author: Mr. Chief Justice Scott

text:
    A. N. J. Crook v. The People ex rel. William Jayne.

      Filed at Springfield March 29, 1883.

    1. Municipal oobpobation—charter subject to repeal. Municipal charters are subject to repeal or amendment, at the pleasure of the legislative power granting them.
    2. Same—effect of repeal on tenure of office. The absolute and unconditional repeal of a municipal charter abolishes all offic'es under it, and the substitution of another charter with inconsistent provisions, without any saving clause as to the rights of officers under the former charter, will have the same effect.
    3. Same—no rested right in municipal office. There is no such thing as a vested right, in the strict sense of that term, in a municipal office, that places it above legislative control. The same power that creates such an office can abolish it.
    4. Cities and villages—reorganization under general law—effect on tenure of offices under special charter. The adoption of the general law of 1872 for the incorporation of cities and villages, by a city organized under a special charter, is an abrogation of the special charter, and determines the tenure of all offices under the special charter, except such as are within the saving clause of the general act.
    5. Same—what offices provided for in general law—and how others may be created. Under the general Incorporation law, provision is made for the election only of a mayor, a city council, a city clerk, a city attorney, and a city treasurer. All other offices that may be deemed necessary .or expedient for the city government must be provided for by the city council, and the officers to fill them are to be either elected by the legal voters, or appointed by the mayor, with the approval of the city council, as shall be provided by ordinance.

      6. Same—what officers hold over on adoption of general law. The “officers in office” at the time of the adoption by a city of the general incorporation act, that “shall exercise the powers conferred upon like officers” in the general law until their successors shall be elected and qualified, are those holding under the special charter that answer to the same officers provided for in the general act. All other offices are abolished eo instcmti by the adoption of the general law.
    7. Same—who are “ the city officers then in office” who may continue to exercise their powers until their successors shall be elected and qualified. The latter clause of section 3, article 1, of the general Incorporation law, providing that on the adoption of that act by a city previously under a special charter, “the city officers then in office” shall exercise the powers conferred upon like officers in the general law until their successors shall be elected and qualified, means that the city officers elected at the preceding annual election shall remain in office until their successors are elected and qualified, and not those who may have received the greatest number of votes at the same election by which the general act is adopted.
    8. On the adoption of the general Incorporation act by a city before acting under a special charter, persons receiving the greatest number of votes for the offices of mayor and aldermen at such election can not qualify as such, for the reason the charter under which such votes were cast has ceased to exist. The old charter ceases to exist at the close of the election at which the general law is adopted.
    9. Same—extending term of office, within the constitutional prohibition —under the general Incorporation law. The general Incorporation act of 1872 for cities and villages, in continuing in office the mayor and aldermen who were elected prior to the adoption of that act until their successors shall be elected and qualified, is not repugnant to section 28, article 4, of the constitution, which provides, “no law shall be passed which shall operate to extend the term of office of any public officer after his election or appointment.” While it is true such officers may have been elected for a definite time, they were also elected to hold their offices until their successors should be elected and qualified.
    10. • Same—after reorganization, duty of those “then in office” to call an election, eta. Where, at the time for the election of city officers, the voters of such city adopt the general Incorporation law, persons receiving votes for the offices of mayor and aldermen at such election will not be entitled to those offices, and it then becomes the duty of those officers “then in office” to take steps to put in operation a city government under the general law, by dividing the city into the proper number of wards, and calling a special election. Should this duty be neglected, it might be compelled by mandamus.

    11. Same—of the power to call special election for city officers. Section 14, article 4, of the general Incorporation act for cities and villages, confers the power on the city council to call a special election, in all cases when necessary for the purposes of the act under which the city has just been incorporated. That power does not depend upon the fact of a failure to elect officers on the day appointed in that act.
    12. Quo warranto—of the pleadings—requisites of the plea of the respondent. On an information in the nature of a quo warranto against one exercising the office of mayor of a city, it is incumbent on the respondent to show title to the office to prevent .judgment of ouster. But in such a case, involving public interests, mere technical objections to the plea will not be regarded. It is not necessary in the plea to deny the relator’s right to the office, when the facts stated show he has no such right.
    13. In such case, the plea of the respondent, showing his election to the office of mayor, stated that the special election was called in pursuance of an ordinance passed by the city council after the adoption of the general Incorporation act, such council being in office at the time the general law was adopted: Held, that the plea was not obnoxious to the objection that it failed to show by whom the special election was called, and that, the authority to call the same existing in public law, it was not necessary to specially plead it.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for the appellant:
    The adoption of the general law by the votes of the people was a repeal of the special charter of the city. The repeal abrogates all the offices, and determines the tenure of all officers who hold under the repealed act. (People ex rel. v. Brown, 83 Ill. 85.) The substitution of another charter with inconsistent provisions, without a saving clause as to such rights, will have the same effect.
    Section 3, of the general law of 1872, provides that upon its adoption “the city officers then in office shall thereafter exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.” The relator was not in office as mayor when the special charter of the city was abrogated and the general law substituted in its place. The office to which he was elected ceased with the law creating it, and the saving clause applies to the mayor then in office,—not the one just elected under the repealed charter.
    If McCreery was a city officer then in office when the dity became organized under the act of 1872, his right to continue in office was saved by the third section,—if not, the office of mayor was left vacant. This consequence could not have been intended. Jayne could not qualify merely until his successor should be elected and qualified. He could not qualify for one year, or for any definite term, for the special charter authorizing it was abrogated.
    All the authorities concur in the rule that officers elected and qualified for fixed terms, may, after the expiration of the terms, exercise all the powers and perform the duties of their offices until their successors are elected and qualified. It is one of their duties, when their action is necessary, to order an election, to give notice, or do whatever may be necessary in order to the election of their successors. People ex rel. v. Trustees, 51 Ill. 144; People ex rel. v. Bartlett et al. 6 Wend. 422.
    The right to hold the office after the expiration of the term is conferred for the sake of the public, and for that reason a public officer can not found a right to hold one upon his own breach of duty. Dillon on Mun. Corp. 160.
    It being the duty of the city officers (the mayor and city council) in office when the organization under the general' law took effect, to order an election, for their successors, the election ordered by them was valid, and conferred upon the persons elected, when qualified, a perfect title to the offices. The act of 1881, amending section 1, article 1, of the act of 1872, does not change the law in this respect. Under it it is still competent to order the election to be held on some other day than the day of the annual municipal election.

