author: Mr. Chief Justice Mulkey

text:
    James Mix v. The Illinois Central Railroad Company.

      Filed at Springfield March 27, 1886.

    1. Statutes—title of an act—expression of the subject of an act in the title. Section 13, article 4, of the constitution, requires to be expressed in the title to an act only the general subject thereof. It does not require that all the legal effects of the act, such as repeal by implication, shall be expressly stated in the title.
    2. Same—sufficiency of the title of an act relating to fencing and operating railroads. The provisions of the act of June 19,1885, entitled “An act to amend sections twelve (12) and thirteen (13) of an act entitled ‘An act •in relation to fencing and operating railroads,’ approved March 31,1874, ” are fairly covered and embraced in.the title of such act.
    3. Same—repeal of statute—effect of the amendatory act of 1885 as to stopping railway trains before crossing other railroads. The amendatory act of 1885, of sections 12 and 13 of the act relating to the fencing and operating of railroads, changing the law as to the duty of railway companies to stop their trains before crossing other railroads, etc., and the penalty for a failure to perform such duty, does not have the effect to repeal sections 2 and 4 of chapter 131 of the Revised Statutes. The amendatory act only took out of the operation of sections 12 and 13 of the amended act, all violations of those sections of the old act.
    4. Same—effect of repeal or amendment of a penal statute upon pending suits and preexisting causes of action. A private person acquires no vested right in a penalty under a penal statute, by merely suing for it, and a repeal of the statute imposing a penalty, even after suit is brought to recover it, extinguishes the right of action.
    5. In 1885 the legislature amended the statute requiring railroad trains to come to a stop before crossing another railroad, and changed the penalty and the form of action, and the time for bringing suit for violations, and provided in the amendatory act that its provisions should extend to and govern all cases of neglect or failure to stop trains as required by law, whether occurring before or after the amendment took effect, and that no act or part of an act inconsistent with such operation and effect being given to the amended act, should in any way apply thereto: Held, that the change in the law was such as to extinguish all right of action in a suit brought under the old law, notwithstanding sections 2 and 4 of chapter 131 of the Revised Statutes.

      Appeal from the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. Stephen E. Moore, for the appellant:
    Unless the act of June 19 repeals sections 2 and 4 of chapter 131 of the Eevised Statutes, the court is hound to construe the new law so as not to repeal the former law, “as to any offence committed against the former law, or as to any act done or any penalty incurred.”
    It is evident the legislature did not intend to affect any part of sections 2 and 4 of chapter 131. By its terms it is limited to amend sections 12 and 13 of the act relating to fencing and operating railroads.
    The law does not favor repeals by implication. If two acts are seemingly repugnant, they should be so construed, if possible, that both may stand. Bruce v. Schuyler, 4 Gilm. 221; Town of Ottawa v. LaSalle County, 12 Ill. 339; Supervisors v. Campbell, 42 id. 490 ; Covington v. East St. Louis, 78 id. 549 ; Gunnarssohn v. City of Sterling, 92 id. 571; Roth v. Eppy, 80 id. 283; Bowen v. Leone, 5 Hill, 231; Kinney v. Mallory, 3 Ala. 626.
    If it is held that by the terms of the act of July 19,1885, sections 2 and 4 of chapter 131 are repealed, the act is repugnant to section 13, article 4, of the constitution, as embracing more than one object. People v. Wright, 70 Ill. 397; Railroad Co. v. Gregory, 15 id. 20; Supervisors v. People, 25 id. 181; Firemen’s Benevolent Association v. Lounsbury, 21 id. 511; O’Leary v. Cook County, 28 id. 534; Village of Lockport v. Gaylord, 61 id. 276; Middleport v. Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471; People v. Miller, 32 id. 181.
    Section 22, article 4, of the constitution, prohibits the passage of special laws in certain cases, among which is “remitting fines, penalties or forfeitures.” Devine v. Commissioners, 84 Ill. 590; Railroad Co. v. Gregory, 15 id. 28.

      I do not see any principle whereby to sustain the judgment of the court below. Where a suit abates on an issue of law, the defendant is, not entitled to costs, but each party must pay his own. Tidd’s Prac. (2d Am. ed.) 693; 1 Chitty’s Pl. 405; Eddy v. Brady, 16 Ill. 306; Motherell v. Reavers, 2 Gilm. 691
    Messrs. C. H. & C. B. Wood, for the appellee:
    There can be no doubt of the power of the legislature, by a general law, to release penalties that have accrued at any time before judgment. Coles v. County of Madison, Breese, 115 ; Parmalee v. Lawrence, 48 Ill. 331; Eaton v. Graham, 11 id. 619; Confiscation Cases, 7 Wall. 454; Lewis v. Foster, 1 N. H. 61; Commonwealth v. Kimball, 21 Pick. 373; Oriental Bank v. Freeze, 6 Shep. (Me.) 109.
    The effect of • a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, except as to actions or suits which were commenced, prosecuted and concluded while it was an existing law. Wilson v. Railroad Co. 64 Ill. 547; Van Inwagen v. City of Chicago, 61 id. 34; Ray v. Goodwin, 4 M. & P. 341.
    A person suing qui tarn has no vested title in a penalty, until he, by a recovery, reduces the claim to a judgment. Railroad Co. v. Adler, 56 Ill. 345.
    It is claimed that the act of 1885 is obnoxious to the constitutional objection of embracing more than one subject,— that this act, if valid, repeals sections 2 and 4, of chapter 131, of the Revised Statutes, and this not being named in the title of the new act, it is void.
    The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject, and therefore a repealing section in the new statute is valid, notwithstanding the title is silent upon that subject. Cooley’s Const. Lim. 177; Galbert v. Railroad Co. 11 Ind. 365 ; Gillford v. Cornell, 18 Barb. 640.

      But the new statute, without attempting to repeal any part of chapter 131, takes this case out of the operation of that act.
    A statute embraces but one subject when it has but one general object which is fairly indicated by its title. Fuller v. People, 92 Ill. 182.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 2d day of October, 1884, the appellant, James Mix, commenced an action of debt, in the circuit court of Ford county, against the Illinois Central Bailroad Company, to recover divers penalties alleged to have been incurred by the defendant at various times in crossing the Lake Erie and Western railway at the town of Paxton, in said county, without first bringing its trains to a full stop, as required by the act of March 31,1874, entitled “An act in relation to fencing and operating railroads.” By the 12th section of that act all trains upon any railroad crossing or intersecting another railroad were required to be brought to a full stop at a distance of not less than two hundred feet, nor more than eight hundred from the point of intersection or crossing. By the 13th section a penalty of $200 was imposed upon railroad companies for each violation of the 12th section:

Subsequent to the commencement of this suit, the legislature passed an amendatory act, entitled “An act to amend sections twelve (12) and thirteen (13) of an act entitled ‘An act in relation to fencing and operating railroads,’ approved March 31,1874.” By this amendatory act, the 12th section of the original act is so changed as to require moving trains to come to a full stop at some point within eight hundred feet of the place of crossing, whereas they were required by the original section to come to a full stop at some point within the eight hundred feet, not less than two hundred feet from the crossing. The 13th section is also so amended as to impose a penalty of not exceeding $200, when by the section as originally adopted, the penalty could not in any case be less than $200.

But this is not all. The act as now amended confers no authority upon a private person to bring an action under it in his own name, as did the former act. Nor can an action be now prosecuted in the name of the People, for the benefit of a private person. Under the law, as amended, an action in these cases can be maintained in the name of the People only, and in case of recovery the penalty is required in all cases to be paid into the county treasury. Before the amendment, an action might have been brought, under the act, in the name of the People, or in the name of a private person, and, in the event of a recovery in the latter case, the penalty belonged to the person suing. In addition to this, the 13 th section, as amended, after shortening the period of limitation in which actions under the act must be brought, to sixty days, contains the following provision: “The provisions of this and of the preceding section shall extend to and govern all cases of neglect or failure to stop the train, required by law, before passing any bridge'or railroad crossing, whether occurring before or after the said provisions shall take effect; and no act or part of an act inconsistent with such operation and effect being given to this law, shall in any way apply thereto. ”

After this amendment of the law went into effect, to-wit, on the 1st of December, 1SS5, the defendant, proceeding upon ,, the hypothesis that the law under which the action had been brought was so radically changed by the amendments and alterations mentioned as to abrogate and extinguish all right of action in the .plaintiff, entered a formal motion in the cause to dismiss the suit. The court sustained the motion and entered an order accordingly, and the question now to be determined is, whether the court ruled properly in doing so.

