text:
    Mary Larned v. Francis Tiernan.

      Filed at Ottawa May 19, 1884.

    1. Statute—as embracing more than one subject—of the Criminal Code, in providing various remedies for the suppression of gambling. The latter part of section 132 of the Criminal Code, which is entitled “An act to revise the law in relation to criminal jurisprudence, ” and which authorizes the party losing money by playing at cards, or other games, to recover back the money or thing lost, and on default of bringing suit for such recovery within a time limited by the statute, giving a right of action to any person to sue for and recover treble the value of the money, goods, chattels or other things lost at gaming, by special action on the case against the winner, one-half to the use of the county and the other to the person suing, is not in contravention of the constitutional provision that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” etc.
    2. This constitutional provision has always received a liberal construction, and the courts hold, substantially, that there may be included in an act any means which are reasonably adapted to secure the object indicated by the title, without infringing such provision.
    3. For the purpose of suppressing and punishing crime, the legislature may constitutionally provide punishments other than by indictment, a public prosecution, and fine on conviction. It may, in addition, provide for a civil action in favor of the party injured, or give a penal action at the suit of any one who will prosecute for the same, in which the guilty party may be subjected to fine, penalty, forfeiture or damages. It matters not by what mode the recovery is had,—whether by a criminal or civil procedure,—nor what is the name given to the means adopted.
    4. The fact that a statute confessedly constitutional is incorporated into a section of the Criminal Code, giving a right of action against the winner of money or other property at cards or other game, and inflicting a forfeiture or penalty, which for many years before had constituted a separate and independent act, will not authorize the courts to hold the same unconstitutional because arranged under the head of the Criminal Code, where its effect and tendency is the suppression of the crime of gambling. Such change indicates rather that such civil remedy is regarded as in the nature of a punishment, by the law-making power.
    Writ of Error to the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. A. D. Carter, for the plaintiff in error:
    • It is only in a clear case that the court will pronounce an act unconstitutional. Every presumption is in favor of its validity. Bureau County v. Chicago, Burlington and Quincy R. R. Co. 44 Ill. 234; McVeagh v. City of Chicago, 49 id. 320.
    The constitutional provision must be construed liberally. It is for the legislature to determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it. Cooley’s Const. Lim. (5th ed.) 174, 176.
    If combining civil and criminal provisions in an act is a violation of the constitution, then quite a number of our statutes are unconstitutional. In the Revenue act, in the act relating to the department of agriculture, in the act to promote medicine and surgery, and numerous others in the civil code, we find criminal provisions, while in the Criminal Code, in sections 51, 185, 201, 212, 229, and others, we find civil provisions.
    In a case of doubt the argument ab inconvenienti is admissible, and has weight. People ex rel. v. Loewenthal et al. 93 Ill. 201.
    This provision was not intended to prevent including in the bill or act such means as is reasonably adapted to secure or promote the object indicated by the title. Kurtz v. People, 33 Mich. 282; Johnson v. Higgins, 3 Metc. 566; Phillips v. Bridge Co. 2 id. 221; People ex rel. v. Briggs et al. 50 N. Y. 553; O’Leary v. Cook County, 28 Ill. 538; State v. Squires, 26 Iowa, 345; Thomasson v. State, 15 Ind. 449; Indiana Central Ry. Co. v. Potts, 7 id. 681; Reams v. City, 23 id. 111; Blood v. Marcelliott, 53 Pa. St. 391; Fuller v. People, 92 Ill. 185; People ex rel. v. Brislin, 80 id. 433; Gunter v. Dale County, 44 Ala. 639.
    The penalty denounced is in the nature of a punishment, and has for its object the suppression of gambling. Webster v. People, 14 Ill. 365.

      Messrs. Moses & Newman, for the defendant in error:
    It is sufficient to express generally in the title of an act the subject of legislation embraced in the act, without detail or specification as to the extent, manner or peculiarity of treatment of the general subject thus expressed; but the courts have uniformly held that no matters can be embraced in the body of the act not strictly germane to the general subject expressed in the title. Fuller v. People, 92 Ill. 182; People v. Hills, 35 N. Y. 449; People v. O'Brien, 38 id. 193; Durkee v. Janesville, 26 Wis. 69.
    If the section in question upon which this action is based is not and can not be regarded as a part of “the law in relation to criminal jurisprudence,” then it relates to a subject not expressed in the title of the act when found.
    The remedy given to the loser is to all intents and purposes civil in its nature, being in no degree penal. Bones v. Booth, 2 Wm. Black, 1226; Benjamin v. Beals, 18 Maine, 337.
    It arises upon an implied contract to return to the loser what the winner has no right to retain. McDugall v. Walling, 48 Barb. 364.
    It constitutes a substantive claim belonging to the loser’s estate. Meach v. Stoner, 19 N. Y. 26.
    If this portion of this section must fall, how can the remainder of it be retained ?
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action on the case, founded upon the last clause of section 132 of the Criminal Code, as revised by the General Assembly, approved March 27, 1874, brought by Mary Larned, suing for herself and the county of Cook, Illinois, to recover treble the sum of $2000, which it is alleged one Elliot P. Larned, by playing at cards, lost and paid to the defendant. The court below sustained a demurrer to the declaration, and plaintiff electing to stand by her declaration, judgment was rendered in favor of the defendant, and the plaintiff sued out this writ of error.

It is not denied that the declaration makes, in proper form, a good cause of action under the above section, if that be valid, and the only question presented here for decision is as to the constitutionality of this section, in the respect of its being, or not, in violation of the provision of the constitution that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. ” This section provides that any person who shall lose, by playing at cards or other game, $10 or more, may sue and recover the same back of the winner by action of debt, replevin, assumpsit or trover; and in its last clause, “in case the person who shall lose such money or other thing, as aforesaid, shall not within six months, really, and Iona fide, and without covin or collusion, sue, and with effect prosecute, for such money or other thing by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for and recover treble the value of the money, goods, chattels, or other things, with costs of suit, by special action on the case, against such winner aforesaid, one-half to the use of the county and the other to the person suing.” Section 126 imposes a fine of not less than $10, and not more than $100, for gambling. The act in question is entitled “An act to revise the law in relation to criminal jurisprudence. ”

It is said that this section gives a civil right and a civil remedy, which is another subject than that of crimes and their punishment, and so not expressed in a title relating to criminal jurisprudence; that there can not be in such an act a combination of criminal and civil provisions without making two subjects, and so rendering the act obnoxious to the constitutional inhibition in question. But wherefore not ? There is no authority cited in support of the proposition, and it rests upon assertion attempted to be supported upon the idea of there being a difference between criminal and civil proceedings, and between what is punishment and a private recovery for private benefit.

But there is a broader view than that, which is taken by the courts, of this constitutional provision. It being a not uncommon one, it has been the subject of frequent adjudication, and has ever received a liberal construction. The decisions concur in laying down, substantially, the rule that in consistency with that provision there may be included in an act any means which are reasonably adapted to secure the object indicated by the title. O’Leary v. County of Cook, 28 Ill. 534; Fuller v. People, 92 id. 185; Kurtz v. People, 33 Mich. 282; Johnson v. Higgins, 3 Metc. (Ky.) 566; People v. Briggs, 50 N. Y. 553; The State v. Squires, 26 Iowa, 345; Thomasson v. The State, 15 Ind. 449; Reams v. City, 23 id. 111; Gunter v. Dale County, 44 Ala. 639; Blake v. People, 109 Ill. 504.

The only legitimate inquiry here, then, under the adjudications upon this subject, is, as we conceive, what is the provision of this section of the statute in its effect? That if its tendency, in effect, be to the discouragement and suppression of gambling, then it is germane to the general object of the act,—not an independent subject,—and is sufficiently expressed in the title of the act.

