author: Per Curiam:

text:
    The Wabash, St. Louis and Pacific Railway Company v. William Hawk.

      Filed at Ottawa June 17, 1887.

    1. Masted and sebvant—who are fellow-servants, within the rule de~ termining the liability pf the master. An employe of a railway company, having the charge and control of a crew or gang of men engaged in a particular service, who are bound to obey his orders, is not a fellow-servant with such persons, in the same line of employment, within the meaning of the rule that prevents a recovery by a servant, of his master, for the negligence of a fellow-servant; and the commands of such employe, within the scope of his. authority, are to be regarded as those of the master.
    2. So where one in charge of a wrecking-train and crew of men, in removing the floor of a ear from the track, directed his men, in a grossly negligent manner, to lift it up and place sticks under the same, and then let go the same, whereby it, through such negligent management, fell upon and injured one of the men so under his direction, it was held, that the company was liable in damages to the injured servant.

      Appeal from the Appellate Court for the Second District;— •heard in that court on appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Mr. G-. B. Burnett, for the apjiellant:
    . As to the ground of complaint charged in the amended ■declaration, it is insisted by appellant, that even if appellee .was injured by reason of some act of, or an order given by, his foreman, under the evidence, said foreman and appellee were fellow-servants, engaged in the same line of employment, and for the consequences of the negligence of the former, in the respect charged, appellant is not responsible. Honner v. Railroad Co. 15 Ill. 550; Railroad Co. v. Cox, 21 id. 20; Railroad Co. v. Keefe, 47 id. 108; Railroad Co. v. Murphy, 53. id. 336; Voltz v. Railway Co. 85 id. 500; Railroad Co. v. Sykes, 96 id. 102; Railroad Co. v. Moranda, 93 id. 302; Railroad Co. v. Schuering, 4 Bradw. 533; Railway Co. v. Roy, 5 id. 82.
    A foreman in charge of a gang of men is a fellow-servant with the men working under him. Railroad Co. v. Simmons, 11 Bradw. 147; Crispen v. Babbitt, 81 N. Y. 520; Bridge Co. v. Newberry, 96 Pa. St. 246; Blake v. Railroad Co. 70 Me. 60; McDermott v. Boston, 133 Mass. 349; Kelley v. Norcross, 121 id. 508; Summersell v. Fish, 117 id. 312; O’Conner v. Robberts, 120 id. 227; Walker v. Railroad Co. 128 id. 6; Brown v. Railroad Co. 27 Minn. 162; Hofnagle v. Railroad Co. 55 N. Y. 608; Wood on Master and Servant, sec. 436
    If the act of a foreman be a neglect of one of the duties the master has impliedly contracted to perform, the latter will be liable, no matter what the rank of the foreman, or by what name he may be called, but as to all other acts the master is not liable. Wood on Master and Servant, 860, 891, 892; Crispin v. Babbitt, 81 N. Y. 520; Fike v. Railroad Co. id. 553; Slater v. Jewett, 85 id. 74.

      Mr. W. T. Ament, and Mr. A. E. Harding, for the appellee:
    It is not necessary that the power to hire, and the power to discharge for disobedience to orders, should both be united in the same person.
    Appellee and Button were fellow-servants, to a certain extent. The sixth of appellant’s instructions assumes that all servants engaged in the same department of service are fellow-servants, to such an extent as to relieve appellant from liability on account of any act of one that should cause injury to another. There is a broad distinction between servants in the same department of service, and servants in the same' department of service in the same line of employment.
   Per Curiam:

This was an action to recover for an injury received by the plaintiff, while assisting in the removal of a wreck from the defendant’s railroad track. The accident occurred near Forrest, in Livingston county, on the 14th day of April, 1882. At the time of the accident, the railroad company had a wrecking-crew at Forrest, consisting of four or five men, including the plaintiff. The crew was under the. control of one Button, who was foreman. When a wreck occurred, it was the duty of Button and his men to remove the wreck and clear the track as speedily as possible, so that the running of trains might not be delayed. The railroad company had furnished Button with an engine-and wrecking-car, supplied with ropes, chains, and block and tackle. At the time of the accident, a freight train had been thrown from the track, about one mile from Strawn. Button and his men went out to the wreck with the engine, wrecking-car and other appliances, for the purpose of removing the wreck from the track. Chapman, defendant’s road-master, with a number of section-men, was working at the south end of the wreck, while Button and his men worked at the north end. When the two came together, they found the floor of a car lying across the track, and the men were ordered to lift it over, off the track, by hand. When the floor of the car had been lifted as high as the men could raise it, a prop was put under it, and the men ordered to rest it on the prop, which they did. The men were then ordered to stand back from the floor of the car, and they all did so, but before appellee could get away, the prop slipped, the car floor fell, and caught plaintiff’s leg, which was fractured at the ankle. All of the men engaged in the work, including Chapman and his crew, were under the control of Button.

In the amended declaration, it is averred that the defendant did not use, or order to be used, the necessary machinery and appliances for the safe lifting, holding, staying and removing of said car, but carelessly, willfully and negligently neglected, failed and refused to use the same, but instead thereof, carelessly and negligently ordered and directed the use of a prop for the purpose of holding the said car at the point where lifted, which was then and there used by such order and direction, and that in consequence of said neglect and failure of the defendant to so use the said machinery and appliances, and in carelessly and negligently ordering and directing plaintiff and said other servants to lift and remove said car by their individual strength, and in the careless use of the prop, as aforesaid, the plaintiff then and there exercising all due care and caution on his part, the said car, without any warning whatever to plaintiff, fell back upon the ground, and upon the leg and foot of plaintiff, and broke and crushed the foot and ankle of plaintiff, etc.; that said agent giving the order to place the prop under the car, then and there had the power and authority to give the said orders and directions for the performance of the work, and was then and there exercising such power and authority, and then and there had full control and superintendence of said work and the details thereof.

In the circuit court, plaintiff recovered a judgment against the railroad company, which was affirmed in the Appellate Court. The defendant brings the record here, and assigns as error the giving and refusing of instructions in the circuit court.

The facts in this case upon which the questions of law are raised, are quité similar to the facts in Chicago and Alton Railroad Co. v. May, 108 Ill. 293, and the law as declared in that case, settles the real questions of law presented by this record. If the plaintiff had occupied to Button the position •of a fellow-servant in the same line of employment, he might not be entitled to recover for the injury received. But Button had the entire charge and control of the wrecking-crew; they were employed by him; they were under his command, and bound to obey his orders. Where such was the situation of the parties in the May case, it is said: “When a railway ■company confers authority upon one of its employes to take charge and control of a gang of men in carrying on some particular branch of its business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of its business, is the direct representative of the company itself, and all commands given by .him, within the scope of his authority, are, in law, the commands of the company; and the fact that he may have an immediate superior standing between him and the company, makes ng difference in this respect. * * * When he gives an order within the scope of. his authority, if not manifestly unreasonable, those under his- charge are bound to obey, at the peril of losing their situations, and such commands are, "in contemplation of law, the commands of the company, and hence it is held responsible for the consequences. ” The jury found' that the plaintiff, while in the exercise of due and proper care, was injured through the negligence of the direct representative of the defendant. That finding having been .affirmed in the Appellate Court, is conclusive here.

The ruling of the court in the instructions, conformed substantially to the law as declared in the May. case, and we perceive no ground upon which the judgment can properly be-reversed. Some of the instructions may not be technically accurate, but on the main question involved they conformed to the law as heretofore declared by this court, and the errors-committed, if any, were not of such a magnitude as to authorize a reversal of the judgment. . . ..

The judgment of the Appellate Court will be affirmed.

•Judgment affirmed.

Sheldon, C. J., dissenting.


source: Caselaw Access Project

author: Mr. Justice Soholpield

license: Public Domain

text:
    Elihu H. Henry et al. v. The Centralia and Chester Railroad Company.

      Filed at Mt. Vernon June 20, 1887.

    1. Eminent domain—of the pleadings—and trial of issues of fact. There being no rule of law or practice authorizing the filing of any kind of' answer or plea to a petition for the condemnation of land, there is no error - in compelling the land owner to proceed with the trial without disposing of a • plea of nul tiel corporation filed.
    2. Same—corporate existence of petitioner—and of evidence to the jury on that subject. In a proceeding under the statute, to assess the land owner’s • compensation for land taken for a right of way and damages to lands not taken, it is not necessary to show that the capital stock of the railway company, plaintiff, has all been subscribed,—or, in other words, to show it is a, corporation de jure. It is sufficient in this proceeding to show a corporation de facto.