The position of counsel for appellant, as we understand it, is, that to give the amendatory act of 1885 a retrospective operation, so as to govern the rights of the parties in the present case, would necessarily repeal sections 2 and 4 of chapter 131 of the Eevised Statutes, which are as follows:

“Sec. 2. The provisions of any statute, so far as they are the same as those of any other statute, shall be construed as a continuation of such prior provisions, and not as a new enactment. .
“ Sec. 4. No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offence committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offence or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. * * * This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject, or in any other act.”

It is also contended that this being so, such a construction would necessarily make the amendatory act in question violative of section 13, article 4, of the constitution, because the ■repeal of those sections is not embraced in the title of the amendatory act. This position we regard as untenable. It is only the general subject of the act that is required to be expressed in the title. The subject of the title of the act under consideration was the amendment of two specified sections of another act. There is clearly no new provision in the amendatory act which does not operate as an amendment of one or the other of the two sections of the act specified in the title. It is clear, then, there has not only been a substantial but a literal compliance with the provision of the constitution referred to.

If the amendment of those sections operated as a repeal, by implication, of sections 2 and 4, chapter 131, as claimed, or if it simply took all violations of the original act out of the operation of the two sections last mentioned, the changes thus wrought by the amendatory act would in either case be simply one of the effects of the law. It is sufficient that the act passed is fairly covered by its title. The constitution does not-require that all the legal effects of an act, such as repeals by implication, should be expressly stated in the title. Such a thing would be utterly impracticable. Where the act itself is clearly embraced in the title, as is the case here, all legal consequences necessarily flowing from it will, for the purposes of this constitutional requirement, be regarded as embraced within the title also. Timm v. Harrison, 109 Ill. 593.

The claim that to give the amendatory act of 1885 a retrospective operation, so as to embrace the present case, is in effect holding that that act repeals the 2d and 4th sections of chapter 131, above cited, is clearly not warranted. The effect of the amendatory act, so far as these two sections are concerned, was" simply to take out of their operation all violations of the 12th and 13th sections of the old act. The -1st and 4th'sections in question still remain as general provisions of law, to be applied in all cases just as they were before, except where the legislature has expressed‘a contrary intent, as was clearly done in the amendatory act in question.

It is hardly necessary to say it is not competent for the legislature to limit its own legislative powers, even if it should attempt to do so. But there is clearly nothing in the legislation referred to indicating such an intention. It is well settled that a private person acquires no right to a penalty in a case like this by merely suing for it, and it is equally clear that the legislature may amend or repeal a law imposing a penalty, as well after as before suit brought to recover it. These general principles are so well settled that they require neither argument nor authority to support them.

We have no doubt of the validity and constitutionality of the amendatory act of 1885. Holding it to be valid, as we do, its legal effect was manifestly to extinguish all right in the appellant to further prosecute the suit.

It follows the circuit court ruled properly in dismissing it, and its judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    William Sharp v. Emma A. Sharp.

      Filed at Ottawa March 27, 1886.

    1. Divorce—condonation. As between husband and wife, although the latter may, by her conduct, have condoned an offence against the marital relation committed by the former, yet a repetition of the improper conduct will operate to revive the offence supposed to have been condoned. Condonation is forgiveness by the injured party, upon condition the guilty party will not repeat the offence, and is dependent on subsequent good usage and conjugal kindness.
    2. Same—extreme and repeated cruelty — what so regarded. In this case the wife instituted proceedings for a divorce upon the alleged ground of extreme and repeated cruelty. There was proof of actual personal violence on the part of the husband in only two instances, about seven years intervening. The suit was not commenced until about four years after the second offence of that character. Notwithstanding the lapse of time before the bringing of the suit, and that actual physical injury was inflicted upon, only two occasions, yet these, taken in connection with hard and unkind treatment on the part of the husband, extending over almost their entire married life,—a period of more than twenty years,—were considered as constituting “extreme and repeated cruelty,” such as to justify the granting of a divorce at the instance of the wife, as for statutory cause.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Messrs. Abbott, Oliver & Showalter, for the appellant,
    discussed the case principally as to the facts, contending that the evidence failed to show such extreme and repeated cruelty as to warrant a divorce, citing, in support of that conclusion, Von Glahn v. VonGlahn, 46 Ill. 134; Vigors v. Vigors, 15 id. 186; Turbitt v. Turbitt, 21 id. 438; Carter v. Carter, 62 id. 446 ; Embree v. Embree, 53 id. 395 ; Henderson v. Henderson, 88 id. 248.
    It is proper to eliminate the thrusting out of doors in 1872, as being analogous to a stale claim. Lorenz v. Lorenz, 93 Ill. 377.
    The separation was by her consent, and can not be claimed as a desertion. Consent may be inferred from conduct. Gray v. Gray, 15 Ala. 779; Gillinvaters v. Gillinwaters, 28 Mo. 60.
    By her conduct she purposely encouraged Sharp in his non-speaking, with the intent that it should continue long enough to ripen into ground for divorce. She can, therefore, have no relief upon that ground. Cornish v. Cornish, 23 N. J. Eq. 208; Meldowney v. Meldowney, 27 id. 328; Gillinwaters v. Gillimvaters, 28 Mo. 60.
    Messrs. Holden & Farson, for the appellee,
    after referring to and commenting upon the evidence at some length, made the following points of law:
    There may be desertion without absence. A man may desert his wife, and still live in the same house with her. Stein v. Stein, 5 Col. 55; Rie v. Rie, 34 Ark. 37; Yeatman v. Yeatman, Law Rep. 1 Prob. & Div. 489; Fellows v. Fellows, 31 Me. 342; McDermot’s Appeal, 8 Watts & Serg. 251; McGahay v. Williams, 12 Johns. 293 ; Hanberry v. Hanberry, 29 Ala. 719.
    Husband’s support during his desertion is no defence. Bailey v. Bailey, 21 Gratt. 43; Magrath v. Magrath, 103 Mass. 577.

      The reasonable cause, if any, for desertion, must be such as is of itself cause for divorce. Moss v. Moss, 2 Ired. L. 55 ; Butler v. Butler, 1 Pars. Sel. Eq. Cas. 329; Groves’ Appeal, 37 Pa. St. 443.
    Bad temper is no cause for desertion. Hanberry v. Hanberry, 29 Ala. 719.
    Acts of personal violence, acctimpanied by neglect, and a want of proper and necessary food, fuel and raiment, and a want of proper and necessary medical assistance, are extreme cruelty to a wife. It is not necessary that great physical injury shall be inflicted. Farnham v. Farnhain, 73 Ill. 497.
    Threats of physical violence are competent evidence to prove cruelty, and when they are followed or accompanied by acts of actual malicious physical violence, they serve to magnify the atrocity of the threats. Ward v. Ward, 103 Ill. 377.
    When force and violence, preceded by deliberate insult and abuse, have been once wantonly and without provocation used, the wife can hardly be considered safe. Poor v. Poor, 8 N. H. 307; Ward v. Ward, supra.

   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is for divorce, and was brought by Emma A. Sharp, in the circuit court of Cook county, against her husband, William Sharp. On the final hearing, the circuit court dismissed the bill for want of equity. Complainant removed the cause to the Appellate Court for the First District, where the decree rendered in the trial court was reversed, and the cause remanded, with specific directions to that court to enter a decree on behalf of complainant for a divorce. Defendant now brings the case to this court on appeal, and seeks a reversal of the judgment of the Appellate Court.

Two statutory grounds are alleged in the bill for divorce,— first, desertion; and second, extreme and repeated cruelty. This court is inclined to concur with the Appellate Court in its opinion, the charge of extreme and repeated cruelty is sufficiently sustained by the testimony to warrant a decree for a divorce, and for that reason it will not be necessary to consider whether defendant has been guilty of willful desertion of complainant for a period of more than two years, in the sense those terms are used in the statute.