Criminal jurisprudence, which is the subject set forth in the title to the Criminal Code, is defined as “that part of the law which relates to crimes and their punishment. ” Subjecting the gambler to the loss of that which he wins, is obviously, in its effect, adverse to the practice of gambling, in tending to make it unprofitable, and, perhaps, might be regarded to be as effective toward the accomplishment of the object of the act as is the fine, under section 126, of not less than $10 nor more than $100. It may be said to come within the strict definition of punishment, “to afflict with pain, loss or calamity, for a crime or fault.” (Webster’s Diet.) One mode of punishment is forfeiture, and what is there, in substance, here but that,—the forfeiture of what one has got by gambling? Now, in the bearing upon the question, here, of making a different subject, which must be expressed in the title of the act, we may see the unimportance of the distinction insisted on, of criminal and civil proceeding, and of the giving of a civil remedy to the person injured, in an act relating to crimes and their punishment. Upon this question, as we have seen, it is the effect of the means provided which tells. It is not the technical designation. The effect of the provision in this section we are considering is to mulct the winner in the loss of his gains, and thereby it aids in effecting the general object of the act,—the suppression of gambling. In this respect of operative effect it matters not where the recovery of that which has been won goes,—whether into the State treasury, county treasury, school fund, into the hands of a common informer, or to the person losing; nor by what mode the recovery is had,— whether by a criminal or civil procedure; nor what the name given to the adopted means,—whether fine, penalty, forfeiture, or damages. Nothing of this is material as determinative of whether there be a difference of subject which must be expressed in the title. In that regard the only thing essential is, what is the provision in its effect, as being in aid of the purpose of the act. The giving of this action for recovery from the winner being a means, in its tendency, promotive of the object of the act as expressed in the title, it is not an independent subject, and need not have been particularized in the title. In the respect of benefit to the loser, and having the effect of reimbursement to him, that is a thing which is incidental, and not the primary object of the provision.. As showing this, the section does not stop with giving to the loser an action for the recovery, but goes on and provides that if he will not sue within six months, then a common informer may bring suit, and recover treble the amount won, thus evincing an especial purpose to make the successful gambler suffer the loss of his winnings. Answer was made to this feature of the provision in O'Leary v. County of Cook, above cited, where the question involved here arose, under “An act to amend an act entitled an act to incorporate the Northwestern University, ” in which there was prohibition of the sale of liquors within a certain distance of the university building, and it was said every provision which was intended to promote the well-being of the institution or its students was within the subject matter of the law, and such was said to be that prohibitory provision, and that “although this provision might incidentally tend to protect others residing in the vicinity, etc., yet that was not the primary object of the law, but its sole purpose was to protect the students and faculty from such influence. ” And further, that “it is not a valid objection that the prohibition designed for the benefit of the institution is guaranteed by a public penalty, or, as in this case, one going to the county. It was competent to select any mode of enforcing the prohibition which might be thought the most efficacious.”

Allusion is made to the fact that originally this section 132 was not a part of the Criminal Code, but was enacted in a separate act, and was retained in such separate act in the revisions of 1833 and 1845, but that in the revision of 1874 this section was transferred into the Criminal Code, and this is remarked upon as showing that the legislature did not regard this section as constituting any part of the criminal jurisprudence of the State. For a court to assume to pronounce a law, which was confessedly constitutional, to have become unconstitutional from the fact of its having been, in a revision of the statutes, arranged under the head of the. Criminal Code, differently from what it was before, would .seem to be not to administer the law, bnt to thwart it. But, however, the circumstance mentioned appears to favor rather the argument in favor of the section’s validity. The revision of 1874 is the latest expression of the General Assembly, and the transferring in that revision this section into the Criminal Code would seem to manifest the legislative sense to be that this provision was designed to be, and was in fact, in the nature of punishment, and that it was rearranged as it was because its most appropriate place was deemed to be under the head relating to crimes and their punishment.

We are of opinion the court below erred in sustaining the demurrer and rendering judgment in favor of the defendant, and the judgment is reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The People ex rel. Isaac N. Sheppard v. The Illinois State Board of Dental Examiners.

      Filed at Ottawa May 19, 1884.

    1. Dental examinations—under act of 1881—who may determine as to a compliance with the requirements of the act. Whether a dental college is “reputable” or not, within the ordinary meaning of that word, is not a legal question, but a question of fact. So, also, are the requirements in the act approved May 30, 1881, entitled “An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the State of Illinois,” in regard to the annual delivery of full courses of lectures and instruction, questions of fact. These questions are by the act submitted to the decision of the State Board of Dental Examiners. Their action is to be predicated upon the requisite facts, and no other tribunal is authorized to investigate them. The act of ascertaining and determining what are the facts, is in its nature judicial, involving investigation, judgment and discretion.
    2. Mandamus—whether the proper remedy. The office of the writ of mandamus is in general to compel the performance of mere ministerial acts ¡prescribed by law. It lies, however, also to subordinate judicial tribunals, to compel them to act where it is their duty to act, but never to require them to decide in a particular manner. It is not, like a writ of error or appeal, a remedy for erroneous decisions.
    3. A subordinate body can be directed by the writ to act, but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officers, determines how far performance of the duty may be enforced by mandamus.

    4. So, upon the refusal of the Illinois State Board of Dental Examiners to giant a license to a person whose application was based upon a diploma issued by a dental college, mandamus will not lie to compel the board to grant the license, because, to entitle the applicant to a license, the diploma must have been issued by a “reputable” dental college, and whether the college is a “reputable" one, is, under the statute, within the judgment and discretion of the board to determine.
    This is an original proceeding in this court for a mandamus. The petition therefor is as follows:
    “The petitioner, Isaac N. Sheppard, a citizen of the State of Illinois, residing in the city of Paris, county of Edgar, in said State, complaining, shows unto the court that he is twenty-one years of age; that he became a student at the Indiana Dental College, an institution duly organized under the laws of the State of Indiana, located at the city of Indianapolis, in said State, on the 3d day of October, 1881, said institution being a college for the purpose of educating persons in the theory and practice of dentistry and dental surgery; that he attended said college as a student, as aforesaid, during his two full terms thereof, and pursued a course of study in the theory and practice of dentistry and dental surgery during all that time at said college, and that he completed said course of study, and was graduated from said college on the 7th day of March, A. D. 1883, and thereupon, to-wit, on the day last aforesaid, he received a diploma from the faculty of said Indiana Dental College, duly authenticated by the signatures of the faculty of said college and the officers thereof; that said Indiana Dental College is a reputable dental college, and during the time petitioner was a student therein, and at the time of issuing said diploma by the faculty of said dental college to petitioner, there was annually delivered at said college a full course of lectures and instruction in dental surgery. Petitioner further shows unto the court, that desiring to engage in the practice of dentistry in this State, he afterwards, to-wit, on or about the 18th day of March, 1883, presented his said diploma so received from the faculty of said Indiana Dental College, duly authenticated, to the Illinois State Board of Dental Examiners, and tendered to said board a fee of one dollar, as provided by law, and demanded that said board issue to him, the petitioner, a license to practice dentistry in the State of Illinois, as provided by law. Petitioner further shows to the court, that it was the duty of said board of dental examiners, upon the presentation of said diploma, and the tender of the fee of one dollar, as aforesaid, to said board by said petitioner, and the demand, as aforesaid, to issue to petitioner a license to practice dentistry in the State of Illinois, and that the said board of dental examiners, not regarding their said duty in this behalf, thereupon, to-wit, on the day last aforesaid, refused to issue to petitioner a license to practice dentistry in this State, and have continually refused, and still do refuse, to issue to petitioner such license. Petitioner further shows unto the court, that the members of the said board of dental examiners are G. V. Black, A. W. Harlan, O. Wilson, J. J. Jennelle and George H. Cushing, and that by the failure and refusal of said board of dental examiners to so issue and grant petitioner a license to practice dentistry, as aforesaid, he, the petitioner, has been prevented from practicing dentistry in this State, as he is lawfully and by right entitled to do; that he has qualified himself for the practice of said profession at great expenditure of time and money, and depends upon the same for a living. Petitioner further shows unto the court, that the determination of the questions involved in this petition is not only one of great importance to him individually, but is also a matter of public importance, as numbers of the graduates of said dental college, citizens of this State, and circumstanced like petitioner, desire to practice dentistry in this State, and are prevented therefrom by like refusal of said board of dental examiners. Wherefore, being without other legal remedy, petitioner prays for a writ of mandamus, directed to the Illinois State Board of Dental Examiners, commanding them to forthwith receive from petitioner the fee of one dollar, and thereupon to issue to petitioner a license to practice dentistry in the State of Illinois, and to deliver the same to petitioner, and that such further order may be made in the premises as justice may require. ”
    The Attorney General demurs to the petition.
    Messrs. Hunt & Dyas, and Mr. C. V. Jaquith, for the relator.
    Mr. James McCabtney, Attorney General, for the respondents.
   Mr. Justice Scholfield

delivered the opinion of the Court:

It is provided by the first section of an act approved May 30, 1881, entitled “An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the State of Illinois,” “that it shall be unlawful for any person who is not at the time of the passage of this act engaged in the practice of dentistry in this State, to commence such practice, unless such person shall have received a diploma from the faculty of some reputable dental college duly authorized by the laws of this State, or of some other of the United States, or by the laws of some foreign country, in which college or colleges there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery. ” And in the sixth section of the same act, after providing for examination before the board of dental examiners of all applicants for license to practice dentistry, is the following provision: “But said board shall, at all times, issue a license to any regular graduate of any reputable dental college, without examination, upon the payment by such graduate to the said board of a fee of one dollar. ” Other provisions of the act prohibit any person to' practice dentistry without a license from the board, except such as are properly enrolled as having been practitioners at the time of the passage of the act.