    3. Evidence showing the petitioner is a de facto corporation, should not go to the jury called to estimate the compensation and damages; but if it is-sufficient to satisfy the court of the petitioner’s right to proceed, the error ■ in suffering it to go to the jury is so small and harmless as not to require a reversal.
    4. Pbactice—remarks of counsel to jury. Where the language of coun- ' sel tends to excite passion and prejudice to a degree that will probably cloud the judgment, and therefore improperly affect the verdict, the court should. prompt!)' check and rebuke him; and for a failure in this respect, a verdict in favor of the party whose counsel thus abuses his position should be set aside. But it must not be assumed that every mis-statement of law or fact will have the effect of exciting improper prejudice in the jury.
    Appeal from the County Court of Washington county; the Hon. George Verner, Judge, presiding.
    Messrs. Watts & Moore, for the appellants:
    Some proof of corporate existence is required, but should be made to the court, and not to the jury. Ward v. Railway Co. 119 Ill. 287; McAuley v. Railway Co. 83 id. 348; Allman v. Railroad Co. 88 id. 521.
    The court erred in permitting improper remarks of counsel in his closing argument to the jury. Hennis v. Vogel, 87 Ill. 244.
    There is a clear line of demarkation between matters which pertain to the. case on trial, and matters which are wholly extrinsic; and where counsel have attempted to make a ease, in their argument to the jury, which the law would not allow them to make in' their tenders of evidence, such conduct, if objected to at the time, and allowed to pass unrebuked, is ground for a new trial. Miller v. Dunlap, 22 Mo. App. 97 Marble v. Walters, 19 id. 134; Roeder v. Studt, 12 id. 566 ; Brown v. Railroad Co. 66 id. 588; State v. Lee, id. 165; State v. Barnham, 82 id. 67. See the following eases bearing on subject: School House v. Shaw, 100 Ind. 268; Rudolph v. Landwerlen, 92 id. 34; Paper Co. v. Banks, 15 Neb. 22; Hall v. Woolf, 61 Iowa, 569; Railroad Co. v. Bragonier, 13 Bradw. 467; Scripp v. Riley, 35 Mich. 371. .
    All of the following cases lay stress upon the duty of the-trial judge to interpose in such cases, whether requested to-do so or not: Forsythe v. Cothran, 61 Ga. 278; Bullock v. Smith, 15 id. 395; Doster v. Brown, 25 id. 24; Bankard v. Railroad Co. 34 Md. 197; Saunders v. Baxter, 6 Heisk. 369 ; Bell v. People, 14 Ill. 432; Jenkyns v. Ore Co. 65 N. C. 563; Devries v. Haywood, 63 id. 53.

      The failure of the court to rebuke the counsel must produce the impression on the jury that the sanction of the court is given to the statements objected to. Ritter v. First Nat. Bank, 87 Mo. 574; State v. Rothschild, 68 id. 52; State v. Lee, 66 id. 165.
    It was held, in a civil case, that the wrong done to the opposite party by such a course, in argument, is not cured by the counsel saying, when objected to, that he will-take it back. Baker v. Madison, 62 Wis. 137; Woolfe v. Minnis, 74 Ala. 386.
    In all the following eases the courts have granted new trials for such misconduct: Rolfe v. Rumford, 66 Me. 564; Life Ins. Co. v. Cheever, 36 Ohio, 201; Rickalens v. Gat, 51 Mich. 227; Martin v. Orndorff, 22 Iowa, 404.
    Mr. W. S. Fobman, and Mr. Daniel Hay, for the appellee:
    The trial court committed no error in its ruling on plea of nul tiel corporation. No pleadings are necessary in such cases. Smith v. Railroad Co. 105 Ill. 511.
    The remarks made by the attorney for petitioner, assigned ■as error under the above head, are not of such grave import as to justify a reversal of this case. They were supported by the evidence, and are proper to be in an argument. The only substantial reason that can be urged, in such cases, for reversal is, that the damages are not sufficient.
   Mr. Justice Soholpield

delivered the opinion- of the Court:

This is an appeal from a judgment in a condemnation proceeding. The appellee filed a petition to condemn land for right of way for its railroad, and the land owner thereupon filed a cross-petition for the assessment of damages to lands •not taken for right of way. A verdict was returned by the jury, assessing the compensation for land taken, and damages to land not taken, at $650. The court, after overruling = a motion for a new trial, rendered j udgment upon this verdict, and the case comes to this court by the appeal of the land •owner. Several grounds are urged for a reversal of the judgment.

First—It is contended that the court erred in compelling ¡appellant to proceed with the trial before disposing of the plea •of nul tiel corporation. But since we have held there is no rule of law or practice authorizing the filing of any kind of •an answer to a petition for condemnation of land under the Eminent Domain act, (Smith et al. v. Chicago and Western Indiana Railroad Co. 105 Ill. 511,) it is impossible that this objection, can be well taken.

Second—It is next contended that the court erred in admit"ting improper evidence. This refers to certified copies of articles of incorporation of the petitioner, and evidence of Riser thereunder; and the objection is, first, that the articles •ought not to have been admitted at all, because there was not also proof accompanying, that the full amount of stock prowided for had been subscribed; and second, that in no event should the proof have gone to the jury. The first objection is predicated upon Allman v. Havana, Rantoul and Eastern Railroad Co. 88 Ill. 521, in which it was held, that until proof of the whole amount of stock provided for is subscribed, there can be no recovery upon a subscription for stock. That decision is upon the principle that the legal existence of the corporation is the consideration of the subscription, and, therefore, until it is proved, the contract is without consideration, and can not be enforced. There must, in such cases, not only be proof of a corporation de facto, but, likewise, of a corporation dejare. Where the direct effect of the proceeding is to divest title in favor of a party claiming to be a corporation, the same rule also applies. (See Hudson v. Green Hill Seminary Corporation, 113 Ill. 618.) But this is regarded, not as a proceeding to determine titles, but merely to assess compenisation and damages; and because of the peculiar language of our statute, we have held that1 it is sufficient, in this proceeding, to show a corporation defacto. (Ward v. Minnesota and, Northwestern Railroad Co. 119 Ill. 287.) The evidence introduced was clearly sufficient for that purpose. It is true, this, evidence should not have gone to the jury; but since it was sufficient to satisfy the court of the petitioner’s corporate existence, what harm can it have done ? We can perceive none.

Third—The last objection is, that the counsel for the railroad company was permitted to make improper remarks to-the jury, over appellants’ objections. The most objectionable-remarks are these: “This railroad will benefit the public and each of us, if built. If you fix these damages too high, the-company will not pay them, and the road will not be built. We will never get railroads if they have to pay such damages, for right of 'way. ” Where the language of counsel tends to-excite passion and prejudice to a degree that will probably cloud the judgment, and therefore improperly affe.et the verdict to be rendered, it should be promptly checked by the court at the time, and the counsel rebuked, and for a failure in this regard, a verdict on behalf of the party whose counsel thus abuses his position, should be set aside. But it is not to-be assumed that every mis-statement of law or of fact will have the effect of exciting improper prejudices. The instructions of the court and the good sense of a competent jury are. a .sufficient protection against ordinary errors of statement.. and false arguments of counsel. We find nothing in this-record to induce us to believe (the jury having been correctly-instructed as to the law,) that they were excited by these rémarks to act in a way they would not otherwise have acted.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon Mr. Justice Scholeield :

text:
    George Hunt, Attorney General, et al. v. Vimeria Fowler et al.

      Filed at Ottawa June 17, 1887.