Of the two principal acts of physical violence proved to have been inflicted by defendant on the person of complainant, one occurred in 1872 and the other in 1879, and this bill was not filed till March 8, 1883. Were this all this record contained concerning the marital relations of the parties, it might be well doubted whether these two acts of physical violence, occurring so many years apart, would constitute any just or even statutory grounds for divorce. It is the constantly occurring events in the lives of the parties prior to the first act of violence, intervening both acts, and subsequent to the last one,—many of them of little moment if unconnected with other things, and others serious in their nature,—all considered together, that constitute the body of what the statute defines as “extreme and repeated cruelty.” It is doubtless true two or more severe acts of personal violence inflicted upon the wife under a sudden impulse of passion by the .husband, might be regarded as a less outrage than slighter violence under circumstances calculated to inflict mental agony. What is “extreme and repeated cruelty, ” as those terms are employed in the statute ? Surely, it does not always consist wholly in a blow struck in anger, or other acts of physical violence. These are elements that must be found in every definition of the offence. But that is not all. This court has said in Ward v. Ward, 103 Ill. 477, it is difficult to define with precision what is and what is not extreme and repeated cruelty. And, accordingly, it was said in the-same case: “Undoubtedly, extreme and protracted suffering may be produced primarily by operating on the mind alone, and hence threats of physical violence, and false charges of adultery, maliciously made, are competent evidence to prove cruelty, (Kennedy v. Kennedy, 73 N. Y. 369,) and when they are accompanied or followed by acts of actual malicious physical violence, they serve to magnify the atrocity of the act. ” In Farnham v. Farnham, 73 Ill. 479, where two distinct acts of physical violence were inflicted upon the person of the wife, but no great physical injury was done at either time, it was said: “The jury could very properly consider the abusive language which the evidence showed he applied to her, not only in their private room but in the presence of strangers, as characterizing those acts of physical cruelty, and as giving to them a poignancy they would not otherwise have had.” So in the case being considered, it is no two or three particular acts of physical cruelty that may have been proved, that constitute the body of the charge alleged against defendant. It is his whole conduct,—what he said and what he did since their marriage down to the day of their final separation, considered in connection with acts of physical injury inflicted, that prove extreme and repeated cruelty, if proved at all. It is extremely difficult, if at all practicable, to reproduce the events transpiring in real life so as to convey to the mind any adequate idea of what they are, by any testimony that can be given. In the daily life of these parties, things have occurred,—some capable of being proved and others not,—that have produced a separation, and whether the court shall annul the bonds of matrimony that existed between them, it is evident that estrangement is permanent.

Tracing briefly the history of these parties as it appears from the testimony, it is seen that soon after their marriage, which took place in 1859, on account of some slight offence defendant angrily pushed his wife away from him. That, of course, would long since have been forgotten had it not been for subsequent events. Coming home one night from church, it is said he “slapped her roughly on the shoulder. ” In 1867 it is testified he inflicted a slight injury upon her, and at one time, she alleges, he “spit in her face.” It was in 1872 he pushed her out of the house, and at her request threw her bonnet after her, and she went off and remained for some time. Later on, in 1879, it'is proved by a number of witnesses,-.he kicked her two or three times, and otherwise ill-treated her. That was in January, 1879. Immediately after his return from Canada, in March, 1880, what may be called the silent period of their married life commenced, and continued for about two years and six months, when complainant left the home of defendant and this bill for divorce was filed.

These are the principal acts of physical cruelty complained of, and it may be admitted the evidence sufficiently sustains them, although most, if not all, of them are denied by defendant, and when he admits anything concerning them, it is in a modified form, which deprives them of their hurtful effects. There are other incidents in the conduct of defendant that characterize these acts of actual violence, and give to them a hurtful character they might not otherwise have had. -She seems to have been ever since her marriage a nervous woman, and highly sensitive to anything she considered ill-treatment. It is admitted by his counsel “his temperament is taciturn and moody, with just a tinge of the misanthrope. ” The parties are childless. Complainant is about forty-five years of age, and has complained of ill-health ever since her marriage. Defendant is about fifty-five years of age, is a trunk maker, anzd has worked industriously at his trade, by which he has accumulated a little property, but not very much. It was only by the practice of strict economy he managed to provide for the family and save something from his earnings. What he had accumulated was much reduced by the disastrous fire of 1871, in Chicago, where his property was situated. The testimony of witnesses is to the effect “he treated his wife harshly, and was always cross and stern with her. ” Many times he used most abusive language to her, and often declared he would not live with her longer. On one occasion when he was angry with her, he told her she ought “to be kicked from one end of the city to the other. ” At another time, when she was sick and confined to her room, he omitted to furnish her any attendance, and would leave her entirely alone, “leaving a piece of bread and some water on a chair” for her use. In 1866, perhaps, he left her in the street because she wanted to ride home with him in the street-car, and got angry and ran away from her. On that occasion she says he told her “he would throw himself into Lake Michigan before he would live with her any longer. ” He complained often of her medical expenses, and said he “didn’t believe in paying doctor’s bills,” and that she “ought to die and go to heaven.” On one occasion, when she had the neuralgia, she wanted the “extract of lettuce.” He took an empty bottle and pretended to get it for her, but instead of doing so he filled the bottle with foul water taken from a tub that stood outside of the house. After she had used it he said she expressed herself as much benefited by its use, and, according to his own testimony, he then told her it was not the “extract of lettuce” at all, but that it was a vile liquid, the name of which was too vulgar to he repeated. The excuse given for the deceit practiced upon her in this respect does not relieve defendant from the severest censure. No doubt the liquid was what he says it was—foul water taken from a tub, and was not as bad as he told her it was. The least that can be said of it is, it was a “practical joke,” the perpetration of which shows he is a coarse man. No one of any refined sensibilities will ever practice a “practical joke” upon or relate one concerning his friend. It ought to be remembered that anger dwells nearby where ridicule enters, and wounds the sensibilities, and his friend is either estranged or made angry by the reckless disregard of his feelings. No matter what his motive may have been, his wife had serious ground for complaint on account of the deception practiced upon her. It was very unkind, to say the least of it.

Complaint is made as to other matters of annoyance, but it would answer no good purpose to recount them further, and it will not be done other than that which shall be said further on concerning the silence observed by the parties, one to the other.

With respect to the most serious acts oí physical violence inflicted—one in 1872 and another in 1879—it is sought to palliate the conduct of defendant on the ground, on both occasions he acted under great provocation. This position is not warranted by the evidence. On neither occasion was there the slightest justification for the violence defendant inflicted upon his wife. The difficulty in June, 1872, arose concerning a slight over-payment she had made on a bill for some blinds. He had left with her an amount of-money sufficient, as he supposed, to pay the hill, but it proved to be more than the amount he had left, and she got the money somewhere and paid it. Whether she was right or wrong in the controversy, it did not afford him the slightest pretext for thrusting her out of the house, as he did, in the night-time, and allowing her to find shelter in the house of a friend. There was still less provocation for the more violent assault made upon her in 1879. Her brother-in-law wished to see her about the care of his insane wife, who was the sister of complainant. It was known to her brother-in-law that defendant did not wish to have him come to his house, and most probably it was for that reason he called on the family that resided in the upper tenement of defendant’s house, and sent a member of the family down to tell complainant he wished to see her. She went up and met her brother-in-law in the parlor, with the doors open into the other room where the family were. Soon afterwards defendant came up in a rage, and seized her brother-in-law to eject him from the house, but on being assured he would leave if defendant would release his hold on him, he let him go, and her brother-in-law then left the house. Defendant at once seized his wife in great anger and pushed her along towards the stairway leading to the lower apartments, and it was at that time the witnesses say he kicked his wife twice in a most violent manner. Defendant says he did not kick her, but, thinks it may be, in the scuffle that ensued, his knee may have struck her. Whether it was done with his foot or his knee, matters little. It was actual physical injury inflicted without the slightest provocation.