The contention of the relator is, that the board of dental examiners have no power to decide what is, or what is not, a “reputable dental college, ”—that the law has itself defined what is a “reputable dental college,” in providing that it shall be “duly authorized by the laws of this State, or some other, of the United States, or by the laws of some foreign country, in which college * * there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery. ” We are unable to appreciate the force of this position. The word “reputable” would seem to be used here to express the meaning ordinarily attached to it. If it had been intended that a diploma from any dental college, or a diploma from any dental college “duly authorized by the laws of this State, or some other of the United States, or by the laws of some foreign country, in which college * * * there was, at the time of the issue of such diploma, annually delivered a full course of lectures and instruction in dental surgery, ” we must presume the language would have so said. By using the word “reputable, ” we must presume the General Assembly meant “reputable.” And since it is not used as being the equivalent and convertible for the other requirements in regard to the college, but as in addition thereto, we must presume it was intended to be so construed.

As a part of the current history of the times, and as an aid in arriving at the legislative intention, we know there were colleges of different kinds authorized by the laws of States in which they were located, in which there were pretended to be annually delivered full courses of lectures and instruction upon the arts and sciences professed to be taught, that were not “reputable, ” because they graduated for money, frequently without any reference to scholarship. A diploma from such an institution afforded no evidence of scholarship or attainments in its holder. It was a fraud, and deserved no respect from anybody,—and it was as against such diplomas the law was intended to protect the public, and therefore required that the colleges be “reputable. ” Whether a college be reputable or not, is not a legal question, but a question of fact. So, also, are the requirements in regard to the annual delivery of full courses of lectures and instruction. These questions of fact are, by the act, submitted to the decision of the board,—not in so many words, but by the plainest and most necessary implication. Their action is to be predicated upon the existence of the requisite facts, and no other tribunal is authorized to investigate them, and of necessity, therefore, they must do so. The act of ascertaining and determining what are the facts, is in its nature judicial. It involves investigation, judgment and discretion.

The office of the writ of mandamus is, in general, to compel the performance of mere ministerial acts prescribed by law. It lies, however, also to subordinate judicial tribunals, to compel them to act where it is their duty to act, but never to require them to decide in a particular manner. It is not, like a writ of error or appeal, a remedy for erroneous decisions. (Judges of Oneida Common Pleas v. People, 18 Wend. 92.) And, as is said by the court in People ex rel. v. Common Council of Troy, 78 N. Y. 33: “This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officers, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of' fact, the duty is judicial, and though it can be compelled by mandamus to determiné the fact, it can not be directed to decide it in a particular way, however clearly it be made to appear what the decision ought to be.” See, also, Kelly et al. v. City of Chicago, 62 Ill. 279.

Illustrations of the principle will be found in People v. Common Council of Troy, supra, Freeman v. Selectmen, 34 Conn. 406, Hoole v. Kinkead, 17 Nev. 217, Bailey v. Ewart, 52 Iowa, 111, Berryman v. Perkins, 55 Cal. 483, People v. Contracting Board, 27 N. Y. 378, and other cases cited in argument by the Attorney General.

The demurrer here does not admit that the board of dental examiners found that the college at which the relator was graduated was reputable, although it does admit that to be the fact. But since the board can not be compelled to decide the question that way, although the evidence might clearly sustain it in doing so, there is no ground for mandamus.

The demurrer must be sustained, and the petition dismissed.

Demwrrer sustained.


author: Mr. Justice Walker

text:
    George P. Braun et al. v. The City of Chicago.

      Filed at Ottawa May 19, 1884.

    1. Taoewses—as to the kinds of occupations upon which license fees may he imposed—generally. The legislature, in authorizing the imposition of license fees, is not restricted to trades, occupations or classes of business which are immoral, vexatious or injurious to the well being of society., Nolis it necessary that before a business can be regulated or burdens imposed on its exercise, there should be power to suppress the business.
    2. Same—whether brokers may be required to procure a license, and to pay a license fee—constitutional power of the legislature in that regard. The legislature is fully authorized by the constitution to confer power, by general law, upon incorporated cities to demand and collect a license fee or tax of all persons who shall pursue the business or calling of brokers within their limits, and to prohibit within such limits the business of a money-changer, or banker, broker or commission merchant, including that of merchandise, produce or grain broker, real estate broker, and insurance broker, without license therefor; and such a provision in the charter of a city, and an ordinance in pursuance thereof, are not in conflict with any constitutional provision.
    3. License fee—though not a tax, considered under the rule of uniformity as applied to a tax. A license fee imposed by a city or village, in pursuance of power conferred by the legislature for that purpose, upon certain avocations, trades, business or occupations, carried on within the corporate limits, is not a tax, in the constitutional sense of that term.
    4. But even regarding such a license fee as a tax upon persons, when imposed upon persons engaged in a given business, as, that of a broker, whether a produce or grain broker, real estate broker or insurance broker, it is not in violation of any constitutional provision when such fees are uniform as to all persons of the same class within the limits of the city.
    5. Municipal taxation—constitutional limitation—its extent—rule of uniformity, and the mode of its enforcement. There is no limitation on the legislative power to invest cities and villages with authority to tax for corporate purposes, except that the taxes imposed shall be uniform as to persons and property within the corporate limits. An act giving power to levy or impose such taxes, which in terms neither requires uniformity nor dispenses with it, is not invalid. If the ordinance under such a power conforms to the constitutional requirement of uniformity, that will be sufficient.
    6. The power of the legislature in providing for the imposition and collection of taxes, including the subject of taxation, the extent of the taxes and the mode of collection may be regarded as plenary, except so far as limited by the constitution.
    7. Same—of the respective constitutional provisions concerning State and county revenue, and taxation for corporate purposes. Municipal taxes are regulated and controlled by sections 9 and 10, of article 9, of the constitution, the preceding sections of that article relating to State and county revenue, and not to taxation by cities, towns and villages.
    8. Section 9, of article 9, of the constitution, provides that the legislature may authorize the corporate authorities of cities, towns, etc., to levy taxes for corporate purposes; but the power of the legislature and the corporate body is limited to uniformity as to persons and property within the corporate limits. Section 10 is a limitation on the power of the legislature to impose taxes on municipal corporations, or the persons or property thereof, for corporate purposes.
    9. Bbokeb—what constitutes a broker. A broker is one who is engaged for others in negotiating contracts relative to property with the custody of which he has no concern. One who negotiates sales of grain or produce of others, without having its possession, is a produce or grain broker; and one who negotiates for the sale of lands of others is a real estate broker.
    Appeals from the Appellate Court for the First District;— heard in that court on appeals from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Lyman Trumbull, for the appellants:
    Factors and brokers are both agents, but with this difference : the factor is intrusted with the property, while the broker is only employed to make a bargain in relation to it. 1 Parsons on Contracts, 91-99.
    The fact that the ordinance defines a produce broker as one who, for commission, is engaged in selling produce belonging to others, does not make him such.
    The requirement of a license fee of $25 from commission merchants and real estate agents can not be sustained as a tax upon such occupations, for the reason that the ordinance does not provide for its assessment and collection in the manner required by the statute. Town of Lebanon v. Ohio and Mississijtpi By. Go. 77 111. 541.
    The exercise of the power to tax auctioneers, distillers, brokers, etc., is inconsistent with the act in force July 1, 1879, which provides that the aggregate amount of taxes levied by any city shall not exceed the rate of two per cent upon the aggregate valuation of all property within such city subject to taxation therein.
    The ordinance can not be sustained as a tax, and is void as a police regulation. The business carried on by the appellants is such as any person has the right to engage in, and which the State has no right to prohibit.
    Every burden imposed with a view to revenue, is levied under the power of taxation, no matter under what name proposed. License fees, when imposed for revenue, are taxes. Cooley’s Const. Lim. (4th ed.) 619.
    In all the cases where a license fee has been exacted, they were such as the municipality had the right to prohibit or deny. This court has never decided that a license fee may be required for the transaction of a business that may not be prohibited. Farwell v. Chicago, 71 Ill. 270; Joyce v. East St. Louis, 77 id. 156; Barling v. West, 29 Wis. 315.
    Mr. F. S. Winston, Jr., and Mr. Julius S. Grinnell, for the appellee:
    A license is not a tax, in the sense in which that term is used in the constitution and statutes. People v. Thurber, 13 Ill. 554; Firemen’s Association v. Lounsbury, 21 id. 511; Insurance Co. v. Peoria, 29 id. 180; City of East St. Louis v. Wehrung, 46 id; 392; Ducat v. City of Chicago, 48 id. 172; Chicago Packing Co. v. Chicago, 88 id. 221; Walker v. City of Springfield, 94 id. 364; Lovingston v. Board of Trustees, 99 id. 564; East St. Louis v. Trustees of Schools, 102 id. 489 ; Wiggins Ferry Co. v. East St. Louis, id. 560; Cole v. Hall, 103 id. 30; Howland v. City of Chicago, 108 id. 496; Timm v. Harrison, Mayor, 109 id. 593.
    There is no constitutional limitation upon the power of the legislature to say what shall, or shall not, be a subject of license or regulation. The legislature has gone so far as to enact certain penal codes applicable to commission merchants, and to certain other classes of brokers. Crim. Code, secs. 75, 78.
    A real estate agent is a broker. Webster’s Dict.; Bouvier’s Law Dict.; Story on Agency, secs. 28, 32, 32 a; Saladin v. Mitchell, 45 Ill. 79.