    X. WlliL—charitable bequest—certainty required as to the objects of the bounty—trustee, how to be appointed. A testatrix, after making various •specific devises and bequests, directed that all the residue of her estate, including that which might lapse for any cause, be invested or loaned, upon "the best terms to produce the largest income, and that such income be distributed, annually, “among the worthy poor of the city of LaSalle, in such manner as a court of chancery may direct: ” Held, that the residuary bequest was a valid charitable gift, and should be carried into effect by a court of ■chancery.
    2. In the case of a charitable bequest, it is immaterial how vague, indefinite ■and uncertain the objects of the testator’s bounty may be, provided there is ■a discretionary power vested in some one over its application to those objects. Nor will such a bequest fail for want of a trustee. The court will appoint, ■one, when necessary.
    3. The power conferred by the will upon the trustees to be appointed by "the court of chancery to distribute the income or charity, carries with it the incidental power to select the individuals to whom the distribution shall be made. The trustees appointed by the court will have the same power to select the recipients of the testatrix’ bounty as if appointed by her to distribute it.
    4. Charitable bequests of a public nature are favorably and liberally construed, to effectuate the intentions of the donor.
    Appeal from the Circuit Court of LaSalle county; the Hon. Dobkance Dibell, Judge, presiding.
    Mr. Geobge Hunt, Attorney General, for the appellants:
    An imperfect description of the donee will not render the •gift void, unless it is impossible to ascertain who is the object of the intended bounty. Congregational Society v. Hatch, 48 N. H. 394; Smith v. Smith, 4 Paige, 271.
    A devise to “the poor” was sustained in Attorney General v. Rance, Ambl. 422, and Legge v. Asgill, Turn. & Russ. 265. Also, a devise to the poor inhabitants of S., forever, in Attorney General v. Clarke, 1 Ambl. 422. So, a devise to the “poor pious persons, male and female, old or infirm, as the executors see fit, not omitting large and sick families-,, if of good character. ” Nash v. Morley, 5 Beav. 177.
    The courts are liberal in the construction of charitable bequests, to give effect to the intention of the testator. Burr v. Smith, 7 Vt. 241; Button v. Tract Society, 23 id. 336;, McAllister v. Hein, 46 id. 272; Clement v. Hyde, 50 id. 716; Dodge v. Williams, 46 Wis. 70.
    A devise to A and B, directing them to expend it “in the purchase and distribution of such religious books or reading: as they shall deem best, and as fast as the funds shall come-into their hands, ” was held valid, in Simpson v. Welcome, 72 Me. 496.
    It is immaterial how vague, indefinite and uncertain the objects of the bounty may be, provided there is a discretionary power vested in some one, over its application to those; objects. Missionary Society’s Appeal, 30 Pa. St. 425.
    When the founder of a public charity does not provide a¡rule or order of selection of beneficiaries, there is a necessary power of selecting, in the trustee. Dodge v. Williams, 46 Wis. 70; In re Taylor Orphan Asylum, 36 id. 534; Perry on Trusts, sec. 732.
    An estate devised to such person as the executor shall name, and no executor is appointed, the devise becomes a. nullity. Yet such devise, if expressed to be for a charity,, would be good, and the court of chancery would execute it-2 Story’s Bq. Jur. sec. 1166.
    Where a charity is so given that there can be no objects,, the court will order a new scheme to execute it. 2 Story,, sec. 1170 a.
    Charitable bequests are not void on' account of any uncertainty as to the persons or as to the objects to which they are-to be applied. 2 Story, sec. 1181.
    A charity, in a legal sense, may be more fully defined as a gift to be applied (consistently with existing laws): .for the benefit of an indefinite number of persons. Jackson v. Phillips, 14 Allen, 556.
    It is the number and indefiniteness of the objects which is the essential element of a charity. Salstonal v. Sanders, 11 Allen, 456.
    A charitable use is essentially shifting. When a trust defines the beneficiaries with certainty, it is rather private than public. Charity begins where uncertainty begins. Perry on. Trusts, sec. 687; Fontain v. Ravenal, 17 How. 369.
    Gifts have been sustained “for promoting charitable purposes.” (Waldo v. Coley, 16 Ves. 206.) “To buy bibles, and to be divided among poor pious persons.” (Attorney General v. Stepney, 10 Ves. 22.) “To be used in the education and tuition of worthy indigent females.” (Dodge v. Williams, 46 Wis. 70.) So, a gift to the poor members of the Friend’s Society. (Magill v. Brown, Bright, 347.) So, a devise “for the relief of indigent widows and orphans in the city of S.” (Jones v. Habershaw, 107 U. S. 174.) A bequest of money “to the poor of Madison county, ” the interest only to be used, held valid. Heuser v. Harris, 42 ill. 425; Prickett v. People, 88 id. 115.
    Messrs. Mayo & Widmer, for others of the appellants:
    As to the intention to revoke a disposition of a will by a codicil, and the presumption, see Earl of Rochester, 7 Ves. 348; Alexander v. Kirkpatrick, 2 Sc. & D., A. H. L. Lav. 397; In re Fleetwood v. Brewer, 15 L. R. (Ch. Div.) 594; Brant v. Wilson, 8 Cow. 56; Laughton v. Atkins, 1 Pick. 535 ; Barksdale v. Barksdale, 12 Leigh, 535.
    Where the purpose to revoke is not a distinct, independent intention, but is subservient to the purpose of making a new disposition of the property, the testator meaning to do the one only so far as he succeeds in effecting the other, then the prior disposition is not revoked if the second disposition fails, from the infirmity of the instrument, to be effected; and when, as here, the prior disposition is not expressly revoked, and the testator, in both his will and codicil, has clearly manifested his intention not to leave any of his property intestate, the presumption is, that he preferred the beneficiary, by the will, to the - heir, and, therefore, that beneficiary shall lose nothing, if the intended .beneficiary, by the codicil, can take nothing. Onions v. Tyrer, 1 P. Wms. 342; Eggleston v. Speke, 3 Mod. 259; Ex parte Earl of Rochester, supra; Limbery v. Mason, 2 Comyn, 451; Quinn v. Butler, 6 Eq. Cases, *225; Laughton v. Atkins, 1 Pick. 535; Barksdale v. Barksdale, 12 Leigh, 535; Rudy v. Ulrich, 69 Pa. St. 177; Pringle v. McPherson, 2 Beav. 713; Probate of will of Penniman, 20 Minn. 245; Wolf v. Bolinger, 62 Ill. 368; Alexander v. Kirkpatrick, supra; Kane v. Astor’s Exrs. 5 Sandf. 467.
    It is an established rule not to disturb the dispositions of a will further than is absolutely necessary to give effect to the codicil. 1 Jarman on Wills, 343; Rogers v. Rogers, 6 Heisk. 489; Holden v. Blaney, 119 Mass. 424; Kane v. Astor’s Executors, 5 Sandf. 467; Brant v. Wilson, 8 Cow. 56; Collier v. Collier, 3 Ohio St. 372; Wescott v. Cady, 5 Johns. Ch. 343; Ives v. Harris, 7 R. I. 413; Murch v. Marchant, 6 Mann. & Gr. 813.
    Messrs. Duncan, O’Connor & Gilbert, for the appellees:
    The residuary clause of the codicil is void for uncertainty as to the beneficiaries. Perry on Trusts, sec. 729.
    The term, “the worthy poor of the city of LaSalle,” is too uncertain and indefinite to enable the courts to ascertain who are the beneficiaries intended. Perry on Trusts, sec. 698; White v. Fisk, 22 Conn. 21; Bridges v. Pleasants, 4 Ired. Eq. 26; Grimes v. Harmon, 35 Ind. 198; Heiss v. Murphy, 40 Wis. 276; Buckman v. Bonsor, 23 N. Y. 298; Dashiel v. Attorney General, 5 H. &. J. 392; Urmey v. Wooden, 1 Ohio St. 160; Owens v. Missionary Society, 14 N. Y. 380.

    To enable the courts to carry into effect a charity of this character, it is necessary for the testator to appoint trustees, ••and vest them with discretion to select the beneficiaries. Perry on Trusts, sec. 719; Treat's Appeal, 30 Conn. 113; Fairfield v. Lawson, 50 id. 501; Coit v. Comstock, 51 id. 352; Goodell v. Union Association, 29 N. J. Eq. 32; DeCamp v. Dobbins, 29 id. 26; Hisketh v. Murphy, 36 id. 304; Erskine v. Whitehead, 84 Ind. 387; Miller v. Teachout, 24 Ohio St. 525; Sowers v. Cyrenius, 39 id. 29; Simpson v. Welcome, 72 Me. 496.
    The direction that the funds shall be distributed “in such manner as a court of chancery may direct, ” does not cure the ■defect arising from the failure to appoint trustees. Brown v. Yeall, 7 Ves. 50.
    The uncertainty of the bequest can not be cured by the •application of the doctrine of cy pres. Perry on Trusts, secs. 722, 727; Moore v. Moore, 4 Dana, 354; Starkweather v. Bible Society, 72 Ill. 57.
    The residuary clause of the codicil being ineffectual to pass “the property, the rest and residue of the estate goes to the .heirs-at-law. Cloyne v. Young, 2 Ves. Sr. 91; 1 Jarman on Wills, 332; Laughton v. Atkins, 1 Pick. 535; Wolf v. Bollinger, 62 Ill. 368.
    A codicil or subsequent will containing a new disposition, -or attempted disposition, of the property disposed of by the prior will, operates as a revocation, Avhen such" new disposition is invalid. Hairston v. Hairston, 30 Miss. 276; Read v. Manning, id. 308; Price v. Maxwell, 28 Pa. St. 23; Gossitt v. Weatherly, 5 Jones’ Eq. 46; Colvin v. Warford, 20 Md. 257 ; Dempsey v. Lawson, 46 L. J. 23.
    The residuary clause of the codicil converts' the residuum •of the estate into a trust fund, and the trust being invalid, "there is a resulting trust to the heirs-at-law. Williams v. Williams, 4 Seld. 548; Bane v. Wick, 19 Ohio, 328; Saylor v. Plaine, 31 Md. 158; Wright v. Hicks, 12 Ga. 155; Bender v. Dietrick, 7 W. & S. 284; Hitchcock v. Hitchcock, 35 Pa. St. 393; King v. Mitchell, 8 Pet. 348; Story’s Eq. Jur. see. 1200; Frazier v. Frazier, 2 Leigh, 642.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed by the heirs-at-law of Esther S. Chapman, deceased, against the Attorney General of the State, and the executors of the will of the decedent, to-have a certain portion of the estate left by her, declared to be-intestate, and to belong to the complainants, as heirs-at-law of the decedent.

The will, executed March 15, 1883, after making sundry bequests to various persons other than the complainants, concluded with this residuary clause: “All the residue of my estate I devise and bequeath unto the legatees hereinbefore named, in equal proportions, excepting said Oak wood Seminary and said Sylvester M. Chapman. ” Subsequently, on April 5,1885, the testatrix executed a codicil, which contained this residuary clause: “All the rest and residue of my estate, including that which may lapse for any cause, I direct to be-invested or loaned, upon the best terms possible, so as to produce the largest income, and said income to be distributed annually among the worthy poor of the city of La Salle, in such manner as a court of chancery may direct.” Executors-of the will were appointed. The decedent left both real and personal estate.

The bill alleges that the city of La Salle is situated in the town of La Salle, and includes but a small, portion of the-territory of the town, and that there is not now, nor has there ever been, in said city, any organization or association, voluntary or otherwise, for the distribution of charity to the-poor of the city, and that the municipal authorities have no duties imposed upon them to provide for the poor, and claims-that 'the residuary clause of the codicil is incapable of execution by reason of the uncertainty of the beneficiaries intended by the testator, and void, and that, in consequence, all the rest and residue of the estate, both real and personal, after the payment of the general and specific legacies, was intestate:

estate. A demurrer to the bill was interposed by the Attorney General and the executors, which was overruled by the court, whereupon the executors answered, denying the invalidity of the residuary clause of the codicil, or that it was incapable of execution, and setting up, that even if such were the case, the rest and residue of the estate must be distributed in accordance with the residuary clause of the will. Thereupon, the bill was amended by making the residuary legatees specified in the will, additional parties defendant. Subsequently, a hearing was had, upon pleadings and proofs, and a decree was entered, finding that the residuary clause of the codicil was ineffectual to dispose of the property, but that it nevertheless revoked the residuary clause of the will, and declaring that the real estate of which the testatrix died seized, belonged to the complainants, as her heirs-at-law, and directing that the rest and residue of the personal estate should be distributed to the complainants as intestate estate. From this decree, the Attorney General, the executors, and a portion of the legatees specified in the residuary clause of the will, have prosecuted this appeal.