It is submitted the acts of physical cruelty proved occurred too long ago to be now made the ground of a divorce on the part of the wife. If they stood alone, and this record contained nothing else, there would be much force in the argument. But in this connection it must not be forgotten it is shown defendant subjected complainant almost constantly to many little annoyances and indignities that rendered her life most unhappy. Had this bill been brought immediately after defendant had so severely kicked his wife, in 1879, it would hardly have been insisted the evidence would not have sustained a decree for divorce on the ground of extreme and repeated cruelty. Conceding the first act of personal injury in 1872 had been condoned by the wife by subsequent cohabitation, still the subsequent repetition of the offence would have been regarded as reviving the former, and proof of both, in connection with proof of harsh and unkind treatment, would constitute “extreme and repeated cruelty,” within the statutory definition.

Stress is laid on the fact the last act of physical injury inflicted occurred more than four years before this bill was filed. If that fact is material, it is and must be because the wife, by subsequent cohabitation, condoned all acts of violence or other offences to her person. Conceding the correctness of the position taken, is she now bound by any act of condonation? Surely not. Condonation is forgiveness by the injured party upon condition the guilty party will not repeat the offence, and is dependent on future good -usage and conjugal kindness. If it were not so, this whole doctrine would be a fatal snare to all who, with honest purpose, endeavored to perform their marital obligations. (Farnham v. Farnham, 73 Ill. 497.) It is true there is no proof of personal violence since 1879, but the subsequent conduct of defendant clearly constitutes a breach of that kind of treatment implied in every act of condonation. After his return from his visit to Canada defendant never spoke to his wife but on one occasion, which will be noted further on, although they resided together under the same roof for about the period of two years and six months. On seeing him approach the house on his return after several days’ absence, she unlocked the door and let him in. He did not speak to her and she did not speak to him. She prepared all his meals for him, as usual, unless it was his breakfast. They did not eat together. For a long period of many months’ duration they preserved that silence towards each other. On one occasion during that time he thought proper to advise her not to use so much fuel. Instead of speaking to her he wrote her a letter concerning the matter. The letter was read in evidence, and he admitted it was in his handwriting. It may be, and doubtless is, true, that in the first instance both parties were to blame for the relation of self-enforced silence. In 1876 defendant went to the centennial exposition. Complainant wanted to go with him, but he did not take her. She was out of humor about it. On his return he promised her if he ever went on a visit again he would take her with him. While preparing to go on this visit to Canada, he said nothing to her about going with him, nor did he make to her any excuse why he would not take her. She also alleges he left her, at this time, without sufficient means for her support. Be that as it may, she was doubtless much wounded in her feelings because he did not invite her to go with him. It may have been for that reason she did not speak to him on his return. It matters little which one was most in fault in the first place, for it is quite evident defendant was most to blame for the long continuance of their unfriendly relations. After matters had run along this way for about five months, she says, on a Sunday evening, about bedtime, when they were in their sitting room aloné, she asked him if he intended speaking to her any more. His reply was, “he didn’t see but matters were going on well enough. ” She again repeated the question in substance, and he replied, as she says, contemptuously, “sometime,” left the room, and went to his bedroom and shut the door after him. On the 20th day of January, 1881, she wrote him a letter, and laid it on his dinner plate. After dinner it was gone, but she received no answer to it. That letter was read in evidence. In some respects it is a touching one, is kindly in spirit, and seems to manifest a sincere desire for reconciliation with her husband. Accepting her utterances as candid, the law would exact no more of her. She wrote as follows:

“Our lives together have, indeed, been very unhappy, with the exception of here and there a ray of sunshine and hope. Our future must be as you will it. I have no power to make it different. I have endeavored to live a Christian life, faulty as it may have been. I could never get near enough to your heart to understand any of its secret workings, so I have no idea at the present time what your feelings are, or what your mind may be regarding our future. I will offer no reproaches. You have a conscience that will tell you, if allowed to do so, whether you have done all that God requires of a Christian to do, and whether it has been your aim to honor Him in your life. I have no more to say. I should like to know your mind on the subject before you. I have taken this method of conveying my thoughts to you, not knowing that it would be agreeable to you to approach you in any other way. You can write or speak to me, as you think best. ”

After this appeal, it was a great wrong to the wife for the husband longer to remain silent, in comparison with which the bruises made upon her person by his hand and foot are as nothing. Although these parties resided in-the same house for two years after this letter was written, it does not appear from this record he ever addressed a single word to her either in anger or in kindness. This treatment ill accords with the duty a husband owes to his wife, and surely is not that conjugal kindness implied in every act of condonation. It is difficult to imagine anything more disagreeable and exasperating than the presence of one who, from mere sullenness, will not utter a word. The veriest solitude, where no living creature is visible, would be preferable. There is no more important right of the wife than that which secures to her in the marriage ' relation the companionship of her husband and the protection of his home. This right of companionship, so essential to all happiness, was withheld from the wife for a most unreasonable time by her husband, after she had invited - and solicited it, both verbally and by writing. It is not necessary to inquire whether defendant’s conduct in this respect amounted to willful desertion for a period of more than two years, under the provisions of the statute. It is enough that his ill-treatment of his wife in the manner the proof shows, constitutes a breach of that kindly usage which she had a right to expect from her husband, and she is not therefore barred from obtaining a divorce on the ground of extreme and repeated cruelty arising from acts done before, and although some years have since elapsed.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Magruder: I do not concur in the above opinion.


author: Mr. Justice Magruder

text:
    Madison Y. Johnson v. Freeport and Mississippi River Railway Company.

      Filed at Ottawa March 27, 1886.

      1. Eminent domain—proceedings against several owners—right to a separate trial and a separate appeal. In proceedings under the Eminent Domain act, against several land owners, each separate owner may have his damages assessed before a separate jury, and is entitled to a separate appeal from the judgment rendered on the verdict.
    2. Same—mode of reaching defects in petition. The fact that a cross-petition, under the Eminent Domain act, avers only the evidence of title, and not any actual present title in the party filing it, and is uncertain in the description of his interest in the property, may afford ground of demurrer, but not any for dismissing the same.
    3. Same—right of way is properly, not a franchise. Aright of way for a railroad is not a corporate franchise, but is property acquired in the exercise of such franchise, and if it is sought to be condemned, the party in whom the same is vested in trust, will have the right to present his claim for compensation, and be heard in support thereof.
    4. Appeal—what is a final order from which appeal lies. Where a cross-petition filed by a defendant in a proceeding to condemn under the Eminent Domain act, brings before the court and states a claim of ownership or interest not stated in the original petition, is dismissed, the order of dismissal is final as to the rights claimed under it, and an appeal lies from the order of dismissal.
    Appeal from the County Court of Jo Daviess county; the Hon. W. E. Eowley, Judge, presiding.
    Mr. Madison Y. Johnson, pro se.

    Mr. B. C. Cook, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a petition filed by appellee, in the county court of Jo Daviess county, to condemn the right of way over certain lands of various persons therein mentioned, and to condemn certain lots in Galena for depot purposes. The petition is in the usual form, and recites-that the company is organized and legally existing as a corporation under the general railroad and corporation statutes of Illinois, and that its object and purpose are to build and maintain a railroad from Free-port, in Stephenson county, to Galena, in Jo Daviess county, with a branch line to connect with the Chicago and Northwestern railway at or near Fulton, in Whiteside county. It mentions, among other pieces of property which the petitioner desires to take and appropriate, certain lots in the city of Galena owned by Ann Eliza Johnson, and alleges that her husband’s name is Madison Y. Johnson. Madison Y. Johnson was made a defendant to the original petition, and duly served with process, but he is not otherwise mentioned therein, except as the husband of Ann Eliza Johnson. He is not himself alleged to be the owner of any interest therein, independent of the interest owned by his' wife.