       The case of Lyman v. City of Chicago, and this case, were considered together.

   Mr. Justice Walker

delivered the opinion of the Court:

These eases were commenced and tried separately, before the justice of the peace and in the circuit court of Cook county; but inasmuch as the same questions are presented in both cases, they have been argued and submitted as one in this court. We shall therefore consider them together.

In the circuit court it was stipulated that Braun was engaged in selling, in the city, produce, such as butter and eggs, belonging to other persons, when sent to him for that purpose ; that he sold to such persons as would buy; that he also negotiated sales of such produce for others, without having possession of the property,—and for such business so conducted by him he received as compensation therefor a percentage on the gross amount of such sales. It was also stipulated that appellants Lyman & Giddings were engaged in the city in negotiating the sale of, and did sell, real estate, situated in the city and elsewhere, for persons owning the same, and in bringing together persons desiring to sell and purchase, and they sold such property, and for such services they received a compensation determined by receiving a certain percentage on the price of real estate sold, - or received a specific sum agreed upon between them and the seller. In both cases the parties were prosecuted for failing to obtain a license under the city ordinance, and fined before the justice of the peace, and appeals were prosecuted to the circuit court, where, on trial de novo, they were again fined. They appealed to the Appellate Court for the First District, and in that court the judgments were affirmed, and they bring the records to this court by appeal.

Appellants insist that the city ordinance imposes a tax, and that it is not uniform, as required by the constitution, nor is it imposed by a general law; that the city charter does not authorize the adoption of an ordinance that would embrace the occupations or business in which appellants are severally engaged, and that the legislature was powerless to enact the provision of the charter under which the ordinance was adopted. The provision of the charter referred to is clause 91, of section 62, of the general law incorporating cities, villages and towns. (Rev. Stat. 1874, p. 223.) It reads: “To tax, license and regulate auctioneers, distillers, brewers, lumber yards, livery stables, public scales, moneychangers and brokers. ” The ordinance adopted under this provision is this:

“Sec. 1. It shall not be lawful for any person to exercise within this city the business of a money-changer or banker, broker or commission merchant, including that of merchandise, produce or grain broker, real estate broker and insurance broker, without a license therefor.
“Sec. 2. A merchandise, produce or grain broker is one who, for commission or other compensation, is engaged in selling or negotiating the sale of goods, wares, merchandise, produce or grain belonging to others.
“Sec. 3. A real estate broker is one who, for commission or other compensation, is engaged in' the selling of or negotiating sales of real estate belonging to others, or obtains or plans loans for others on real estate.
“Sec. 4. An insurance broker is one who is engaged in procuring or places insurance on buildings, vessels and other property, for others.
“Sec. 5. There shall be collected, annually, for every license granted for any banker, the sum of $100; and there shall be collected, annually, for every license granted for any broker, or commission merchant, or money-changer or broker, the sum of $25; and there shall be collected, annually, for any license granted any real estate broker, the sum of $25; and there shall be collected, annually, for every license granted for any insurance broker, the sum of $25.
“See. 6. That any person violating any provision of this ordinance shall be subject to a penalty of not less than $25 nor more than $100, and to the same penalty for every subsequent violation thereof. ”

We have so repeatedly and uniformly held that a license fee is not a tax, in the constitutional sense, that it may be regarded as settled. But inasmuch as the argument is so repeatedly urged that it is a tax, we may add some further considerations upon the question. If we concede such a fee is a tax, we are unable to perceive that it can benefit appellants’ position a particle. If that is conceded, it is a municipal tax, and such taxes are regulated and controlled by the 9th and 10th sections of article 9 of our constitution. The previous sections of that article refer to State and county revenue, and not to taxes for cities, towns and villages. They are not named in the previous sections. But the 9th and 10th sections relate to and regulate the taxes for cities, towns and villages. They are therein named,—the manner of investing such bodies with the taxing power, and the objects, subjects, and the manner of their imposition, are specified. This being true, we need to look to them alone to determine whether these fees, if they must be regarded as taxes, are sustained by these sections.

The 9th section provides that the legislature may authorize the corporate authorities of such municipalities to levy taxes for corporate purposes. This is the source of their power to impose such taxes. But the power of the legislature and the corporate body is limited to uniformity as to persons and property within the corporate limits of such bodies. Any attempt by the legislature or the corporate authorities to depart from uniformity as to persons or property is prohibited, and such an effort would be void. The 10th section is a limitation on the power of the legislature to impose taxes on municipal corporations, or the persons or property thereof, for corporate purposes, but it may require taxes, uniform as to persons or property therein, to be imposed for the payment of corporate debts. Thus it is seen municipal taxes are specifically provided for by these sections. It is manifest that such taxes do not depend upon, nor are they controlled by, the previous sections of that article.

If these fees, as contended, are taxes, do they conform to the requirement of the 9th and 10th sections of that article ? They are manifestly uniform as to all persons of the same class within the limits of the city. The provisions of these sections are similar to the same provisions in the constitution of 1848, and under that instrument it was held that a tax or license fee was only required to be uniform as to the class enumerated, within the corporate limits. (See East St. Louis v. Wehrung, 46 Ill. 392, and the same case of the January term, 1868, unreported.) The provisions in each constitution being the same, they will admit of but one construction. Nor do we see any reason for departing from the construction then given to these provisions. So it is seen that whether these licenses be regarded as. fees or taxes, they are fully justified by the constitution, nor do they violate any of its provisions. There is no limitation on the legislative power to invest such municipalities with power to tax for corporate purposes, but they shall be uniform as to persons and property within the corporate limits. If such power has been conferred, and properly exercised, then, if a tax, as claimed, it must be sustained.

It is, however, urged, that the 91st clause of section 62 of the city charter is repugnant to the latter clause of section 1, of article 9, of the constitution. If this is a tax, it in no sense depends on that section for its validity. As we have seen, this tax is dependent alone on the 9tli and 10th sections of that article, and can not be controlled by the 1st and 2d sections, because they refer to other and entirely different taxes, levied for other than city purposes. It is true that this clause of section 62 does not require uniformity, but it does not attempt to dispense with it, and the constitution does require it, and the ordinance conforms to the requirement, and that satisfies the constitution.

If this is a tax, then there can ■ be no question that the General Assembly had the power to authorize its imposition. Judge Cooley, from the adjudged cases, states the general doctrine to be: “The power to impose taxes is one so unlimited in force, and so searching in extent, that the courts scarcely venture to declare that it is subject to any restriction whatever, except such as restrains the authority which exercises it. It reaches every trade or occupation; to every object of industry, use and enjoyment; to every species of possession ; and it imposes a burden which, in ease of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of government affect more constantly and intimately all of the relations of life, than through this power. ” (Cooley’s Const. Lim. 479.) This statement of the doctrine must, of course, be understood as qualified by constitutional limitations imposed by the people when exercising their sovereign powers. As there is no provision of the fundamental law forbidding the imposition of this fee or tax, there can be no question that the legislature had power to authorize its imposition.

It is further insisted that the 91st clause of section 62 of the city charter does not confer power on the city to demand a license fee, in these cases, for the privilege of pursuing the various occupations of brokers. It is claimed that these appellants are not brokers,—that Braun is a commission merchant, and Lyman & Giddings are real estate agents, and neither calling is embraced in that clause of the charter, and not in fact being brokers, they were not required to procure licenses to exercise their callings. Lexicographers of high authority have defined the term “broker” to be one who is engaged for others in negotiating contracts relative to property with the custody of which they have no concern, and this is the precise" technical meaning of the term. A factor is one who sells property of others when he has its possession. Here, Braun negotiated sales of property of which he never had possession, which brings him within the definition, and Lyman & G-iddings only sold property of others of which they had no possession. This brings them within that clause of the charter, and the power of the city to demand a license fee, and to impose a penalty for not procuring a license before commencing and transacting their business.

It is also insisted that if this is a police regulation, it can not be applied to any but immoral vocations, or such as are injurious to the well being of society. The term, “police power of the State, ” is used in different senses. In its broadest and most unlimited sense it embraces all laws or regulations for the well being or government of the people. In its most limited sense it is used to express the power of preservation of the health or safety of the people by depriving persons of liberty, or to destroy private property, in despite of constitutional limitations, in great and pressing emergencies, to prevent the spread of contagious diseases, or other great calamities to the people or their property. To accomplish such purposes men are deprived of liberty and property without due process of law, because to resort to the ordinary processes of the law would be too slow to avert the impending calamity. But appellants claim this is a tax, and if so, then the power is referable to the legislative power to raise or authorize the raising of revenue for general or local governments. The Federal government, for almost a quarter of a century, has imposed such fees or taxes on various business or callings, for revenue purposes, without the power being questioned. The act of Congress prohibits persons raising or producing tobacco for sale, from selling it at retail, or to any person not having a license to purchase such property. Nor can the cultivator manufacture the raw material produced by his own labor without paying a heavy tax, and the manufacturers of it and particular kinds of medicines have been heavily taxed on such articles. Even matches, which enter as largely into the daily consumption of the whole people as any other article, except food, have been subject to a heavy tax. None of these things are supposed to be pernicious to the public, and yet we are aware of no question having been made and sustained as to the constitutionality of the law imposing the fee or taxes, and unless restrained by constitutional limitation the States are as fully invested with power to raise revenue for State and local purposes as is Congress to provide revenue for Federal purposes.