There is, in American courts, much diversity of decision upon the subject of charitable trusts. In express private trusts there is not only a certain trustee who holds the legal estate, but there is a certain-specified cestui que trust, clearly identified, or made capable of indentification, by the terms of the instrument creating the trust. It is an essential feature of public or charitable trusts, that the beneficiaries are uncertain,—a class of persons described in some general language, often fluctuating, changing in their individual numbers, and partaking of a quasi public character. (2 Pomeroy’s Eq. Jur. sec. 1018.) In some of the States, the equitable system of distinctively charitable trusts' is not recognized, and the-courts apply only the rules applicable to express private trusts. In other States, the “Statute of Charitable Uses” of 43 Elizabetli, chap. 4, has been adopted or repealed, and thereby ■decisions have been influenced. And in other cases, local -legislation or supposed local policy, to more or less extent, ■enters into adjudications. In another, and, as believed, the larger, portion of the States, the system of charitable trusts as administered in the English court of chancery, in the exercise of its ordinary judicial power, prevails, with variation in regard to the element of certainty in the trustee and the object of the charity. A classification of the decisions in the several States will be found in 2 Perry on Trusts, sec. 748, in note, and 2 Pomeroy’s Eq. Jur. sec. 1029, and note.

The prerogative power of the Grown, exercised through the Lord Chancellor, as the representative of the king, as, where there is a gift to charity generally, without appointment of a trustee, and the bounty is devoted to some particular charity, or where there is a gift to a particular charitable purpose which can not be effectuated,. and it is applied to some other charitable use, cy pres the original purpose, is regarded not as a judicial, but a ministerial, prerogative function. This prerogative power, courts in this country do not assume to exercise.

Were this subject of charitable trusts a new question with us, there would be opened up a wide and interesting field of discussion, in order for the establishment of the proper rule in this regard. But we are saved labor in this respect, from the ground having heretofore been gone over by this court, and the rule applicable to charitable trusts having been established to be that which is administered in the court of chancery in England, in the exercise of its ordinary jurisdiction as a court of equity. This was done in the ease of Heuser v. Harris, 42 Ill. 425, and where it was recognized that the statute of 43 Elizabeth, chap. 4, had been adopted in this State.

The entire contention in this case arises upon the construction, validity and effect of this residuary clause of the codicil. It is insisted, this clause is void for uncertainty as to the • beneficiaries. This is not a bequest to charity generally, or to the poor generally, but to the worthy poor of the city of La Salle. The class here is definite—the worthy poor of the city of La Salle—but the individuals of the class to whom the bounty is to be distributed are uncertain. There is always this uncertainty as to individuals in the ease of public charities, and it is this feature of uncertainty which distinguishes public charities from private charities,—charitable trusts from private trusts; and to hold charitable gifts to be void because of such uncertainty, is to reject this whole distinctive doctrine of charitable trusts. 2 Bedfield on Wills, 544, (66.)

In the case of a charitable bequest, it is immaterial how vague, indefinite and uncertain the objects of the testator’s bounty may be, provided there is a discretionary power vested in some one, over its application to those objects. ([Domestic and Foreign Missionary Society's Appeal, 30 Pa. St. 425; Perry on Trusts, sec. 732.) It is denied that there is any such discretionary power here given, and White v. Fisk, 22 Conn. 31,- is cited in support of such denial. The bequest in that case was : “Any surplus income that may remain, to the extent of $1000 per annum, I direct to be expended by my said trustees, for the support of indigent, pious young men preparing for the ministry in New Haven.” The decision was, that the gift was void, as the objects of the benefaction were indefinite, and that no power was conferred on the trustees to make them definite by selection. This case, though meeting with seeming approval in Grimes' Exrs. v. Harmon, 35 Ind. 198, has been disapproved by other high authorities. See Perry on Trusts, secs. 713, 720, 748, note 1; 2 Redfield on Wills, (2d ed.) 541, note; Hisketh v. Murphy, 36 N. J. Eq. 304. The latter case especially speaks of White v. Fisk, as a case not likely to be followed.

In Hisketh v. Murphy, the testator’s will empowered and directed the trustees to employ the annual income of the fund “for the relief of the most deserving poor of the city of Patterson aforesaid, forever, without regard to color or sex; but no person who is known to be intemperate, lazy, immoral or undeserving, to receive any benefit from the said fund. ” It was objected that the gift could not be apjDlied to its objects, and was void, because the will did not confer upon any one the power of ascertainment of the individuals who should receive the benefit of the bequest. But the court held that the power given the trustee, by the will, to distribute the fund, carried with it, by necessary implication, the power to select the beneficiaries from the designated class, and upheld the bequest. We entirely agree with the criticism there made by Chief Justice Beasley, upon the case of White v. Fisk, that there was a mistaken assumption on the part of the court in that case that there was no power to select the objects of the charity, lodged by the testator in the trustees,—that w'hen a power is conferred on the trustees to distribute the fund to members of a class, such members having certain qualifications which can be ascertained only by the exercise of judgment and discretion, as the act of distribution can not be performed except after such ascertainment of the particular beneficiaries, the principal power to distribute the moneys carries with it the incidental and necessary power of selection. And this, upon the ordinary doctrine that when an act is authorized to be done by a trustee or other agent, every authority requisite to the doing of such act is, by intendment of law, comprised in such grant of power. See Pickering v. Shotwell, 10 Pa. St. 23, that the power in the trustee to act at discretion need not be expressly given, if it can be implied from the nature of the trust. In the later case of Erskine v. Whitehead, 84 Ind. 357, the decision in Grimes v. Harmon does not seem to be approved in its full extent.

In Heuser v. Harris, supra, the bequest of money was “to the ¡door of Madison county, ” the interest only to be used, with no appointment of a trustee. As the county court of Madison county was charged by law with the support of the paupers in the county, it was held, in that particular case, that the poor of the county were its paupers, and that the fund should be held by the county court, to be applied for the latter’s support. It is not to be the inference from that case that a charitable bequest to the poor necessarily means to paupers, and that the trust is only to he executed by somebody charged by law with the support of paupers. “A bequest in trust for the poor inhabitants of a particular place, parish or town, is a charitable trust for the poor not receiving parochial or municipal aid and relief as paupers, on the ground that the charity is for the poor and not for the rich, and if it was applied to the maintenance of those supported by the parish, town or county, it would relieve wealthy tax-payers from their taxes, and not materially aid the poor. ” Perry on Trusts, sec. 698.

It is said in 2 Kedfield on Wills, (2d ed.) 805, that some of the American cases have gone great lengths in carrying into effect the intention of the testator, when there was great indefiniteness in the objects of the trust; “that the want of a trustee, in such cases, is never any obstacle in the way of a court of equity carrying into effect any trust, and more especially one of a charitable character.”

Mr. Pomeroy, in speaking of the distinguishing features between charitable and private trusts, says, that in the case of the former, “not only may the beneficiaries be uncertain, but that even when the gift is made to no certain trustee, so that the trust, if private, would w'holly fail, a court of equity will carry the trust into effect, either by appointing a trustee, or by acting, itself, in place of a trustee.” 2 Pomeroy’s Eq„ Jur. secs. 1025, 1026. And see Brown v. Kelsey, 2 Cush. 243, and Washburn v. Sewall, 9 Metc. 280.

There can be no question of the general rule'. But it is said it does not apply in a case where there is such indefiniteness as to beneficiaries, as here. Numerous are the instances which might be cited where there was the want of a trustee, and the court executed the trust in cases of equal indefiniteness as here, as to the objects of the trust. As in McCord v. Ochiltree, 8 Blackf. 15, where the legacy was for the education of pious, indigent youths; in Bull v. Bull, 8 Conn. 47,. where the executors were to dispose of the residue of the-estate “among our brothers and sisters and their children, as-they shall judge shall be most in need of the same, this to be done according to their best discretion, ” and the executors-died, never having exercised the power nor executed the trust; in Williams v. Pearson, 38 Ala. 299, where the beneficiaries named were “all the paupers and poor children of two designated ‘beats,’ whose parents are not able to support them;”' in Howard v. American Peace Society, 49 Me. 288, where the gift was to the suffering poor of the town of Auburn. Where-a legacy is given to trustees to distribute in charity, and they all die in the lifetime of the testator, yet the legacy will be-enforced in, equity. 2 Story’s Eq. Jur. sec. 1166.

An extended collection of cases on the general subject maybe found in note to Hisketh v. Murphy, 35 N. J. Eq. 23, and in 1 Jarman on Wills, 403, in note. Mr. Perry sums up, as-the result of the principles and authorities, that a “bequest for charity generally, * * * or to the poor generally, or-to charity .generally, with no trustees appointed, will not be-carried into effect by the courts in this country. ” Perry on Trusts, sec. 729. -That “if a testator makes a general and indefinite bequest to charity, or to the poor, or to religion, and appoints no trustee, but plainly refers such appointment to the court, there would seem to be no impropriety in the court appointing a trustee, according to the plain intent of the donor, leaving such trustee to find his power in the will of the donor. But if a testator makes a vague and indefinite-gift to charity, and names no trustee, and gives no power to-the court to appoint one, there is no power in the- American courts to administer such an inchoate and imperfect gift. ’r (Id. sec. 731.) That “it is immaterial how uncertain the-beneficiaries and objects are, if the court, by a true construction of the instrument, has power to appoint trustees to-exercise the discretion or power of making the beneficiaries as certain as the nature of the trust requires them to be.” Id. sec. 732. See, also, 2 Story’s Eq. Jur. sec. 1169.