Accordingly, Madison Y. Johnson, appellant here, filed his cross-petition in said proceedings, setting up that the State of Illinois inaugurated a general system of internal improvements, and among other improvements undertook to construct a railroad from a point in Galena, along the line mentioned in the original petition, to Savanna, in Carroll county'; that the State established the route of said railroad along the same lands and route mentioned in the original petition, and secured from the general government, where the land had not been sold by it, the right of way, and, where the title had been acquired by individuals, had purchased and obtained the right of way from the owners of said lands, and that the said right of way, so obtained, did absolutely vest in the State “as an absolute fee in said property;” that the State made excavations, embankments, culverts, stone work, and other necessary work along said route, described in the original petition, for its railroad, for the distance between Galena and Savanna, of about twelve miles, and took possession thereof, and built and constructed and graded "the same on the line aforesaid, and expended in the construction and for right of way, in Galena and along said line, more than $200,000, when it abandoned said system of internal improvements so adopted by it, leaving said embankments, stone work, right of way and privileges so secured to it, without completing or finishing the railroad so intended and commenced under the system so adopted by it, but retaining all rights, privileges and property so acquired under said system; that the State, by an act of the legislature, incorporated the Galena and Mississippi Intersection Eailroad Company; that by the second section of said charter it is provided, amongst other things, that said corporation may appropriate to its sole use, and enter upon, take possession of, and use, all and singular, any lands, streams and materials, of any name and kind, for the location of depots, and may construct bridges, dams and embankments, spoil banks, engine' houses, and other necessary buildings to preserve and maintain and continue said railroad, and “all such lands, waters,, materials and privileges belonging to the State are hereby given to said corporation for said purposes, ” etc.; that it was further enacted, in the fifth section of said charter, that the corporation thereby created was fully authorized to consolidate with any other railroad, within the State of Illinois or elsewhere, and all the rights secured to either were thereby secured and confirmed to the consolidated company; that it was further enacted, by the sixth section of said charter, that all grants therein contained should cease and be void unless accepted by said company within ninety days after the passage of said act, it being a public act, and to be construed liberally for the purposes declared, etc.; that under said charter the company organized, subscribed stock, elected officers, and became a legal corporation, and, within the time named in its charter, certified to the Governor of the State that they accepted the charter and grants therein mentioned; that at a meeting of the directors of said company, who were the stockholders of the company, a resolution was unanimously adopted, and spread upon the records thereof, that all the interest, with all rights, privileges and advantages secured to the Galena and Mississippi Eailroad Company, under the charter granted to said company by the State, and the acceptance of the right of way, as certified to the Secretary of State, together with the charter, franchises, stock and property, and right of property of every name and kind, secured and belonging to said company, were thereby assigned unto Madison Y. Johnson, the president of said company, to be held or disposed of by him as he might deem proper for the best interests of the city; that Madison Y. Johnson made an arrangement with the Western Union Eailroad Company to construct said railroad, but before constructing the same, said last named company was absorbed by the Chicago, Milwaukee and -St. Paul Eailroad Company; that negotiations are pending to make a transfer of said interest to the Chicago, Milwaukee and St. Paul Eailroad Company. The cross-petition alleges that the‘right of way and road-bed therein described are public property, and can not be condemned, and the prayer of the cross-petition is, that the original petition may be dismissed for want of jurisdiction, so far as it seeks to condemn the right of way already mentioned, or to take the embankments, grading, curves and fills or superstructure, embraced and included in the lands and right of way mentioned in the original petition, or that the court may make such other orders in the premises as may seem just and proper under the law, etc. After arguments heard, the court below dismissed the cross-petition.

The appellee has filed a motion to dismiss the appeal in this court, on the ground that the order of the court below, dismissing the cross-petition, was not a final order. We think that the order of dismissal was final, and that an appeal can be taken from it. The cross-petition sets up an interest which was not mentioned in the original petition. The proceedings under the original petition could only have reference to the lands and interests in land which were therein described. Under the statute, the appellant was obliged to file a cross-petition in order to bring to the attention of the court a claim of ownership which was not yet before the court. When, therefore, the cross-petition was dismissed, the new and additional interest which was thereby presented w'as no longer in the case,—there was no pleading under which it could be considered; hence, it follows that the dismissal of the cross-petition was a final disposition of the rights claimed under it. In proceedings under the Eminent Domain act, each separate owner may have his damages assessed before a separate jury, and so is entitled to a separate appeal from the judgment rendered on the verdict. Such, also, is the case where different persons have several and distinct interests in the same tract. (Bowman v. Venice and Carondelet Ry. Co. 102 Ill. 459.) In this very suit for condemnation two appeals have already been entertained and disposed of by this court, to-wit: Johnson v. Freeport and Mississippi River Ry. Co. 111 Ill. 413, and DeBuol v. Freeport and Mississippi River Ry. Co. id. 499.

The objections here urged by appellee to the cross-petition, that it avers only evidence of title and not any actual present title in appellant, and that it is uncertain in the description of appellant’s interest, might be very proper for consideration on demurrer to the cross-petition, when filed, but form no ground for dismissing the same on motion.

It is said that appellant, as an individual, can not be the assignee of the right of way of a railroad company,—that it is a corporate franchise. We do not understand a right of way to be in itself a corporate franchise, but that it is property acquired in the exercise of such franchise.

Appellee insists, that, granting everything stated in the cross-petition, either of fact or inference, still there is nothing in the case; that the allegation and claim of the cross-petition are based upon the assumption that this right of way can not be condemned, because it would be condemning a line of railroad longitudinally, and that there is no railroad corporation complaining here. This might be answer sufficient if the petition rested alone upon denial of the right of condemnation. Appellee says further: “If it be claimed that appellant is holding this right of way for some future use of some railroad company, the answer is that it may be condemned. ” This is just what appellant is claiming. Then why may not his cross-petition be entertained to have the compensation assessed to him, if entitled to any, for the taking of the property? Although the gravamen of the cross-petition is that one railroad company can not condemn the right of way and road-bed of another railroad, and it does not specifically claim or pray for the assessment of any compensation to appellant, yet, under all the averments of the cross-petition, we think there might thereunder be made assessment to appellant of any compensation to which he might be entitled. The cross-petition avers that the petitioner files it under the eleventh section of the Eminent Domain act, wherein it is provided, “his rights shall be fully considered and determined, ” and the prayer is that the original petition be dismissed so far as it seeks to condemn the right of way mentioned in the petition, “or that the court may make such other orders in the premises as to the court may seem just and proper, under the law, ” etc. Without intimating any opinion as regards any right of appellant, either to property or to compensation, we think he should have been allowed the opportunity to make the same appear, if he could, under his cross-petition, and that it was error to dismiss the cross-petition upon motion. ■

The order of dismissal of the cross-petition will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    The Town of Bruce v. T. Lyle Dickey.

      Filed at Ottawa March 27, 1886.