Nor is the objection well taken that no business can be regulated, or burthens imposed on its pursuit, unless there be power to suppress the business. In the ease of Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560, it was held the legislature had power to authorize the city to regulate the ferry, and impose a license fee for each boat used by the company, notwithstanding the franchises the company were exercising were granted by charter from the legislature. Yet ho one will claim that the legislature could repeal the charter or impair its franchise, or authorize the city to do so. This case was affirmed in the Federal Supreme Court. Until a ■comparatively recent date our legislature required all merchants of every kind to pay for and procure a license to vend their goods, wares and merchandise, under a penalty. Nor are we aware that the power was ever questioned. And similar laws have been in force in the various States of the Union, from their organization until a recent date, if not till the present time. In the case of Howland v. Chicago, 108 Ill. 496, it was held that the legislature had power to authorize the city to require a keeper of a livery stable to procure a license for the purpose, under a penalty for failing to do so. Such an occupation is a natural right, as legitimate as is that of either of these appellants. We have no question of the legislative power to authorize the imposition of these license fees, and the penalties for not complying with the ordinance.

Thus we have seen that whether this be called a license fee or a tax, it is fully authorized by the constitution; nor does the charter or ordinance conflict with any of its provisions.

The judgments of the Appellate Court in these cases are affirmed.

Judgments affirmed.


author: Mr. Justice Scott

text:
    The Town of New Boston v. The Board of Supervisors of Mercer County.

      Filed at Ottawa May 19, 1884.

    1. Bbidg-es—county aid—of the discretion of the county hoard. Where the commissioners of highways have determined that the construction of a bridge or bridges across any stream in their town is necessary, and that the cost thereof is too great a burden to be reasonably borne by the town, and apply to the county board for an appropriation for one-half of the cost of its construction, having first provided for the other half of the necessary expenses, under the act of 1879 the county board has no discretion to refuse the aid sought.
    2. Same—whether too late to apply for county aid after contract is made—who to determine the character of bridge to he huilt. Application to the county board for such an appropriation is not too late after the commissioners of highways have let the contract for building the bridge. The committee appointed by the county board have nothing whatever to do in connection with the commissioners of highways, or otherwise, in determining the character of the bridge to be built or in the letting of the contract to build the same. Those matters are intrusted by law exclusively to the commissioners of highways.
    Appeal from the Appellate Court for the Second District heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.

      Mr. I. N. Bassett, and Mr. J. C. Pepper, for the appellant.
    Mr. J. C. Wharton, and Mr. B. C. Taliaferro, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The relator in this case shows, by its petition, filed December 18, 1882, that Edwards river runs through the town of New Boston from east to west, which makes it necessary to keep up a number of costly bridges in the town, and that two certain bridges—one on the Keithsburg road and the other on the Aledo road—had become unfit for use, and that such roads were great public thoroughfares in such town, and bridges over the river where these highways cross it are absolutely necessary to accommodate the public. The amount necessary to construct the respective bridges is stated, and also the amount that could be lawfully raised in any one year for bridge purposes, by taxation, is stated, and it is then alleged that the relator has provided funds necessary to pay for one-half of the expenses for the construction of such bridges, and that the cost of building either or both of such bridges would be an unreasonable burden on the town. It is also further set forth, the commissioners of highways of such town having determined to build the bridges at the points indicated, they presented a petition in writing to the board of supervisors of Mercer county, at their meeting in December, 1882, setting up and showing the facts as above alleged, and asking for an appropriation from the county treasury to pay one-half of the cost and expenses of building each bridge, (a copy of which 'petition was attached to and made a part of the petition herein,) and that the board of supervisors refused to make any appropriation to aid in building such bridges.

Section 110, of the. act of 1879, in relation to “roads and bridges” in counties under township organization, under which this proceeding was instituted, was considered by this court in The People v. Supervisors, 100 Ill. 640, and it is unnecessary now to do more than restate the construction therein given to it. It was held in that case, when the commissioners of highways of a town have determined the construction of a bridge across any stream in their town is necessary, and that the cost thereof is too great a burden to be reasonably borne by the town, and apply to the county board for an appropriation for one-half the cost of its construction,—the commissioners of highways having provided for the other half of the necessary ■ expenses,—the county board is required by this statute to make the desired appropriation from the county treasury, and that in such a case the county board has no discretion to refuse the aid sought. It will be seen the facts alleged in the petition in this case, and admitted by the demurrer, are precisely analogous with the facts in the case cited, except in the present case the commissioners of highways have determined to construct two bridges over a stream in the town they represent, and ask aid for both of them. That,fact can make no difference. The language of the statute is, “when it shall be necessary to construct or repair any bridge in any town, ” and certainly when public necessity requires it to be done, the authority to construct more than one bridge at a time is as clear as it is to construct them separately. Any other construction is too illiberal to be adopted.

The application to the county board, which is made a part of the petition herein, shows the commissioners of highways had previously let the contract, at prices agreed upon, for constructing both bridges, and it is therefore contended the petition shows on its face the application to the county board came too late, and that the board was not bound to make any appropriation in aid of the construction of either of such bridges. It is quite clear, from a consideration of all the provisions of the statute on this subject, the matter of constructing and repairing bridges is committed exclusively to the commissioners of highways of the town. As a general proposition this much is conceded, but it is insisted, in cases where the county is called upon for aid, that clause of section 110 which declares that all funds to be raised under this section “shall be expended by and under the joint control of the commissioners of highways of the town asking such aid, and two persons appointed by the county board of the county granting the same, ” creates an exception to the general rule. The construction contended for can not be adopted. Plainly it is the duty of the commissioners of highways to let all contracts for the construction of bridges in their respective towns. This is so because the statute has so provided, and no other mode of letting contracts for bridges is provided in cases where county boards are required by law to furnish aid. All this clause of the statute means is, that the money provided, both by the town and that appropriated from the county treasury, shall be “expended” by and under the joint control of the highway commissioners and the two persons appointed by the county board,—that is, it is made their duty to see that the money so raised and appropriated is “expended” for the purposes intended, and not otherwise. It is the duty of these persons to so control the money that it may be used exclusively to pay for such public improvements in which both the town and county are interested, as the work- may progress. There is not the slightest indication anywhere in section 110, or elsewhere in the statute, the two persons to be appointed by the county board granting the aid shall act with the commissioners of highways of the town in determining the character of the bridges to be built, or in the letting of the contracts to build them. That matter is intrusted exclusively to the judgment and discretion of the commissioners of highways of the respective towns. As the legislature has seen fit to commit such matters to the management of the local officers of the town, it is not the province of the courts, by judicial construction, to place it elsewhere.

The petition herein shows on its face all the facts required to warrant a mandamus, as sought, and the demurrer thereto was improperly sustained. The judgment of the Appellate Court will therefore be reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court, and remand the cause for further proceedings conforming to the views expressed in this opinion.

Judgment reversed.

Mr. Justice Walker : I hold that under the 110th section the commissioners, on ascertaining the cost of the bridge, may petition the county board, so as to enable it to appoint two persons to act in the expenditure of the money, and to take part in adopting plans and making contracts for its construction. I hold the statute did not contemplate that the two persons thus appointed should act only in paying the money. The expenditure involves something more than its mere payment on contracts made by the road commissioners. It implies that they shall participate in every step from the time plans are proposed, and the making of contracts,—in other words, to participate in everything which incurs liability to pay for constructing the bridge, as well as paying for it. I therefore hold, as the bridge was contracted for before aid was asked, the county board was not liable to contribute to its construction.


author: Mr. Justice Mulkey

text:
    Martina Sproehnle et al. v. Henry S. Dietrich.

      Filed at Ottawa May 19, 1884.

    1. Conflict of jurisdiction— between State and Federal courts— abuse of process. A bill will not lie in the State courts to set aside a sale of land on execution issued upon a judgment in the Circuit Court of the United States, and have the marshal’s certificate of purchase declared void, and a cloud upon the complainant’s title, and to have the same delivered up for cancellation. The remedy in such a case is in the Federal court, to avoid any conflict of jurisdiction.
    2. The Federal courts are the proper tribunals to apply to for redress when there has been an abuse of their process. This is the better rule, certainly, so long as anything remains to be done by those courts, or any of their officers, to carry into effect the object and purposes of the litigation commenced in them.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    ■ Mr. Francis Lackner, and Mr. Axel Chytraus, for the appellants:
    Neither the judgment of the Federal court, nor the execution issued thereon, is sought to be set aside. All that is asked is to have the sale and certificate of purchase set aside, on the ground that the execution debtor had no interest in the property at the date of the judgment, or at any time since, complainants being all this time absolute owners of the property.
    The marshal was not, by the writ, directed to sell this property, or any other, specifically. He sells what he can find, the purchaser not becoming a party to the proceedings as in a judicial sale. Rohrer on Judicial Sales, sec. 28.