In the present case, the testatrix appoints no trustee to-distribute the fund, but expressly refers its distribution to a. court of chancery. The power of distribution, in our opinion,, carries with it the power to select the individuals to whom distribution shall be made. The trustee appointed by the-court to make the distribution will have the incidental powrer to select the beneficiaries, so that the case stands the same-as if the testatrix herself had appointed a trustee to distribute-the fund. The trustee to be appointed by the court will, in effect, be a trustee of her appointment, made through the-court of chancery.

Courts incline strongly in favor of charitable gifts,, and take special care to enforce them. As observed by Mr. Perry, (sec„ 687,) charitable bequests are said to come within that department of human affairs where the maxim, ut res magis valeat, quam pereat, has been, and should be, applied; and further, (sec. 690) that until the statute of distributions (22 Car. 2,. chap. 13,) was enacted, the ordinary was obliged to apply a. portion of every intestate estate to charity, on the ground that there was a general principle of piety and charity in every man. This shows the favor in which charity is held in the-law. There is to be the most liberal construction of the-donor’s intention, in support of a charitable donation. Charities have always received a more liberal construction than the law will allow in gifts to individuals. (2 Story’s Eq. Jur.. sec. 1165.) The charity here is not vague and indefinite,, but quite specific,—to the worthy poor of the city of LaSalle. Individuals of the class named will ever be readily found to-whom the fund may be distributed. The trust is not difficult of execution, according to the intention of the testatrix. Instead of herself naming a trustee to make the distribution of her bequest, the testatrix preferred that its distribution should be made by a court of chancery, whose peculiar province it is to effect the administration of trusts, and especially charitable trusts. There can be no doubt that the execution of the trust by such court would be to effectuate the donor’s intention,—the aim which is always sought to be accomplished.

Under the principles, and the strong current of authorities, which are properly applicable, we are fully satisfied that the bequest in question is a valid, charitable gift, and that it should be carried into effect by a court of chancery, as the testatrix expressly willed that it should be. The residuary clause of the codicil being held valid, it follows that the complainants take nothing as heirs-at-law, .and are not entitled to maintain their bill.

The decree of the circuit court will be reversed, and the cause remanded to that court with directions to dismiss the bill.

Decree reversed.

Mr. Justice Scholeield :

I do not concur in this opinion. I hold that courts of equity, in this State, exercise no prerogative powers, but, as contradistinguished therefrom, only judicial powers; that, not exercising prerogative powers, the court could not, by the act of the individual, be, and here is not, invested with a power not judicial, namely, that of selecting or designating the “worthy poor” to be the recipients of the testatrix’ bounty; and that since it has not been and could not be invested with such power, it can not appoint and invest a trustee with such power. I concede the testatrix might have invested a trustee with such power, leaving and directing the court to appoint the trustee; but that is a very different case.


author: Mr. Justice Scholfield

text:
    Jacob Johnson v. Joseph O. Glover.

      Filed at Ottawa June 17, 1887.

    1. Indorsement by payee, in blank—character of Ms undertaking. .As a general rule, the name of the payee, appearing on the back of a promis- ■ sory note, is evidence that he is indorser, and proves that he has assumed the liability of an indorser, as fully as if the agreement were written out in words.
    2. It being necessary for the payee of a note to indorse the same, in order to pass the legal title, the law will imply, from his indorsement in blank, only the special contract of indorser, and this although he may make two separate blank indorsements. He does not cease to be payee until he has parted with ' the note, by indorsement and delivery.
    3. Parol evidence—to show the contract of payee indorsing note. Parol evidence is no more admissible to vary or contradict the contract of the indorser of a promissory note, arising by operation of law from an indorsement in blank by the payee, than any other written contract. Such evidence is proper to establish a trust, or to show the circumstances under which the indorsement was made, as, whether in a transaction negotiating the note, or otherwise, or to prove fraud in obtaining the signature, but not for the purpose of showing that the parties intended a different contract than that implied by the law from their acts. The ease of Worden v. Salter, 90 111. 160, in so far as it holds differently, is overruled.
    4. Payment—what constitutes payment—taking up promissory note by ■agent of maker. If a person, on or about the maturity of a promissory note, pays the amount thereof to the holder, as the agent of the makers, or either of them, and the holder surrenders the same to such agent, this will be a payment, and such agent can not recover upon such note of the payee, as indorser.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Henry W. Magee, for the appellant:
    Parol evidence should not have been allowed to vary the blank indorsement of the payee, on the hack of the note. Beattie v. Brown, 64 Ill. 361; Mason v. Burton, 54 id. 359;

      Jones v. Albee, 70 id. 37; Skelton v. Dustin, 92 id. 52; Dietrich v. Mitchell, 43 id. 40; Boynton v. Pierce, 79 id. 146;. Schnell v. Planing Mill Co. 89 id. 582; Worden v. Salter, 90 id. 165; Wallace v. Gould, 91 id. 19; Courtney v. Hogan, 93 id. 104.
    'The legal title in the note was in the First National Bank of Ottawa, and the indorsement on the note being for collection, merely, and for no other purpose, did not transfer th& title. Best v. National Bank, 76 Ill. 610; Barker v. Prentiss, 6 Mass. 430; Edwards on Notes and Bills, sec. 203; Newman v. Ravenscroft, 67 Ill. 496; Burnap v. Cook, 32 id. 172 ; Day v. Humphrey, 79 id. 453; Caldwell v. Lawrence, 84 id. 161.
    Being overdue, was notice of its payment, and even a. bona fide holder could not hold the indorsers, when paid at - maturity. Gordon v. Warnsey, 21 Cal. 77; Gardner v. Maynard, 7 Allen, 456; 2 Daniell on Neg. Inst. sec. 1238; Shinn v. Fredericks, 56 Ill. 439; Reichert v. Koerner, 54 id. 307.
    The defendant has the right to have the judgment rendered against him in favor of legal holder, so as to bar future recovery as to the instrument. Burnap v. Cook, 32 Ill. 172.
    Payment at or after maturity, to the legal holder, extinguishes the instrument. 2 Daniell on Neg. Inst. (3d ed.) sec. 1233; Eastman v. Plummer, 32 N. H. 240; Gueing v. Patton, 51 Wis. 150; Burr v. Smith, 21 Barb. 262.
    Messrs. Jameson, Mabston & Auoeb, for the appellee:
    When the guarantor signs at the time of the giving of the-note, the consideration of the note becomes the consideration of the guaranty. 14 Ill. 237; Rich v. Hathaway, 18 id. 548;. Webster v. Cobb, 17 id. 459; Parkhurst v. Vail, 73 id. 343.
    The indebtedness of Johnson, the guarantor and payee, was a sufficient consideration for the guaranty. Judson v. Goodwin, 37 Ill. 286; Munson v. Adams, 89 id. 450; Boynton v. Pierce, 79 id. 145.

      The guaranty on a promissory note is general, and runs with the instrument, and partakes of its negotiability. Webster v. Cobb, 17 Ill. 459.
    The defendant not having filed any affidavit denying the execution of the guaranty, its execution was not in issue, under ■the pleadings. Eev. Stat. chap. 110, see. 34.
    If the name of a stranger to the note is placed on a promissory note at or before the time of its delivery to the payee, {or, in case of accommodation paper, to the first purchaser,) he is, in the absence of evidence to the contrary, presumed -to have assumed the liability of guarantor. And the liability intended to be assumed can be written over the name, and parol evidence given to establish that liability. Camden v. McCoy, 3 Scam. 437; Cushman v. Dement, 3 id. 497; Webster v. Cobb, 17 Ill. 459; Carroll v. Weld, 13 id. 682; Boynton v. Pierce, 79 id. 145; Salter v. Worden, 90 id. 160.
    The vital question in this case is this, whether, by parity ■of reasoning with the preceding cases, when the name of a payee appears on the back of a negotiable instrument twice, the contract of assignment presumed by the law being satisfied by first indorsement, the law entertains any presumption in regard to the second indorsement; and may the contract thus intended to be assumed be explained by parol testimony. We have been unable to find any case in point on this question, though the Supreme Court of our own State say in Jones v. Albee, 70 Ill. 37, “that it may be shown by parol that the note was indorsed for some special purpose. ”
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was assumpsit, by appellee, against appellant, as •guarantor of a promissory note executed by Nelson & Bullen to appellant, on the 6th of March, 1883, payable to appellant ninety days after date, for the sum of $1500. Some time •after the execution of the note, and before it was due, appellant sold it to Lawrence Carton, at a discount, and then wrote his name across the back of the note, twice,—the one signa- ■ ture above the other, with a slight 'space intervening. Carton afterwards sold the note, at a discount, to the First National Bank of Ottawa, and that bank subsequently sent it to the Union National Bank of Chicago for collection.