    1. Supervisor of town—power to employ counsel to defend suit against his town. Suit was brought against a town in February, 1875, in the United States Court, upon coupons attached to bonds of the town, the validity of which was disputed. In the same month the supervisor of the town employed counsel to defend the suit. Upon the question as to the power of the supervisor to enter into the contract of retainer in behalf of the town, it was considered that under existing legislation the authority of the supervisor in that regard might well be implied, and especially in this case, where the contract had been fully executed, the services all performed, their benefit enjoyed, and acquiescence by the town in the contract of employment during the long period of seven years of the litigation.
    2. Ratification— by municipal corporation. A municipal corporation may ratify the unauthorized contracts of its agents or officers which are within its corporate powers. Ratification may frequently be inferred from acquiescence after knowledge of all the material facts, or from acts inconsistent with any other supposition. The same principle is applicable to corporations as to individuals.
    3. Judges acting as attorneys at daw—constitution prohibiting performance of other than judicial duties, construed. The constitutional provision that “no judge of the Supreme or circuit court shall perform any other than judicial duties to which may belong any emoluments, ” is intended to prohibit the performance of other official duties, or duties imposed by law. There is no constitutional prohibition against a judge of the Supreme or circuit court practicing law for a compensation.
    4. Attorney at daw—fees for degad services—where there is a retainer in several cases, one of which is to be tried as a test case. Where an attorney at law employed to defend in two or more suits involving the same questions, makes an agreement with plaintiff’s counsel whereby only one suit is to be tried, and the other is to abide its result, and the test case is tried alone, and decided in favor of the defence, whereupon the others are dismissed, the services of the attorney in the test case may be considered as rendered also in the other or others, and he may recover the reasonable value of his services in the case not tried in fact; and the fact that he is paid for his services in the test case will not at all impair his right of recovery in respect to the cases not actually tried.
    5. An attorney employed to defend two suits against a town, involving the validity of corporate bonds and coupons thereto attached, no fee being agreed upon, procured a stipulation that such suits should abide the result of two other suits involving the same questions, and defeated the actions by a decision in his favor in the test cases. In an action by him against the town to recover for his services, the town offered evidence that the services in the test cases were rendered under prior special contracts, and to show how much money had been paid to the plaintiff in those suits, which the. court excluded: Held, that the evidence was properly excluded.
    6. The defendant town, in such a case, might properly inquire what w'ould be a reasonable compensation to the plaintiff in all the cases taken together, or what would be a reasonable compensation to be allowed in the cases against the town, in view of their connection with the other cases, and of the plaintiff’s employment in them all; and this was as far as the defendant might go, except if it was shown what would have been a reasonable compensation in all the cases, it might then be proper to show what he had received in any of the cases.
    7. Same—taking into consideration the whole amount to be affected by the litigation. In a suit against a town by an attorney, to recover a fee for defending two suits brought upon coupons attached to town bonds, the validity of which was questioned, it was held proper to allow witnesses and the jury to take into consideration the whole amount of bonds issued by the town, and the interest thereon, in testifying and determining the reasonableness of the fee charged.
    8. Same—evidence as to limitation of amount of fee. If an attorney, in a negotiation for his retainer to defend certain suits against a town, tells the supervisor that he can not fix any definite fee for his services, but that he thinks it will not exceed $300, whereupon he is retained, and never afterward gives any notice that he will have to charge a greater fee than such sum, the defendant, in an action to recover a much larger fee, will have the right to base instructions upon such statement of the plaintiff; and it will be error to modify or limit such instructions, so as to deprive them of their true and proper force. In such case, an instruction based upon the idea that a fee was fixed, is erroneous, for want of evidence upon which to base it, the evidence being only that it was limited.
    9. Same—evidence as to the right-fulness of the defence interposed, as affecting the question of attorney’s fee. In an action by an attorney to recover a fee for defending two suits against the defendant, a town, on the question of the reasonableness of the fee charged, a witness in his deposition testified that the amounts in the cases were large, the question of law intricate, if not new, and required a high order of legal attainment; that the defence, in the language of Judge D., "was the most inequitable ever interposed in a court of justice;” that the result was the successful repudiation of a just debt of the town, and that he thought ten per cent of the amount thus repudiated was a fair compensation for the plaintiff, “since there must have been in that service a considerable strain upon his conscience:” Held, that this evidence should have been excluded as wholly incompetent and improper.

      Appeal from the Circuit Court of La Salle county; the Hon. Josiah McRoberts, Judge, presiding.
    Messrs. Mayo & Widmer, for the appellant:
    The supervisor, without authority from the electors of his town, had no authority by law to employ counsel to defend the suits. Section 3, article 4, of the Township Organization law of 1874, declares that “the electors present at the annual town meeting shall have power * * * to provide for the institution, defence, ” etc., of suits, etc. The vesting of this power in one body, by implication excludes all other bodies or functionaries. Gaddis v. Richland County, 92 Ill. 119; Town of Mt. Vernon v. Patton, 94 id. 65.
    The- greater part of' the' services' for which a recovery is sought, was performed after Judge Dickey was elected judge of the Supreme Court. The constitutional prohibition (art. 6, sec. 16,) against the performance of any other than judicial duties, will prevent a recovery. Village of Dwight v. Palmer, 74 Ill. 275; Health Association Co. v. Rosenthal, 55 id. 85; Railroad Co. v. Larned, 26 id. 218; 2 Kent’s Com. (11th ed.) 466; Chitty on Contracts, (8th Am. ed.) 569.
    The town could not be liable for services performed in the other cases. There was'nothing done in them that would not have been done if the plaintiff had not been retained for the defendant town.
    As to the measure of compensation, and proof of the value of the services, see Haish v. Payson, 107 Ill. 365; Eggleston v. Boardman, 37 Mich. 18; Robbins v. Harvey, 5 Conn. 341.
    It can not be said the question of the existence of a special contract limiting the amount of plaintiff’s compensation, was fairly submitted to the jury. The error in the instructions in this respect was not cured by those given for the defendant. Railroad Co. v. Rector, 104 Ill. 296; Railroad Co. v. Moffit, 67 id. 431; Pennsylvania Co. v. Stoelke, 104 id. 201; Linen Co. v. Hough, 91 id. 63; Railroad Co. v. Dimmick, 96 id. 42;
      Moore v. Wright, 90 id. 470; Cushman v. Cogswell, 86 id. 62; Evans v. George, 80 id. 51; Provision Co. v. Tilton, 87 id. 547.
    Messrs. Duncan & O’Connor, Messrs. Monroe & Tewkesbury, and Mr. J. W. Duncan, for the appellee:
    The question of the authority of the supervisor to employ the plaintiff, is raised in this court for the first time. The objection comes too late. But the supervisor had authority by law to bind his town in that respect. Cooper v. Delavan, 61 Ill. 96.
    A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the corporate powers. Dillon on Mun. Corp. sec. 385.
    They are liable upon their implied contracts. Gas Co. v. San Francisco, 9 Cal. 453; People v. Swift, 31 id. 26; Howe v. Keller, 27 Conn. 538; Peterson v. Mayor, 17 N. Y. 449.
    The clause of the constitution referred to does not prohibit a judge of the circuit or Supreme court from transacting other than judicial business, and receiving compensation therefor. This provision means that he shall not perform official duties, other than judicial, to which emoluments are attached. Bouvier’s Law Die. word “Emolument; ” Const. 1870, sec. 17, art. 5; sec. 25, art. 5; sec. 24, art. 25; Rev. Stat. sec. 10, chap. 13; National Bank v. Mathews, 8 Otto, 621; Hall v. Hamilton, 74 Ill. 442.
    The question whether appellant shall be required to pay appellee for’ services performed in the test cases, does not arise under the facts of this case.
    The measure of compensation adopted was proper and right.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought by T. Lyle Dickey, against the town of Bruce, to recover for professional services as an attorney at law.

The leading facts appearing are, that about the year 1870, various towns along the line of the Ottawa, Oswego and Fox Biver Valley railroad, and the county of Kendall, had issued their bonds to aid in the construction of that road, aggregating some $400,000, the bonds purporting to be issued under the act of the legislature of February 18, 1857. In 1871, and afterward, the plaintiff in this suit became employed as an attorney in various suits to defeat the collection of portions of such bonds. The first suit was by Lynch and other tax-payers of the town of Ottawa, against Byan, town collector, to enjoin the collection of taxes levied to pay interest on the bonds which that town had issued, which finally resulted in a decision of this court, in November, 1873, holding the bonds invalid, for the reason that the act of February 18, 1857, was not passed by the Senate, in conformity with the constitution. (See Ryan v. Lynch, 68 Ill. 160.) A like decision was rendered in Miller v. Goodwin, 70 id. 659, in January, 1875. Two other of such suits were brought in the United States Circuit Court for the Northern District of Illinois, one by Perkins, against the town of South Ottawa, and the other'by Post, against the county of Kendall, to recover on the bonds issued by such town and county, respectively. In these two cases the United States Circuit Court held the bonds valid, and the cases were taken by writ of error to the Supreme Court of the United States, and in February, 1875, were then pending there, the records having been filed in September of 1874. The town of Bruce, the defendant here, in 1870 issued thirteen of such bonds, for $1000 each, due in 1890, with coupons attached, for $100 each, for the payment of annual interest at ten per cent. In December, 1874, one Marcey brought an action in said United States Circuit Court against the town of Bruce, to recover on six of these coupons. In February, 1875, William H. Pilcher, then supervisor of the town of Bruce, went to Ottawa to arrange with the plaintiff here to defend that suit, and did so. Thereupon plaintiff, in March, 1875, filed in the Marcey suit, pleas copied from the same pleas in the Perkins case, above mentioned, except" as to names of parties. At this time plaintiff was defending, in the United States Circuit Court, quite a number of suits against towns other than Ottawa and South Ottawa, in which the amounts involved would not permit an appeal to the United States Supreme Court, and in which he prevailed on the United States Circuit Court to allow judgments to be taken against his clients, conditioned, however, to abide the result of the decision of the United States Supreme Court in the Perkins case, then pending there. Soon after filing the pleas in this Marcey suit against the town of Bruce, such a judgment was rendered in that suit. In the spring of 1877 the Perkins judgment was reversed by the United States Supreme Court, and the case was remanded to the United States Circuit Court for a new trial, and thereupon the judgment in the Marcey suit was, on motion of plaintiff here, set aside, and an arrangement was made between him and the attorney for Marcey, that the Marcey suit should stand without trial, and should abide the result of the case of Amoskeag Bank against Ottawa, a suit brought upon such bonds issued by that town, and then pending in the United States Circuit Court. Another suit was brought by one Darned, against the town of Bruce, in September, 1881, on fourteen coupons cut from these bonds, and plaintiff here procured a like arrangement to be made, that that suit should abide the determination of the Amoskeag bank case. In the Amoskeag bank case the judgment was, in the United States Circuit Court, for the defendant, against the validity of the bonds, and in May, 1882, that judgment was affirmed by the Supreme Court of the United States. Afterwards, at the instance of plaintiff, these suits of Marcey and Darned against the town of Bruce, in the United States Circuit Court, were dismissed.