      We contest only with the execution purchaser, and he must take care of himself. He takes only the title of the debtor. Rohrer on Judicial Sales, sec. 923.
    The suit in the Federal court, where the judgment was rendered and execution issued against Francis A. Sproehnle, being ended, that court is through with the matter. The character and authority of its officers being admitted, it will hot interfere, although the title conveyed at the sale by its officers is subsequently involved. Day v. Gallup, 2 Wall. 97.
    Whenever the litigation is ended or the possession of the officer or court discharged, other courts are at liberty to deal with the property according to the rights of the parties before them. Buck v. Colbath, 3 Wall. 334. See, also, Merchants’ Bank v. Evans, 51 Mo. 335; Bruce v. Leary, 55 id. 43.
    Mr. Josiah H. Bissell, and Mr. Jajíes R. Mann, for the appellee:
    This case comes strictly within the principle that one court will not interfere with the officers, process or proceedings of another court of concurrent jurisdiction, which principle is distinctly affirmed in the case of Logan v. Lucas, 59 Ill. 237. See Munson v. Harroun, 34 Ill. 422.
    Persons claiming one title to real estate can not, by bill in the State court, prevent the sale of another and adverse title by the marshal of the United States court, which is essentially what is sought to be done by this bill.
    • The cases cited from Missouri were cases in which the marshal had made his deeds, and have no application here; and neither does that of Day v. Gallup, 2 Wall. 97. In Buck v. Colbath, 3 Wall. 344, the plea on which the marshal relied contained no denial that the property seized was the property of the plaintiff, nor any averment that it was the property of either of the defendants in the attachment suit, nor that it was in any other manner subject to be taken under that writ.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellants, on the 6th of April, 1883, filed in the Superior 'Court of Cook county the present bill, by which it is sought to remove an alleged cloud upon the title of lot 71, block 90, school section addition to Chicago, making Henry S. Dietrich, the appellee, defendant thereto. The bill shows that this property originally belonged to Francis A. Sproehnle, the late husband of appellant, Martina Sproehnle; that in 1870 Mrs. Sproehnle filed a bill in the Superior Court of Cook county, against her husband, for a divorce; that by virtue of the decree rendered in that case she acquired title to the property in question, subject to certain trusts, not necessary to be here noticed, and that she and her co-complainants are now, by virtue of said decree, the legal and equitable owners in fee of said premises; that the premises in question, in July, 1882, were sold by the United States marshal, to appellee, by virtue of an execution issued upon a judgment in favor of one James K. Murphy, and against the said Francis A. Sproehnle, rendered in the United States Circuit Court for the Northern District of Illinois, at its December term, 1873; that the marshal, in pursuance of said sale, issued to appellee a certificate thereof, which was duly recorded on the 19th of July, 1882; that appellee claims to have a lien on the premises by virtue of such certificate, and threatens to have executed and delivered to him a marshal’s deed for said premises when the time for redemption expires; prayer that the certificate of sale be set aside and declared void as against complainants, and a cloud upon their title, and that the same be delivered up for cancellation. The Superior Court sustained a demurrer to the bill, and the complainants electing to stand by the bill, the court entered an order dismissing the same, which order, on appeal to the Appellate Court for the First District, was affirmed, and the judgment of affirmance by that court is now before us for review.

In Munson v. Harroun, 34 Ill. 422, it appeared that Mun-son, as deputy marshal, under a writ of fieri facias issued out of the Circuit Court of the United States for the Northern District of Illinois, against one Wright, seized certain goods claimed to belong to Harroun. The latter thereupon brought replevin against the deputy marshal for the goods, and it was held the action would not lie,—not because the execution against Wright afforded the officer any protection in seizing under it the property of Harroun, but simply to avoid complications that would almost inevitably arise if State courts should, for any reasons, attempt to interfere with the process of the Federal courts. In such cases the Federal courts are the proper tribunals to apply to for redress where there has been an abuse of their process. Such is certainly the better rule, so long as anything remains to be done by those courts, or any of their officers, to carry into effect the object and purposes of the litigation commenced in them.

In Logan v. Lucas et al. 59 Ill. 237, “the defendant in an execution issued upon a judgment rendered in the Circuit Court of the United States, upon a bill filed in a State court, sought to enjoin, not directly the plaintiff in the judgment, or the United States officer charged with the execution, but only a third party, who, it was alleged, caused the execution to be issued, and controlled the same, and asked that he might be restrained from any further action in respect to the execution or the collection of the judgment, and that he be required to command the officer having the execution to take no further proceedings under it, ” and it was held this was an attempted interference with the execution of process from the United States court, and the decree below dismissing the bill was therefore affirmed.

So far as the ultimate fruits of the litigation in the present case are concerned, to grant the relief asked would, in effect, be to defeat the whole object of the suit, as effectually as if the United States marshal had been enjoined from making the sale, or issuing a certificate thereof in the first instance, which all will concede could not have been done. It is a familiar principle, the law will not permit a thing to be done by indirection which it would not sanction if done directly.

We are of opinion that to sustain the present bill would be violative of the general principle recognized in the cases above cited, as well as of that comity which exists between the Federal and State courts. Entertaining this view, it follows we can not do otherwise than affirm the judgment of the Appellate Court, which is accordingly done.

Judgment affirmed.


text:
    Timothy Moshier v. John E. Frost et al.

      Filed at Ottawa May 19, 1884.

    1. Parties—recovery by one member of a law firm—for services not embraced in the business of the partnership. Where the firm business of attorneys at law only extends to their county, and one of such-firm is individually retained in cases out of such county, and not the firm, then, on the death of the attorney so employed, an action to recover for his services will be properly brought in the name of his administrator; and when an attorney is retained before forming a partnership, and his partner has no connection with or interest in the management of the litigation, there will be no right of action on such retainer to the firm.
    2. Estoppel—by party’s own admissions or statements, when acted upon. After the death of an attorney who had been attending to legal business for a party, the latter refused to recognize the attorney’s partner as having any interest in the claim for services, insisting that he employed the partner who had died, alone, and thereby induced the administrators of the deceased attorney to sue in their names for the fees due for such services: Held, that in such suit the defendant was precluded from insisting that he retained the firm. Parties are precluded from contradicting their solemn admissions or statements, deliberately made, when acted on by others.
    3. Evidence—entry in party’s oivn books. On the trial of a suit to recover for the services of an attorney at law, brought by his personal representatives, the defendant proved by a witness that he, the witness, paid the attorney his fee in a certain suit, brought in the name of the defendant. The plaintiffs then introduced in evidence an entry in the deceased attorney’s books, in his handwriting, showing that such fee was paid by the defendant: Held, that there was no error in the admission of such entry, as it tended to contradict the witness’ statement that he paid the fee.
    Appeal from the Appellate Court for the Second District;—■ heard in that court on appeal from the Circuit Court of Knox county; the Hon. Geo. W. Pleasants, Judge, presiding.
    Messrs. Sanford & Carney, for the appellant:
    A party is presumed to have contracted with those who, at the time of the contracting, were openly and publicly members of the firm. Page v. Brant, 18 Ill. 37; Story on Partnership, sec. 241; 1 Chitty’s Pleading, 9, 11, 12.
    A person suffering his name to be used in business is to be treated as a partner, whatever may be the agreement between himself and the other co-partners. Fisher v. Bowles, 20 Ill. 396; 3 Kent’s Com. 52; Collyer on Partnership, 75; Stearns v. Haven, 14 Vt. 540; Guidon v. Robson, 2 Camp. 802.
    If attorneys who are co-partners accept a retainer, the contract is joint, and continues to the end of the suit. Walker v. Goodrich, 16 Ill. 341.
    For a demand due a firm, upon the death of one, the suit must be brought in the name of the survivor or survivors. 1 Chitty’s Pleading, 19; Peters v. Davis, 7 Mass. 257.
    There is no estoppel, because there is no element of fraud, and there was no misrepresentation of the facts. Davidson v. Young et al. 38 Ill. 152; The Peoples. Brown, 67 id. 435; Powell et al. v. Rogers, 105 id. 318; Bigelow on Estoppel, 480, p. 60; Mills v. Graves, 38 Ill. 455.
    Messrs. Williams & Lawrence, for the appellees:
    Tunnicliffe, as to all matters outside of Knox county, was not an actual but only a nominal partner. Moshier was so notified while the services were being performed. This being so, Frost might have sued for his services in his name, alone. 1 Saunders’ Pleading, p. 18, sec. 16.
    A mere nominal partner,, having no interest in the firm, need not be joined. 2. Saunders’ Pleading, (2d Am. ed.) sec. 701; 1 Chitty’s Pleading, 12; Gow on Partnership, (3d Am. ed.) 128, sec. 129; 2 Greenleaf on Evidence, sec. 478; Story on Partnership, (5th ed.) sec. 241; Collyer on Partnership, (2d Am. ed.) sec. 394, or sec. 662 of Perkins’ ed.
    The entries in Frost’s book, being in his handwriting, were most clearly admissible. 1 Greenleaf on Evidence, sec. 147.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of assumpsit, brought .in the Knox circuit court, by the representatives of T. G. Frost, deceased, against Timothy Moshier. The declaration contained but one count, being a common count for work and labor, and for services rendered. To, it was filed the plea of the general issue. A trial was had by the court and a jury, resulting in a verdict in favor of plaintiff, for $1100. A motion for a new trial was overruled, and judgment was rendered for that amount. Defendant appealed to the Appellate Court for the Second District, where the judgment of the circuit court was affirmed, and he appeals to this court and asks a.reversal.