Evidence was offered on the trial, and admitted over appellant’s objection, that appellant, at the time he sold the 'note to Carton, agreed to guaranty it, and, for that purpose, wrote his name across the back of the note, twice. We think this evidence was improperly admitted. The general rule is, that the name of the payee appearing on the back of the instrument is evidence that he is indorser, and proves that he-has assumed the liability of an indorser, as fully as if the-agreement were -written out in words. (Mason v. Burton, 54 Ill. 349; Beattie v. Browne, 64 id. 360; Courtney et al. v. Hogan, 93.id. 101.) Parol evidence is no more admissible to contradict or vary this contract than any other written contract. Such evidence is, of course, admissible to establish a trust, to show the circumstances under which the indorse- • ment wras made,—whether in a transaction negotiating the instrument, or otherwise,—or to prove fraud in obtaining the-signature, etc. (Jones v. Albee, 70 Ill. 34.) But it is inad- • missible to show that -the parties intended a different contract. than that implied by the law from their acts. (Courtney v. Hogan, and other authorities cited supra.) Worden v. Salter, 90 Ill. 160, which asserts a contrary rule, has not been followed in subsequent cases, and is now expressly overruled.

But it is contended, there being two signatures, the law raises a different presumption as to each. No authority is. cited for this contention, and, in our opinion, it is not supported by reason. It is necessary that the payee shall indorse ■ the nóte to transfer it and. vest the legal title in the assignee. But (at least until after it has passed into the hands of the - assignee, and beytind the control of the payee,) his relations to the note are only those of payee, and the law implies no ■ contract from his indorsement, but that of indorser. True, from the indorsement of a stranger, the law implies the contract of guarantor; but merely writing the payee’s name once across the back of the note, did not make him a stranger to it. He was still the payee when he wrote his name the second time, and the assignment was not complete until the note was delivered to the assignee. The law. implied one contract by the indorsement of the payee. If the payee and assignee intended to add another and different one, it should have been written out.

Appellant contended that the note was paid, after maturity, to the Union National Bank, while appellee contended that he purchased it in good faith, without notice, before maturity. There was conflict in the evidence in this respect. Appellant asked the court to instruct the jury as follows:

“The court instructs the jury, for the defendant, Johnson, that if you believe, from the evidence, that the plaintiff, J. 0. Glover, about the 7th of June, 1883, paid the amount of the note in controversy to the holder of the same, as the agent of Bullen & Nelson, or either of them, and that the holder of the said note surrendered the same then to the said Glover, as such agent, then and in that case that would be a payment of said note, and you will find for the defendant, Johnson.”

But the court refused. We think the instruction should have been given. The same idea is not repeated in other instructions, and appellant was entitled to have it given to the jury. Another instruction was asked, embodying the same principle in more general terms, but the court modified it, and, through haste and inadvertence in interlining, left the language so ambiguous that we can not say the jury could have derived the same idea from it.

The judgments of the Appellate and Superior Courts are reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Soholfield

text:
    Ira McCord v. Eugene S. Pike et al.

      Filed at Ottawa June 17, 1887.

    1. Parties—right of tax-payer to interpose to prevent the wasting of public property or misappropriation of public funds. If an unjust and illegal burden is attempted to be imposed on the tax-payers by county authorities, or the money or property of the county, to replace which taxes must be levied, is being wasted or squandered, any tax-payer will have such a direct interest as will authorize him to maintain a bill to enjoin the threatened burden or illegal act. - There is nothing in Chicago v. Union Building Association, 102 111. 379, contrary to this rule.
    2. Counties —mode of conveying real estate—powers and duties of the county authorities in respect to the disposition of public proper ty. A county board, under the statute, may authorize any officer or member to execute and deliver all deeds, etc., necessary in selling real estate belonging to the county; and such deeds, if made without fraud or collusion, will be binding upon the county.
    3. If a county board attempts to sell and convey real estate of the county for less than its value, or to accept an offer of one to purchase the same at a sum less than another offer, or less than they know can be had, such board will be guilty of a breach of trust and of a fraud, and may be enjoined from the making and delivery of the deed, at the suit of a resident tax-payer.
    4. A county board directed one of its committees to offer certain real estate of the county for sale at the best price attainable, not less than $55,000, which had been offered. A bid $50,000, and B $51,000, and O $55,000, the latter failing to accompany his bid with a check for a part of the price, but did so before the matter was closed by the board, which accepted B’s bid: Held, that a court of equity would enjoin the delivery of any deed to B on his bid, at the suit of a tax-payer.
    5. A county board has no right to give away any property or money of the county, or to dispose of its property for a sum less than its known value, or than is offered for the same.
    6. A county board, acting in respect to a ministerial matter affecting the interest of the county, can not, by a system of rules of its own making, preclude reconsideration and correction of its erroneous action, whether resulting from haste and want of consideration, or from intentional wrong.
    Writ oe Error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

      Messrs. Barnum, Bubens & Ames, for the plaintiff in error:
    A tax-payer of a municipal corporation can not maintain ■an action against the corporation and its grantee, to avoid a sale and conveyance of real estate illegally or improvidently made. The Attorney General, alone, can sue. Chicago v. Building Association, 102 Ill. 398; Roosevelt v. Draper, 7 Abb. Pr. 108; 23 N. Y. 108; Fitzgerald v. Harms, 92 Ill. 376; Davis v. Mayor, 2 Duer, 668.
    Mr. Wallace Heckman, and Mr. Sidney Smith, for the defendants in error:
    Individuals injuriously affected by illegal acts of municipal authorities may invoke a court of equity. Railroad Co. v. People, 92 Ill. 170.
    A bill by tax-paj^ers to enjoin the municipal authorities from misapplying the funds of a county, is the proper remedy: As, to enjoin unwarranted contributions to build a toll bridge—Colton v. Hanchett, 13 Ill. 615; or to enjoin a gratuitous appropriation to a judge—Perry v. Kinnear, 42 Ill. 161; or to restrain the collection of a tax imposed for the purpose ■of refunding moneys which had been previously paid by individuals to raise volunteers for the army—Drake v. Phillips, 40 Ill. 389 ; or to enjoin the illegal issuing of bonds to a railway company—Prettyman v. Supervisors, 19 Ill. 406; or to enjoin the collection of taxes for fraudulent purposes—Leitch v. Wentworth, 71 Ill. 147.
    In the case of Leitch v. Wentworth, the court hold, that “upon the point of jurisdiction the allegation of fraud in levying the tax complained of, for an unauthorized purpose, was sufficient to give the court jurisdiction. ” See, also, Fitzgerald v. Harms, 92 Ill. 372; Harding v. Railroad Co. 65 id. 90; Scholl v. Bowman, 62 id. 321; Dillon on Mun. Corp. secs. 682, 731-733; High on Injunctions, 462, 783, 784; Devine v. County Comrs. 84 Ill. 590.
   Mr. Justice Soholfield

delivered the opinion of the Court •

This was a bill in equity, exhibited in the Superior Court of Cook county, by Eugene S. Pike, John H. Dunham, and others, citizens and tax-payers of Cook count;7, on behalf of themselves and all' other tax-payers of that county, against Ira McCord and the board of county commissioners of the county of Cook, praying that the execution and delivery of a certain deed be enjoined. Answers were filed to the bill, and McCord filed a cross-bill against the board of county commissioners and the complainants, praying that specific performance of a contract to purchase the property, the execution of the deed for which was sought to be enjoined by the original bill, be decreed. Answers were filed to the cross-bill, and replications were filed to the several answers. On hearing, the court decreed that McCord’s cross-bill be dismissed, and that the board of county commissioners be perpetually enjoined from executing and delivering the deed described in the original bill. The present writ of error is prosecuted by McCord alone.

The first question to be considered is, will a bill in equity, by tax-payers, lie in a case like the present ? The contention of plaintiff in error is, that such a bill will lie only in the name of the Attorney General, or of the State’s attorney of the county, as the representative of the public. In some States, and notably in New York, this is the rule. (See Roosevelt v. Draper, 23 N. Y. 108.) But the ruling in this State is different. It is here held, that where an unjust and illegal burden is being imposed on the tax-payer by the municipality, or the money or property of the municipality, to replace which taxation must be levied, is being wasted or squandered, the tax-payer has such a direct interest that a bill to enjoin the threatened burden will lie. Colton v. Hanchett, 13 Ill. 615; Prettyman v. Supervisors, 19 id. 406 ; Perry v. Kinnear, 42 id. 160; Drake v. Phillips, 40 id. 389; Chestnutwood v. Hood, 68 id. 132; Devine v. County Commissioners, 84 id. 590; Mayor of Springfield v. Edwards, 84 id. 626; Railroad Co. v. People, 92 id. 170; Leitch v. Wentworth, 71 id. 147.

It seems to be supposed that something was said in Chicago v. Building Association, 102 Ill. 379, contrary to this rule» It is very certain that was not intended, and, we think, if the question there really under consideration be kept in view, and it be also kept in view that the language employed was with reference to that question only, it will appear that nothing there said can reasonably be held to have the effect of announcing a different rule from that sustained by the cases cited supra. The bill there was by a private property owner, to enjoin the vacating of a part of a street in a city. This property owner’s property was remote from the part of the street proposed to be vacated. It was not shown that the revenues of the city would be impaired by the vacation, or that the vacation would necessitate the opening of streets elsewhere, at the expense, in part, of this tax-payer, or that any pecuniary burden would, in any way, result to the taxpayers of the municipality in consequence of this vacation. The injury to the complainant was precisely that sustained by the entire public, in common with it, except in degree. In referring to the New York cases, and to other cases of like ruling, and in immediately afterwards quoting from Dillon on Municipal Corporations, the purpose was, simply, to show that we had, in Colton v. Hanchett, and the other cases cited from this court, gone beyond many respectable courts, and to the extreme limit fixed by any court for allowing a bill to-be filed by a tax-payer enjoining municipal action, and hence, that since that case did not fall within the doctrine of our previously decided eases, there was no ground upon which it could be rested.

