right or franchise is denied, and is sought to be questioned by an information in the nature of a quo warranto, the writ is properly issued against those who are attempting to exercise the right or franchise.
    3. Appeal—whether a franchise is involved. On an information in the nature of a quo warranto, against commissioners of highways assuming to act as drainage commissioners of a certain drainage district, on the ground that such district has not been legally organized, a franchise is involved, and an appeal from the judgment of the trial court lies directly to this court, and not to the Appellate Court.
    4. Costs—on appeal—where there is no jurisdiction. Where an appeal is taken to the Appellate Court in a case involving a franchise, and is there entertained, and an appeal is taken from that court to this court by the same party, the judgment of the Appellate Court will be reversed and the cause remanded, with direction to dismiss the appeal, and no costs will be taxed in either court against the appellee.-
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.

      Mr. S. M. Leitch, State’s Attorney, Messrs. Wiley & Neal, Mr. Charles G. Eckhart, and Mr. J. A. Connolly, for the appellants.
    Messrs. Craig & Craig, for the appellees.
   Mr. Justice Scholeieli)

delivered the opinion of the Court:

This was a proceeding by information in the nature of a quo warranto, in the circuit court of Coles county, to determine the existence of a certain claimed drainage district as a corporation. The precise question presented is shown by the following quotation from the information:

“And said State’s attorney therefore gives the court to understand and be informed, that said pretended drainage district, called Union District No. 2, was attempted to be formed when and while said paper in writing, purporting to be a petition, did not contain the signatures of a majority of the adult persons owning lands in said district, who were the owners of more than one-third of the land situate in said proposed district, and did not contain the signatures of the owners of the major part of the land, who constitute one-third or more of the owners of the land, as is required by the statute, and that said pretended Union District No. 2 was not legally organized and formed, and was and is not a drainage district, under and in accordance with the statute; and therefore said State’s attorney says, that Michael E. O’Hair, Joseph McNeil and Louis Grooms, since the 4th day of June, 1886, have held and executed, and now hold and execute, without any warrant or right, the office of drainage commissioners of said pretended Union Drainage District No. 2, of the towns of Seven Hickory and Humboldt, which said office they, and each of them!, during all the time aforesaid, have usurped, and still do usurp, to the damage of the said People,” etc.

The law under which the organization of the drainage district was attempted, makes the commissioners of highways in each town in the several counties adopting township organization, drainage commissioners in and for all drainage districts in their respective towns. (1 Starr & Curtis, p. 942, sec. 99.) The respondents are conceded to be commissioners of highways of the town, and the only question is, whether they, being such, are also a body politic and corporate, styled “drainage commissioners,” — and this turns solely upon whether the drainage district is lawfully organized.

The privilege or right to be a corporation is a franchise. Fietsam v. Hay et al. 122 Ill. 293; Coal and Mining Co. v. Edwards et al. 103 id. 472; 2 Blackstone’s Com. p. 37; Angelí & Ames on Corp. see. 4. The franchise is here denied, and the writ is properly issued to those who assume to exercise it. Chesshire et al. v. The People ex rel. 116 Ill. 493; The People v. Board of Education, 101 id. 308.

The judgment must determine whether the franchise exists, for the litigation has no other aim, and so, necessarily, the franchise is involved in the litigation.

The People ex rel. v. Holtz et al. 92 Ill. 426, is authority only for the position that the mere right to hold an office is not a franchise. But, as has been shown, the question here is not the right to hold an office, but, being highway commissioners, the right to be a corporate body as “drainage commissioners,” which, beyond all question, is a franchise.

Under section 88 of the amended Practice act, (2 Starr & Curtis, p. 1842,) the appeal should have been brought direct to this court, because a franchise is involved. The Appellate Court had no jurisdiction. The judgment of the Appellate Court is therefore reversed, and the cause remanded to that court, with direction to dismiss the appeal. No costs will be taxed in either court against appellees.

Appeal dismissed.