The facts have been conclusively found by the lower courts. It was insisted that the retainer for a part of the services was with the firm of Frost & Tunnicliffe, and the survivor should sue in his own name. To this claim it is answered that the firm only extended to Knox county, whilst the services were rendered in the courts of other counties. This is a question of fact, and the jury found for appellees, and the Appellate Court, by affirming the judgment, found the facts the same way.

Appellant claimed that the services rendered by Frost, after he moved to Chicago and formed a partnership with Miller, were by that firm, and the latter could alone sue as surviving partner. On the other side, it was contended that Frost was retained before he went to Chicago, and that Miller had no connection with or interest in the management of the litigation,—that appellant only retained Frost, and did not know Miller in the transaction. On this issue the jury heard the evidence, and found for appellees, and the Appellate Court found the'same way by affirming the judgment. That court, in fact, has found all the controverted facts for appellees.

There is some complaint made of the instructions given for appellees, on the trial in the circuit court. The fifth and sixth of appellees’ instructions are criticised. They inform the jury that if they believe, from the evidence, that after Frost’s death appellant refused to recognize Miller as having any interest in the claim, and insisted that he employed Frost alone, he was thereby precluded from insisting that he retained the firm. In this we perceive no error. Parties are precluded from contradicting their solemn admissions or statements, deliberately made. The law will not permit a party to make statements that induce the other party to act upon them as true, and then prove his statements were untrue. Here, by his statements, he induced Frost’s representatives to sue in their names, and now he insists that he may contradict his statements, and defeat a recovery.

It is urged that the court erred in permitting appellees to read in evidence entries in Frost’s books. We are unable to perceive that there was any error in this. Claycomb had testified he paid Frost his fee in the ease of Moshier v. Claycomb et al., and the entry in Frost’s books, read in evidence, showed that it was paid by Moshier. The entry was proper evidence, as tending to contradict Claycomb’s statement that he had paid the fee to Frost.

Perceiving no error in this record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Harvey A. Ferbrache et al. v. Peter A. Ferbrache.

      Filed at Ottawa May 19, 1884.

    1. Witness—competency—as against persons defending as heirs. A mother who has made a warranty deed for a tract of land to her son, is not a competent witness for such son on a bill by him against the heirs of another son, to set aside a prior deed made by her to the deceased son, as a cloud upon the title of the complainant, in respect to facts which occurred in the lifetime of the deceased son, she having a direct interest in the result of the litigation. Nor is the complainant competent.
    2. Warranty of title—whether a protection as against subsequent acts of grantee. Where the owner of a tract of land has made two warranty deeds for the same, to different persons, the first of which is attacked and sought to be avoided by the second grantee on the ground that the first grantee had rescinded the contract, or reconveyed whatever interest he had, the grantor’s interest is not equally balanced, for the reason that the covenants in the prior deed would not extend to a consequence of any act of the prior grantee, and embrace the case of any future defect of title in him, caused by a subsequent conveyance of the land made by himself.
    3. Statute of Frauds—verbal contract to convey land—part performance. By the Statute of Frauds all contracts for the transfer of title to land must be in writing, and to take a case out of the statute on the ground of part performance, it is indispensable that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, and that possession shall have been taken of the land under the contract, and payment of the purchase money made.
    4. Where the evidence, on a bill to enforce a verbal contract for the transfer of land, is of a loose and vague character, lacking in definiteness as to the interest surrendered,—whether a voluntary gift or not, and what were the terms,—and it is not shown that any consideration has been paid, or there was any to be paid, the contract will not be specifically enforced.
    5. Limitation—as to who may acquire an adverse title. Where a person having title to land leaves another in possession under him, the person so left in possession can not, while holding possession under the owner, acquire an adverse title against him or his heirs by reason of his actual possession and payment of taxes, under the Limitation law.
    Writ of Error to the Circuit Court of Stark county; the Hon. N. M. Laws, Judge, presiding.

      On the 2d day of September, 1855, one Peter Ferbrache died intestate, seized of the land in controversy in this case,— a certain described sixty acres of land in Stark county,— leaving surviving him his widow, Elizabeth Ferbrache, and several children, his heirs at law. Soon afterward, Peter A. Ferbrache, one of said children and heirs, filed a petition for partition and assignment of dower as to said land, and other lands of which his father died seized, which resulted in the assignment of the said sixty acres of land to the widow, Elizabeth Ferbrache, as. her dower, and an order of sale of all the lands, including the reversion of said sixty acres so assigned as dower. Upon sale being made, the widow became the purchaser of the reversion of said sixty acres, and a commissioner’s deed was made to her for the same. The widow thenceforward continued to occupy the land until the 3d day of November, 1856, when she made a warranty deed of the same to her son Daniel D. Ferbrache. Upon receipt of this deed, Daniel D. went into possession of the land, and for some time lived in the same house upon it with his mother, the said Elizabeth. In the course of about a year, however, he removed some five miles distant, to a farm at Lawn Eidge, in Peoria county, leaving his mother in the possession and occupancy of the land.
    In the year 1865 or 1866 said Daniel D. Ferbrache died, leaving surviving him five minor children, his heirs at law. Some time in the year 1866, the administrator of the estate of Daniel D. Ferbrache, and guardian of some of his children, finding among his papers the unrecorded deed of Elizabeth Ferbrache to said Daniel D., caused the same to be duly recorded in the recorder’s office of Stark county. On the 9th day of January, 1874, the said Elizabeth Ferbrache made a warranty deed of the same land to her son Peter A. Ferbrache, who then resided in El Paso, Woodford county. Said Elizabeth continued to reside upon the land-with her son Peter A., up to the time of her death, which occurred in the month of January, 1875, it being the consideration of her deed to Peter A. that he should support her during her life.
    On the 11th day of April, 1874, said Peter A. Ferbrache filed his bill in chancery against the minor heirs of Daniel D. Ferbraohe, to remove the said deed of Elizabeth Ferbraohe to Daniel D., as a cloud upon the title Peter A. had derived from said Elizabeth through her deed to him of January 9, 1874. In this bill Peter A. alleges that some time in the year 1856 or 1857, said Elizabeth, being then the owner of the land in fee, made a contract selling the same to Daniel D., upon a credit, for the sum of $2000, and made him the deed aforesaid; that Daniel D. gave to said Elizabeth his promissory notes for $2000, in payment of the purchase money; that Daniel D. went into possession of the land under the deed, and held possession under the same for about one year; that then said Elizabeth and Daniel D. entered into another contract, by which it was agreed that said contract of bargain and sale of the land should be rescinded, and that Daniel D. should surrender the land, and that she should cancel and return to him his notes for the purchase money; that she surrendered the notes, and he surrendered the land and the deed, and then the deed and notes were destroyed. By an amendment to the bill it is alleged that the deed was not destroyed, but by some mistake, accident or other means the same was left still in existence, and was found among-,the papers of Daniel D. after his death, and caused to be recorded by his administrator.
    The heirs of Daniel D., in their answer, deny any such contract of rescission. They also set up the Statute of Frauds in their defence. They also allege that at the time Daniel D. left the land and went to Lawn Ridge there was an agreement between him and his mother that she was to have the land rent free during her life, after which he was to resume possession under his deed. They also filed their cross-bill, setting up Daniel D.’s ownership of the land; that some time in 1856 or 1857 he delivered up possession thereof to his mother, Elizabeth, with the understanding that she should occupy the same, taking the rents and profits, and paying the taxes thereon, during her life, and at her death Daniel D. should become repossessed of the same, and praying that the possession of the premises be decreed to them, and that Peter A. account for the rents and profits from the time of the death of said Elizabeth, and that his deed be declared a cloud upon their title. July 30, 1875, Elizabeth N. Schenck, and the other heirs of Peter Ferbrache, deceased, filed their original bill against Peter A. Ferbrache and the heirs of Daniel D. Ferbrache, alleging that said commissioner’s deed to Elizabeth Ferbrache had been rescinded, and vested no equitable title, and that it misdescribed the property, so that no legal title was ever vested by it; that the deed of Elizabeth Ferbrache to Daniel D. Ferbrache had been abandoned and rescinded, and that the deed of Elizabeth Ferbrache to Peter A. Ferbrache was fraudulent and void, wherefore the equitable title of the land was still in the heirs of Peter Ferbrache, deceased, and prayed that said conveyances be set aside as clouds on their title. Answers and cross-bill were filed.
    This case was, hy a consent order, consolidated, for the purposes of trial, with the cause first named, with a stipulation that evidence taken in either case be also read in the other, so far as material and competent, and both causes were tried together. The court below found that the equities were with Peter A. Ferbrache, and decreed that the deed from Elizabeth Ferbrache to Daniel D. Ferbrache be set aside as a cloud upon the title of Peter A., and all of said bills and cross-bills impeaching his title were dismissed. The heirs of Daniel D. Ferbrache alone sued out this writ of error.