The next question is, does the evidence prove sufficient of the material allegations of the bill to sustain the decree ? In our opinion it does. The property in controversy is known as block No. 2, of re-subdivision of reform school property, and belonged to the county of Cook. Section 7, of article 10, of the constitution, provides that “the county affairs of Cook county shall be managed by a board of commissioners of fifteen persons. ” Section 62, chapter 34, of the Revised Statutes of 1874, provides that the board of commissioners of Cook county shall exercise the same power as boards of supervisors in other counties. And section 16, of chapter 30, provides that “the county board may authorize any officer or member to execute and deliver all deeds, etc., necessary in selling real estate belonging to the county; and that such deeds, *' * * if made without fraud or collusion, shall be obligatory upon the county. ”

It seems that one Warfield had made a proposition to the board to give $52,000 for this property, and this was referred to a committee called the “joint committee on finance and public service. ” Thereupon, on the 24th of August, 1885, Augustus French, a real estate broker, proposed to this committee to buy the property and pay $55,000 for it. On the same day, the committee submitted the offer of French to the board, and reported, recommending that the committee be directed to offer the property for sale at thé best figures attainable, not less than $55,000, and this report was adopted. On the 19th of October, 1885, W. H. Colvin made an offer of $50,000 for the property, accompanying his offer with a check. for $50,000, and on the same day Ira McCord offered $51,000 for it, accompanying his offer with a check for $10,000. French, on the same day, made a written offer to the board of $55,000.for the property, accompanying his offer with no check.

The bill, "among other things, contains allegations “that no bids were received by said joint committee or by said board, other than those above mentioned; that neither of said bids made by others than said French, fell within the scope of .the resolution and action of said board; that each of said bids was less than the $55,000 offered by French, and the lowest price at which the same could be sold in accordance with such action; that said board, although under obligations to Cook county to obtain the highest price it' could for said property, accepted the bid of Ira McCord, although the same was $4000 less than the bid of French for said property; that said board pretended to disregard the bid of French, for the reason that no check accompanied the same, but it is alleged no check or draft was requested or required by said board; that when said board intimated a desire that checks or deposits should accompany bids for such property, French immediately produced and tendered to the board a check for $10,000, on account of said purchase, but said board proceeded to declare the property sold to Ira McCord. It is charged that the pretended sale to McCord is not bona fider but is collusive, and for the purpose of defrauding the county of Cook out of the full value of the property; that such action, and the sale of the property for $4000 less than the bid received therefor, as before stated, increases the burden of taxation upon the property of the complainants and other tax-payers of Cook county,” etc.

We do not deem it necessary to recite the facts in evidence in full,—it is sufficient that we believe these allegations to be substantially proved. French, in fact, represented Eugene S. Pike. He was ready to pay $55,000 for the property. The board knew this, yet they professed to sell it to McCord for $51,000. This was a breach of trust, and a fraud upon the tax-payers, to the amount of $4000. It was not within the discretion of the board, for the board had no authority to give away property.

It is contended; with much plausibility and force, that French held back and did not promptly file his written offer, and that when he did file it he accompanied it with no check. All this is true; yet he did, before the bids were passed upon, present his bid in writing, and when thereafter notified that a check was required, and before the hoard had adjourned its session or meeting, he presented Pike’s certified check for $10,000. This was not a sale pursuant to a-previous advertisement requiring sealed proposals,—it was a mere informal sale, in which there were no specific conditions precedent required before considering propositions. There was no necessity for haste, and even if, technically, the check should have accompanied the offer, it was but justice to require that the bonafides of the offer be investigated. No reason is disclosed why the previous resolution of the board to sell the property at a price not less than $55,000 was disregarded. ' No individual desiring to sell his own property would have acted as this board did. Before the board adjourned, the check was furnished, but counsel say it was then too late. But why too late ? No contract was signed or deed executed. The board had but resolved (if honest) under a misapprehension, and it was not too late to recall that resolution)

The following appears in evidence as a transcript of the proceedings of the board:

After some business was transacted, irrelevant to the present question, “an offer of $55,000 for block two (2) of the reform school property was read, and, on motion of Commissioner Van Pelt, action thereon was deferred until after the transaction of the routine business.” Then the transcript goes on with the routine business, and when we get to the sixth page, we find the joint committee on finance and education submitted the following:

“The chairman suggested that, as there were several bids for the property, they be read, and directed the clerk so to do.
“Commissioner McClaughrey moved that the offer of Ira McCord, of $51,000, cash, for the property, be accepted.
“Commissioner Senne protested against the consideration of propositions offering less than $55,000, as the action of the board did not authorize the receipt of bids for a less amount.
“Commissioner Van Pelt moved that action be deferred for one week. The motion was lost by the following vote:
“Yeas—Senne, Van Pelt, Wren, Och's—4.
“Nays—Hannigan, Leach, Leyden, MacDonald, Patrick McCarthy, J. J. McCarthy, McClaughrey, Niesen, Wasserman—9.
“Commissioner Leach moved the previous question. Carried by the following vote:
“Yeas—Hannigan, Leach, Leyden, MacDonald, Patrick McCarthy, J. J. McCarthy, McClaughrey, Niesen, Wasserman—9.
“Nays—Senne, Van Pelt, Ochs—3.
“After debate, the bid of Ira McCord, of $51,000, was accepted by the following vote:
“Yeas—Hannigan, Leach, Leyden, MacDonald, Patrick McCarthy, J. J. McCarthy, McClaughrey, Niesen, Van Pelt, Wasserman—10.
“Nays—Senne, Wren, Ochs—3.
“Commissioner Leyden moved a reconsideration of the vote just taken. The motion to reconsider was laid on the table.
“Commissioner Leyden moved that the county attorney be instructed to draft a deed of the property to Ira McCord, in accordance with the terms of his proposal, and that the chairman of the board be authorized to sign the same, and that it be attested by the county clerk. Carried by the following vote:
“Teas—Hannigan, Leach, Leyden, MacDonald, Patrick McCarthy, J. J. McCarthy, McClaughrey, Niesen, Van Pelt, Wasserman—10.
“Nays—Senne, Ochs, Wren—3.”

And again: “Commissioner Senne offered a check for $10,000 to guarantee the fulfillment of the proposal of Augustus French for the purchase of the reform school property, but the chair decided, that as the property was sold by previous action of the hoard, the check could not be accepted.

“On motion, board adjourned to Monday, October 26, 1885, .at 2 o’clock P. M.”

It was shown, that, by a rule of the board, any member voting with the majority, or any member absent at the time a vote was taken, might move for a reconsideration at any time before the expiration of the next meeting of the board. But even if there had been no such rule, a body acting in: respect to a purely ministerial matter, as this body was here-acting, could not, by a system of rules of its own making, preclude reconsideration and correction of its erroneous action, whether resulting from haste and want of consideration,, or from intentional wrong.

An excuse for the delay of French in closing the trade with: the committee, is found in the fact that the committee was-endeavoring to get him to assume the payment of certain liens for special assessments, amounting to a considerable sum of’ money, and not within the contemplation of his offer. But it does not follow that the action of the board of commissioners was right, even if he was negligent and careless in what he ought to have done to entitle him to a conveyance. The-question is not between French and the board,—the question is whether the board shall be allowed to sell, and McCord shall be allowed to buy, the property for $>4000 less than another party is, within the knowledge of the board, at the time willing to pay for it.

Warfield’s bid, as well as that of French, seems to have-been arbitrarily disregarded.' Trust property can not be arbitrarily or capriciously disposed of,—it must be sold for the most that it will bring in market.

McCord has no vested right to have this property on his bid. He did nothing and parted with nothing on the faith of' the claimed acceptance of his bid before the filing of the bilL

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    M. Millard v. The Board of Education.

      Filed at Mt. Vernon January 25, 1887.

    1. Schools—renting building for school purposes, as, a church building. Where it becomes necessary for a board of education to procure a. building in which to conduct a public school, they are authorized by law to-lease a suitable building for that purpose, and it matters not that such building had been used for a church by some religious body.
    2. Same—procuring a building without a role of the people. Where a. proposition to raise money to build a school house at a site selected, is defeated by a vote of the people, the board of education or directors, being-required to provide a school for at least six months in each year, may lawfully rent any suitable building or room in which such school may be kept, without any vote for that purpose.
    3. Same—non-sectarian—religious qualifications of teachers. The free-schools of this State are not established to aid any sectarian denomination, or assist in disseminating any sectarian doctrine, and no board of education or school directors have any authority to use the public funds for such a. purpose.
    4. The statute has not prescribed any religious belief as a qualification of' a teacher in the public schools, and therefore the school authorities may select, a teacher who belongs to any church or to no church, as .they may think best.
    5. Same—religious exercises in schools—sufficiency of bill to restrain. A bill to enjoin a board of education from the use of school funds for sectarian purposes, alleged that the children of Catholic parents, and the teachers, who were Catholics, were required to attend at a Catholic church, the basement of which was used for the school, at eight o’clock in the morning on. school days, and hear mass read by the priest, and then repair to the school room and engage in the study of the church catechism for half an hour before-the opening of the school, and at the close of the school at noon the “Angelus”' prayer was read by the teachers and pupils, but failed to show that the board were in any manner connected with such exercises and requirements: Held, that the bill did not show any ground of equitable relief, it not appearing that complainant had any children who were required, against his wishes) to attend or receive any religious instruction.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding..