The jury rendered a verdict in the present case, of $2000 in favor of the plaintiff, on which the court entered judgment, after overruling a motion for a new trial, and the defendant took this appeal.

There are various questions raised upon this record. The alleged employment of the plaintiff was by the supervisor of the town, without any authority from the electors of the town, and it is insisted the supervisor had no power to make such employment so as to bind the town and make it liable to pay for the services rendered.

The provision of the Township Organization law is, (sec. 3, art. 4, chap. 139, Rev. Stat. 1874, p. 1072:) “The electors present at the annual town meetings shall have power * * * to provide for the institution, defence or disposition of suits at law or in equity, in all controversies between the town and any other town, or any individual or corporation, in which the town is interested. ” There is certainly no express language anywhere authorizing the supervisor to employ counsel. Section 4, article 27, of the Township Organization law of 1861, contained this provision: “And whenever any suit or legal proceeding shall he commenced, (against the town) it shall he the duty of the supervisor to attend to the defence thereof, and lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding, for their direction in regard to the defence thereof. ”

In Cooper v. Delavan, 61 Ill. 96, this court held, under that act, that authority in the supervisor to employ counsel was manifestly implied from the provision making it his duty to attend to the defence of suits against the town. But the act of 1861, relating to township organization, was expressly repealed in 1874, and in revising the law on that subject the legislature omitted that provision; and it is argued that such omission denotes the intention of the legislature to withhold from the supervisor the authority to employ counsel, which this court had held was implied from the duty imposed upon the supervisor to attend to the defence of suits against the town. We can not attach such significance to the omitting of that provision from the revised act. In the case referred to, after remarking upon the fact that cases might occur requiring immediate action in the bringing or defending of suits, and where great injury might result if the supervisor could not act and employ counsel until there had been held a town meeting to give him authority, the court observed: “These considerations, independent of the imposition of the duty of attending to the defence by the supervisor, would warrant the inference that the supervisor might employ counsel, from the mere fact that process is served on him. As the act of 1861 did, so also does the act of 1874, provide for service of process upon the supervisor in a suit against the town.” Although the above observation was not necessary to the decision of that case, we assent to and adopt it, and especially in this case, where the contract has been fully executed, the services all performed, their benefit enjoyed, and acquiescence by the town in the contract of employment during the long period of seven years of the litigation. “A municipal corporation may ratify the unauthorized contracts of its agents or officers which are within the corporate powers, but not otherwise. Ratification may frequently be inferred from acquiescence after knowledge of all the material facts, or from acts inconsistent with any other supposition. The same principle is applicable to corporations as to individuals.” (1 Dillon on Mun. Corp, sec. 385.) We hold the town bound by the contract of employment made by the supervisor.

The plaintiff was elected a judge of the Supreme Court of Illinois in December, 1875, and had ever since, to the time . of the trial, held that office. The greater part of the services for which he recovered were rendered after he became such judge. The point is made that a judge of the Supreme Court is prohibited by the constitution of this State from practicing law for compensation. In support of the position is cited section 16, of article 6, of the constitution of 1870, which, after fixing the salaries of the judges of the Supreme and circuit courts, reads as follows: “And from and after the adoption of this constitution, no judge of the Supreme or circuit court shall receive any other compensation, perquisite or benefit, in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments.” The words that “no judge of the Supreme or circuit court shall receive any other compensation, perquisite or benefit, in any form whatsoever, ” are not depended upon for the alleged inhibition, as manifestly they should not be; but it is the last clause, “nor perform any other than judicial duties to which may belong any emoluments, ” which is relied upon as containing the prohibition. These words naturally refer to official services, or to services required by law to be done, and not to work done by employment under a private contract. It is the performance of duties which is prohibited,—a term which is suggestive of office. It is duties to which belong emoluments. The word “emoluments” is peculiarly appropriate to office, denoting, in its most ordinary signification, the profit “which is annexed to the possession of office, as salary, fees and perquisites. ” And it is emoluments which belong to the performance of duties,—the word “belong" implying fixed, prescribed by some regulation,—as are the emoluments attached to office, and not something contracted to be paid by agreement between private parties. This analysis of the language of this clause shows its fitness as prohibiting the performance of any official duties, or duties imposed by law, to which uny emoluments are attached, and that it is quite inappropriate language in which to couch a prohibition to conduct a law suit, or to perform any other work than judicial duties, under a private contract for a compensation to be paid. Had it been the intention to prohibit judges.from doing any other work for pay, it could easily have been so said in plain terms, and we can not conceive that the cumbersome and inapt phraseology in question would have been used to express that purpose.

It is argued that an attorney at law is an officer of the court, that he holds an office, and that when he accepts a retainer from a party, he is under a legal obligation to do what are duties growing out of the contract entered into. To do that which is required to be done by the legal obligation of a contract entered into, may, in a sense, be called a duty, but it does not come within the class of duties contemplated by this constitutional prohibition. Neither is an attorney to be regarded as holding an office, within the purview of that prohibition. To say that an attorney at law, in the doing of any matter of legal business under private employment for a compensation agreed to be paid, is performing the duties of an office, or is performing duties to which belong emoluments, and so is brought within reach of this prohibition, is a forced construction. It is not according to the natural and obvious import of the language used.

As throwing light upon the meaning of this section 16 of the constitution of 1870, it is proper to look at the preceding constitution of 1848, and the practice thereunder. The constitution of 1848 fixed the salaries of the circuit judges at $1000 each, “and no more;” those of the Supreme judges at $1200 per year, “and no more.” That constitution also provided that judges of circuit and Supreme courts should not be “eligible to any other office or public trust of profit in this State or the United States during the term for which they are elected, nor for one year thereafter. ” However it might have been at first, afterwards, and in a changed condition of things, these salaries became a markedly inadequate remuneration, and the legislature were studious in devices to give the judges something additional in the way of compensation. In some cases docket fees were given to circuit judges. In 1869 the legislature authorized the payment “to each of the justices of the Supreme Court of this State, in addition to the amount heretofore allowed them, as clerk hire, the sum of $1200 per annum.” (Laws 1869, p. 46.) At the same sessien an act was passed 'requiring the circuit judges to note and report to the Supreme Court imperfections and omissions in the laws, and to suggest amendments, and that each judge should receive $1000 per year for such services. (Laws 1869, pp. 49, 50.) In view of all this, said section 16 was inserted in the constitution of 1870. The provision of the constitution of 1848, that the judges of the Supreme and circuit courts should not be eligible to any other office or public trust of profit, was omitted from the constitution of 1870, and in place thereof we have this section 16. It may reasonably be supposed that it was in view of and to prevent the practice which had prevailed under the constitution of 1848, to impose other duties and give additional compensation to judges of the Supreme and circuit courts, and to supply the place of the provision of that constitution making such judges ineligible, during their term, to any other office or public trust of profit, that the section in question of the constitution of 1870 was adopted, that “no judge of the Supreme or circuit court shall-receive any other compensation, perquisite or benefit, in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments.” The occasion for its adoption suggests, as the natural reading of the language used is, that the prohibition was directed against the performance of other official duties, or duties imposed by law, and not against the performance of any other labor in no way connected with duties of that character. Propriety may forbid a judge of the Supreme or circuit court from practicing law, as not being congruous with the judicial office, but we find no constitutional prohibition against it.