      Mr. John Muckle, for the plaintiffs in error:
    The grounds of relief set out in the bill are within the Statute of Frauds, and can not be established by parol evidence.
    Where an estate has passed by deed, its cancellation or destruction will not divest the title from the grantee and reinvest the same in the grantor. 2 Blackstone’s Com. 309, note by Chitty, and note by Sharswood; Chipman v. Whitlemore, 23 Pick. 231; Morgan v. Elam, 4 Yerg. 375; Shutt v. Large, 6 Barb. 373; Raynor v. Wilson, 6 Hill, 469; Mallory v. Stoddard, 6 Ala. 801; Jordan v. Pollock, 14 Ga. 145.
    The bill is without equity, unless tortured into a bill for specific performance. Then the Statute of Frauds applies, and it is indispensable, to avoid the statute, that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, etc. Worth v. Worth, 84 Ill. 442; Langston v. Bates, id. 524; Pickerell v. Morss, 97 id. 220; Padfield v. Padfield, 92 id. 198.
    Before a party can maintain a bill to remove a cloud from his title to land, he must show a title, either legal or equitable. Hopkins v. Granger, 52 Ill. 504; West v. Schnebly, 54 id. 523; Emery v. Cochran, 82 id. 65.
    The complainant was not a competent witness in his own behalf, and Elizabeth Ferbrache, as to matters which occurred in the lifetime of Daniel D. Ferbrache, was. incompetent, as she was testifying in her own interest. Boynton v. Phelps, 52 Ill. 210; McCann v. Atherton, 106 id. 31; Alexander v. Hoffman, 70 id. 114; Richardson v. Hadsell, 106 id. 476; Hurlbut v. Meeker, 104 id. 541.
    The second section of the act relating to evidence also excludes Elizabeth Schenck, J.udith Joh and Susannah Jones, they being both parties to the suit and parties in interest.
    Messrs. Hopkins & Hammond, for the defendant in error:
    Where a grantee and grantor, in ignorance of the law, attempt, bona fide, to reconvey land by destroying an unrecorded deed, it is held that the equitable title passes, and a conveyance may be had, and such case is not within the Statute of Frauds. Dunwiddie v. Bell et al. 95 Ill. 360; Bright v. Bright, 41 id. 97; Kurtz et al. v. Hibner et al. 55 id. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489.
    When Elizabeth Ferbrache conveyed to Peter A., she had a perfect title, under both the fourth and sixth sections of the Limitation act. Mrs. Ferbrache had no legal interest in the question which of two warranty deeds should prevail, for she was equally liable on the covenants of each of them.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Before the death of Elizabeth Ferbrache, Peter A. Ferbrache caused her deposition to be taken in support of his bill. We do not regard this deposition, so far as it respects facts which occurred in the lifetime of Daniel D. Ferbrache, as competent testimony against his heirs. The provision of the statute is, that no party to any civil action, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as heir of any deceased person, unless called by such adverse party, except in certain specified cases, the only one of which affecting this case is, that such party ór interested person may testify to facts occurring after the death of such deceased person whose heir so sues or defends. (Rev. Stat. 1874, p. 488, see. 2.) Elizabeth Ferbrache was directly interested in the event of the suit, by reason of her warranty deed of the land to Peter A. Ferbrache. If he succeeds in this suit, her covenants of warranty are satisfied. If he does not succeed, she is liable upon such covenants,—hence her direct interest in the event of the suit, and the incompetency of her testimony against the plaintiffs in error. Plain v. Roth, 107 Ill. 589.

We perceive no force in the position taken that plaintiffs in error are not brought within the provision of the statute, simply by the fact that their title came to them by descent from their father, as he took by purchase, and that if any title descended to them it was a title by purchase. It matters not in what mode the title of the ancestor came to him. The undoubted title to the land, which once was in Daniel D. Ferbrache, is claimed to have been afterward parted with by him. Plaintiffs in error deny that the title ever was so parted with, and insist that the land descended to them from said Daniel D., and in the capacity of heirs to him they claim the land and defend the suit, and so come precisely within this statute provision.

The assertion that Elizabeth Ferbrache had no legal interest in the question which one of her two warranty deeds to Daniel D. and Peter A., respectively, should prevail against the other, because she was equally liable on the covenants of each of them, is obviously untrue. The covenants in her deed to Daniel D. clearly would not extend to a consequence of any after act of his, and embrace the case of any future defect of title in him, caused from a subsequent conveyance of the land made by himself.

Peter A. Ferbrache being a party to the suit, his testimony is alike incompetent, under the statute. There remains, then, in support of the allegation of the bill of a rescission of the sale to Daniel D. Ferbrache, but the testimony of the two daughters of Daniel D.,—Elizabeth Schenck and Judith Joh, and their husbands, John Schenck and David Joh, as to declarations made by Daniel D. His declarations, testified to by these witnesses, may be summarized about as follows : Elizabeth N. Schenck: “He (Daniel D.) said he had given it (the land) up to keep peace, .and that mother was to keep it.” John Schenck: “He said he gave it up on condition that she (mother) would hold it while she lived. ” Judith Joh: “He told me he had given it up to her (mother) on her promise never to sell it.” David Joh: “He told us he had given it up with the understanding she should keep it. ”

There are some corroborating facts, as, that Daniel D. left the land, leaving his mother upon it, and went on a farm at Lawn Eidge, and subsequently paid no taxes on the land, nor, so far as appears, exercised any act of ownership over it; that during his lifetime (nine or ten years) he never put his deed upon record, and several years afterward, when Mrs. Ferbrache agreed to deed ten acres of the land to Peter A. Ferbrache, Daniel D. got up a remonstrance, with the other heirs, to dissuade and prevent her from deeding it. On this occasion he did not claim the land himself, but complained that it was contrary to the arrangement he had made with his mother. And Mrs. Ferbrache made improvements upon the land to the amount of some $460. There is in the case the testimony of Solomon Ferbrache, who was living in the family at the time of Daniel D. leaving the place and going to Lawn Eidge, that Daniel D. said on that occasion “he would move up to his farm on Lawn Eidge, and let his mother have the home place her lifetime; this was the substance of the agreement between them, to the best of my recollection. ” This witness appears at that time to have been but about fourteen years of age, and there may be other circumstances which detract from his credibility. The corroborating facts do not j)oint necessarily, to a rescission of the sale which had been made by Daniel D. to his mother, but would agree very well with the theory that he had given up the place to his mother for her life.

We are of opinion that the evidence comes short of sustaining the allegations of the bill. It is of a loose and vague character, and lacks in definiteness as to what was the interest ' surrendered,—whether a voluntary gift, or not, and what were the terms. Whatever may have been the arrangement with the mother, shown by the evidence, it appears to have been attended with conditions which would make it incompatible with the deed which was made to Peter A. Ferbrache. The bill can be viewed in no more favorable light than as essentially one to enforce an oral contract for the conveyance of land. By the Statute of Frauds all such contracts must be in writing. To take a case out of- the statute on the ground of part performance of the contract, it is indispensable that the contract shall be established by competent proofs to be clear, definite and unequivocal in all its terms, (Worth v. Worth, 84 Ill. 442, Bohanan v. Bohanan, 96 id. 591, 2 Story’s Eq. Jur. sec. 764,) that possession shall have been taken of the land under the contract, and payment of the purchase money made. It does not appear here that there was any consideration paid, or to be paid, and there is not that 'clearness and satisfactoriness of proof which is required in order for the enforcement of a verbal contract in respect to land.

The attempt to make title in Mrs. Ferbrache under the Statute of Limitations, by seven years’ possession and payment of taxes, manifestly fails. She was in the possession of the premises under Daniel D. Ferbrache, as we find, and was left by him in such possession under him. While holding such possession under him she could acquire no adverse title against him by reason of her actual possession and payment of taxes.

Our conclusion is, that the court below erred in its "finding in favor of Peter A. Ferbrache and decree of relief to him, and also in refusing the relief prayed for in the cross-bill of plaintiffs in error, and in dismissing the same. Lloyd v. Karnes, 45 Ill. 62.

The decree in the case of Peter A. Ferbrache against the heirs of Daniel D. Ferbrache will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.

Mr. Justice Scott was not present at the consideration of this case, • and took no part in its decision.