      Mr. M. Millard, for the plaintiff in error:'
    A resident tax-payer may bring a bill to prevent an illegal ■expenditure of public funds. Chase v. Stephenson, 71 Ill. 383; Springfield v. Edwards, 84 id. 626 ; Chestnutwood v. Hood, 67 id. 132; Wright v. Bishop, 88 id. 302.
    The powers of school officers are wholly derived from the •■statute. They can not locate a school house site, etc., with•out a vote of the people. And it has been held that when a ■•school house was built on a site not fixed by the people, or when the debt incurred in purchasing the ground, or building .■a school house, was not authorized by such vote, the whole proceeding was invalid, and that no recovery could be had or tax levied to pay the same. School Directors v. Miller, 54 Ill. 338; School Directors v. Fogleman, 76 id. 189; Thatcher v. People, 93 id. 240.
    The last question is, whether a common school can be sub•ordinated to the interest of a religious congregation in such a way as to assist in the support of its church or the teaching ■of its faith,—whether this is not a violation of the principle ■of religious equality, and an enforced support of a sectarian • denomination. The constitutional guaranties against public .aid to religious sects are as follows:
    Section 3, of the Bill of Bights, provides that “the free • exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed;” and further, that “no person shall be required to attend or support .any ministry or place of worship against his consent; nor shall any preference be given by law to any religious denomi:nation or mode of worship.”
    The first section of article 8 of the constitution, requires that “the General Assembly shall provide a thorough and •efficient system of free schools, whereby all the children of .this State may receive a good common school education”— mot a religious or sectarian training. This section confines ihe system to the common branches, and necessarily excludes .all sectarian interference, and any special benefit to a partic■ular denomination is prohibited.
    There are three reasons, then, for enjoining the board of •education from maintaining the school in question: First,
    because it has no power to rent buildings for permanent .schools; second, because it has no authority to locate a ■school without a vote or petition of the people; and third, because it can not subordinate a public school to the interest -of any church.
    Mr. Charles W. Thomas, for the defendant in error:
    The fact that the building employed for the school may "have been used by a Catholic church, is wholly immaterial. 'There being no legal religious test for teachers, the directors .-are not required to employ a church member as a teacher, nor required not to employ one because of a particular religious faith.
    The attending to religious exercises before opening the public school is a mere voluntary matter, and has no relation with the school. No child of any one is required to attend mass, nor is it required by the board of education that any child shall study a catechism. This appears to have been a matter not directed or required by the board.
    The Angelus prayer, used in Roman Catholic churches, is :said by the teachers and children when school is dismissed :at noon. This is not required by any regulation of the board ■or any rules of the school. The bill itself proceeds upon the ■theory that it is wholly voluntary. No one could learn from the bill that the board knew anything about the mass or the •catechism or the prayer, or had anything to do with any of the offensive religious acts charged, except the employment •of Catholic teachers, which is not forbidden by law.
    The law requires school to be kept so many months in each year, and this can not be done without procuring a school building; and if the district has none, and fails to vote for a

      site, it follows that the board of education must lease a school, building in order to discharge their duty to the public.
   Mr. Justice Craig

delivered the opinion of the Court:

The court sustained a demurrer to the bill, and complainant electing to stand by the bill, a judgment was entered dismissing the cause at complainant’s costs. The only question, • therefore, to be considered is, whether the allegations of the-bill show grounds for equitable relief.

It is alleged that complainant is a tax-payer in a certain school district in St. Clair county; that the schools are under the control of a board of education instead of school directors;. that for the last ten years the school authorities of said district have maintained one of the schools in the basement of a church which is under the control of a congregation of Roman Catholics; that such congregation is sectarian; that during the last year, the board of education appointed, as-, teachers for such school, persons who alone were members-of such church; that the board paid the church, as rent forth e use of _ the basement, for the school year of ten months, $600; that the children of Catholic parents, and the teachers, were required to assemble at the church, on all school days, by eight o’clock A. M., and have mass said to them by the-priest of the congregation, until half-past eight o’clock; that-the teachers and pupils were then required to repair to the-school room, in the basement, and engage in religious instruction, by teaching and learning catechism, until nine A. M. that the common school exercises were then commenced, and. continued until twelve o’clock, when the Angelus prayer was-said by pupils and teachers. It is also alleged that the basement of said church was never established or located as a-school site by a vote of the people of the district, or petition of the voters, as required by statute; that the board of education threatens to and will appoint only members of said church as teachers for the ensuing year, and will pay for the use of the basement the same rent as heretofore, and will ■conduct the school therein at public expense, with the religious exercises above set forth, in the same manner as during the last year. It is also alleged, that on the 1st day of February, 1885, a school site, other than that named in the bill, was located, in pursuance of a petition of a majority of the voters of the district, and on the 10th of March, 1885, the board submitted a proposal to issue $30,000 of the bonds of the district, to the voters, with which to pay for the site, which was voted down by a majority of eighteen. The bill concludes with a prayer, as follows: “Wherefore complainant prays 'that said board of education may be summoned to answer this bill; that upon a hearing hereof, said board may be perpetually enjoined from in any manner maintaining, supporting •or conducting a public school in such church basement, or expending any of the school funds of said district for that purpose, and that in the meantime a temporary injunction issue to restrain the defendant from so doing; and that complainant may have such other relief as to equity appertains. ”

As to the first allegation,—that the schools have been maintained in the basement of a Catholic church,—no importance whatever can be attached to a fact of that character. If the district where the school was maintained had no school house, and it became necessary for the board of education to procure a building to be used for school purposes, they had the right to rent of any person who had property suitable for ■school purposes, and whether the owner of the property was a Methodist, a Presbyterian, a Roman Catholic, or any other denomination, was a matter of no moment; nor was it material that the building selected had been used as a church.

The next allegation is, that the board employed Catholic teachers in the school. The statute has not prescribed any religious belief as a qualification of a teacher in a public ■school. The school authorities may select a teacher who belongs to any church or no church, as they may think best.

The next allegation is, that children of Catholic parents, and the teachers, are required1 to attend at the church, at a-certain hour on school days, and hear mass said by the priest. Who requires this attendance is not disclosed by the bill. Whether it is the priest or church authorities, or somebody else, is left to mere conjecture. There is no intimation that the board of education requires anything of this character, and so long as they are not connected with the matter, the-allegation forms no ground of relief in favor of complainant. Besides, attending mass at the church has nothing to do-with the school or its management, and upon what ground complainant can complain, because others, in no manner-connected with him, may be required to attend mass at the-church, we can not comprehend.

Another part of this allegation is, that the teachers and. pupils are required to meet at the school room each morning,, for a half-hour before nine o’clock, and engage in religious-instruction, by teaching and learning catechism. What the-nature of this religious instruction may be, is not disclosed by the bill, nor is it claimed that it is directed, ordered or required by the board of education, or that they have anything; to do with it. Nor is it claimed that complainant’s children are required, against his will or desire, to attend any religious! or sectarian instruction in the school. Under such circumstances, we see no ground for relief, under this part of the bill.

The next allegation found in the bill is, that when school, closes at noon, each day, the “Angelus” prayer was said by pupils and teachers. It is nowhere claimed in the bill, that-this prayer is required by any regulation of the board or any rule of the school. So far as appears, it is a mere voluntary matter among teachers and scholars, which in no manner injures complainant. Had the board of education required any particular religious doctrine to be taught in the public schools,, or established any religious exercises, sectarian in character, and complainant’s children were required to receive such religious instruction in the school and conform to the sectarian exercises established, he might have good ground of complaint, as our public schools are established for the purpose of education. The free schools are institutions provided where all children of the State may receive a good common school education. The schools have not been established to aid any sectarian denomination, or assist in disseminating any secta-" rian doctrine, and no board of education or school directors have any authority to use the public funds for such a purpose..

The next and only remaining allegation of the bill, to be considered, questions the authority of the board to lease the-basement of the church for school purposes. It appears from the bill, that on the 1st day of February, 1885, the voters of' the district located a school-house site, in pursuance of the statute,- and that the board of education submitted the question of issuing bonds, in amount $30,000, to erect a school house on the site selected, to a vote of the people, and that, on the 10th day of March, 1885, the proposition was defeated by a vote of the people. Section 80, chapter 122, of the-Revised Statutes, made it the duty of the board of education to establish and support free schools, not less than six nor more than ten months in each year. What course should the board pursue ? Money to build could not be raised, because the voters had defeated the proposition. The school was required to be kept in operation. Under such circumstances no remedy was at hand except to lease, which may be done under the section of the statute last named. What-building the board should lease for school purposes is a matter for that body to determine, and not for the courts to-decide. After the building is procured, of course the school will have to be conducted in the same manner that other free schools of the State are conducted, regardless of any opinion that may be entertained by the owner of the building in re~ .gard to the propriety of any school exercises.

As no ground for equitable relief is shown in the bill, the judgment of the Appellate Court was right, and it will be affirmed. T v ^ ~ ,

T ^ , judgment affirmed.

Mr. Justioe Magruder : I do not concur in this decision.