Evidence was given, against the objection of defendant, of the services rendered by the plaintiff in the so-called “test cases” of Perkins v. South Ottawa and Amoskeag Bank v. Ottawa, and complaint is made that under the rulings of the court below the defendant was held liable to pay for services performed in those cases. The question was raised in various forms, of which one was the giving of the third instruction for the plaintiff, that if, in rendering the services he did for the defendant, the plaintiff, by the same acts, was rendering services for other towns or municipalities which were interested in the same questions, and had also employed him and were benefited by the same services, and have paid or have become liable to pay him a compensation therefor, such fact does not at all impair the right of the plaintiff to recover from the town of Bruce a reasonable compensation for the services rendered for the town of Bruce, whether the said services were rendered in suits brought against the town of Bruce, or in suits brought against other of such towns. As has been observed, the two suits against the town of Bruce were, by agreement between counsel, made to abide the decisions in the two above named test eases, all the bonds in the several cases having been issued under the supposed act of February 18, 1857, and there being but one and the same question involved in them all,—whether the act ever passed the Senate and became a law. The services were rendered mostly in the two test eases, there being no other services performed in the suits against the town of Bruce distinctively, than to file a copy of the two pleas which were in the test cases, to make the agreement that such suits should abide the result of the test cases, and to see to the order of dismissal of the cases. The plaintiff was attorney for the defendants in all the cases. We think, in the case of such an agreement that one ease shall stand without trial and abide the determination of another case to be tried, where it is the same question to be tried and the same attorney is engaged in the defence of each case, that his services in the ease which is tried may be considered as rendered also in the other case. And we are not prepared to say the rulings of the court in this case upon this subject were not correct.

There was evidence offered by the defendant, which the court excluded, to show that the services in the other cases .were rendered under prior special contracts, and to show what amounts of money had been paid to plaintiff in those cases. It is insisted there was error in this exclusion of testimony—that the offered evidence was competent as bearing upon the question of what would be a reasonable compensation to allow in the present case. A majority of the court think the evidence was rightly excluded; that as far as it was admissible to go in this respect, was to inquire as to what would be a reasonable compensation to the plaintiff in all the cases taken together, or what would be a reasonable compensation to be allowed in the present case in view of its connection with the other cases, and of the plaintiff’s employment in them all. In case of there being evidence of what would he a reasonable compensation in all the cases, taken together, in which plaintiff was employed, then it might he proper to show what he had received in any of the cases.

On behalf of the defendant, the court below gave the following instructions to the jury:
“10. If the jury believe, from the evidence, that at the time the plaintiff, Dickey, was employed by Pilcher, the supervisor of the town of Bruce, to attend to the Marcey suit, said Pilcher asked said Dickey what the expense of his, said Dickey’s, services in said suit would be, and that said Dickey told said Pilcher that he thought said expenses would not be more than $300, and that said Dickey made such statement with the purpose and the intention that said Pilcher should rely upon said statement, and employ him, said Dickey, in reliance thereupon, that said Pilcher did rely upon said statement, and employ said Dickey in reliance thereupon, then, and in such case, said Dickey can not recover more than said sum of $300 for his services in said suit.
“10J-. If the jury believe, from the -evidence, that the conversation between the plaintiff, Dickey, and Pilcher, the supervisor of the town of Bruce, at the time of the employmenfc of said Dickey, was of such a character that what was said by said Dickey was calculated and intended by said Dickey to assure said Pilcher that the charges or compensation of said Dickey for the services for which he was then employed would not exceed $300, and that said Pilcher relied upon such assurance, and in reliance thereon employed said Dickey, then and in such case the jury must find that it was agreed between said Dickey and said Pilcher that the compensation of said Dickey for the services for which he was then employed should not exceed $300, and the compensation of said Dickey for such services can not be estimated by the jury at a greater amount than $300.”

And, at the request of the plaintiff, the following qualification of the instructions was given to the jury: “As a qualification to instructions No. 10 and No. 10J, the jury are instructed that if they believe, from the evidence, that in the conversation referred to in these two instructions, Judge Dickey did not contract to limit his charges to any given amount, but merely expressed an opinion as to what the limit would be, and if the jury further believe, from the evidence, that the work that afterwards became necessary was very much greater than was expected, in such ease such condition ought not to prevent the plaintiff from recovering the full value of his services rendered for the town of Bruce, if employed to render the same.” To the giving of which qualification the defendant, by its counsel, then and there excepted.

As bearing upon the question of employment, there was the following testimony of the witness Pilcher, supervisor of the town of Bruce.

“I came over to make an arrangement with the judge to defend, in pursuance of a meeting that I called out there. I didn’t feel like I was going out of office, and I called together a few of the leading citizens, and we held a consultation, and they thought it was better for me to go and employ Judge Dickey, in case his fees would be reasonable. I came for that purpose and talked with him, and finally gave him the case.

Q. “What was said upon the subject of fees, if anything, at that time ?

A. “I asked him particularly what it would cost us. He didn’t seem to know just exactly. He said he. could hardly state, from the fact that he didn’t know just how much labor would be attached to it, but said it might be $100, .and might be more. I told him I wished to report back to the meeting there, and I would.like to know about what the expense would cost. He told me that he thought it would not exceed $300.

Q. “In view of that statement did you employ him or not ?

A. “I did so; yes, sir.”

And as to an explanation he asked to make: “The explanation I want to make is, why I remember that so distinctly was because that was my special errand over here to know how much it would cost, and I reported back not to exceed $300.”

If the instructions Nos. 10 and 10J were properly given on behalf of the defendant, as we incline to think they were, at least in the absence of any notification that the charge would be more than $300, or that the services would be greater than expected, then the qualification of them asked and given for the plaintiff was erroneous, as it_deprived the instructions "of their true and proper force, and was calculated to mislead the jury.

In this connection we remark that the second instruction given for the plaintiff, that he was “entitled to recover what his services rendered are reasonably worth,- unless a special contract was made fixing the amount to be paid therefor, ” was objectionable in the use of the word “fixing,” there being no evidence in the-case tending to show that the amount to be paid was fixed, but only that it was limited not to exceed a certain sum. We are of opinion the matter as to limitation of the charge for services was not fairly submitted to the jury by the instructions.

Exception was taken by the defendant to the refusal of the court to exclude the answer to the eighth interrogatory in the deposition of the witness Littler, which contained the following : “The amounts in these eases were large. The question of law was intricate, if not new, and required a high order of legal attainment to efficiently represent the client. The defence interposed, in the language of Judge Dbumjiond, in delivering his opinion on the first demurrer, ‘was the most inequitable ever interposed in a court of justice.’ The result in the cases was the successful repudiation of a debt justly owed by these towns, and accordingly I think ten per cent of the amount thus successfully repudiated a fair compensation for Judge Dickey, since there must have been in that service a considerable strain upon his conscience.” It is surprising, that a court should have given its deliberate sanction to the introduction of such matter in evidence before a jury. It should have been excluded.

In estimating the value of plaintiff’s services, witnesses for the plaintiff were allowed to take into consideration the whole amount of the bonds issued by the tpwn of Bruce, and the jury were instructed that it was proper for them, in determining the amount to which plaintiff was entitled, to take into consideration the whole amount of such bonds, and the amount of interest which had accumulated upon them, and it is insisted there was error in this. Although there was directly involved in the suits only the six and fourteen coupons, of $100 each, sued upon, the result of the litigation was to establish that there was no right of recovery upon any of the bonds issued by the town, and the whole series of such bonds was really involved, and the ruling of the court amounted to no more, in substance, than allowing the amount involved to be taken into consideration, which was proper. This is quite different from the ease of Haish v. Payson, 107 Ill. 365, referred to, where it was held that remote and speculative benefits which might follow from the result of a litigation, were not a proper subject for consideration.

For the errors which have been indicated, the judgment will be reversed, and the cause remanded.

Judgment reversed.