      Messrs. McClernand & Keyes, Messrs. Bradley & Bradley, Mr. R. H. Hazlett, Mr. T. C. Mather, Mr. S. D. Scholes, Mr. Charles P. Kane, and Mr. J. Otis Humphrey, for the relator:
    It is contended that the adoption of the general law had the effect to abrogate the special charter, and legislate out of office all persons elected under the latter. The general law provides that “all laws and parts of laws not inconsistent with the provisions of this act, shall continue in force, and be applicable to any city or village organizing under it, ” the same as if such change of organization had not taken place. Bev. Laws, 1877, p. 205, sec. 6. See, also, sec. 11.
    It follows, then, that the charter, so far as it is not inconsistent with the general law, stands with and is a part of the latter, and the relator is “successor, ” in the terms and sense of the statute. Although the relator was not actually in office at the time of the adoption of' the general law, yet he was an officer under the charter, as a part of that law, and had legal title to the office to which he was elected, which, in law, put relator in constructive possession of the same office.
    The charter and ordinances of the city provide that “the persons having the highest number of votes for any office shall be declared elected. ” The city council only announced the result of the vote, without declaring who was elected.
    A board of canvassers, whose duties are ministerial, may, by mandamus, be compelled to receive and count votes rejected by it. Florida v. Gibbs, 13 Fla. 55; State v. County Judge, 7 Iowa, 186; Clark v. McKenzie, 7 Bush, 523; Kesler v. Cameron, 39 Ind. 488; State v. Dinsmore, 5 Brown, 145; Ellis v. County Commissioners, 2 Gray, 370.
    The writ lies to compel the proper officers to give a certificate of election to the person entitled. State v. Judge, 13 Ala. 815; Strong, Petitioner, 20 Pick. 484; O’Farrell v. Colby, 2 Minn. 180; State v. Loomis, 5 Ham. 358.

      On quo warranto the respondent must show by what title he exercises an office. It is not enough to claim his election generally. 2 Potter on Corporations, 801, sec. 674; Clark v. People, 15 Ill. 217; Dillon on Mun. Corp. sec. 717.
    The construction of appellant would make section 3 of the general law in conflict with the clause of the constitution inhibiting the passage of any law extending the term of any officer’s office beyond that for which he is elected or appointed. Const. sec. 28, art. 4.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The information filed in this case is in the nature of a quo warranto, and was brought in the circuit court, in the name of the People, on the relation of William Jayne, against Ahaz N. J. Crook, to compel him to disclose by what authority he intruded himself into the office of mayor of the city of Springfield, and has since continued to exercise the duties and functions of such office. The facts of the case appear from the pleadings, and are not, therefore, a matter of contention. A concise statement will be necessary to an understanding of the legal questions discussed.

It is set forth in the information, that on the 4th day of April, 1882, and prior thereto, the city of Springfield was a municipal corporation, organized and existing under a special charter granted by the State, having such powers as are usually conferred on such municipalities; that the city, as such municipal corporation, was divided into six wards, by ordinance; that its city government consisted of one mayor and eighteen aldermen, being three from each ward, and such other officers as are usually appointed or elected by such municipalities; that on the 4th day of April, 1882, at an election for city officers under such special charter, the relator, William Jayne, received a majority of all the votes cast at such.election for the office of mayor of the city; that on the same day (the 4th of April, 1882,) the legal voters of the city, in pursuance of a notice given as required by law, voted for and against the incorporation of the city under the act of 1872 in relation to “cities and villages,” and that a majority of the votes cast at that election were “for organization under the general law;” that the relator, Jayne, afterwards gave a sufficient bond, as required by the ordinances, and took and subscribed the usual oath of office, and that by reason of such election and so qualifying as the law requires, the relator became and was entitled to have and hold the office of mayor, to which it is alleged he had been chosen in the manner as above stated, and from thence receive the emoluments attached to such office. It is further alleged that afterwards Abaz N. J. Crook did, by reason of" an illegal and pretended election, usurp and intrude himself into the office of mayor of the city, and has since unlawfully held, and is now holding, such office, without authority of law.

In the plea filed to the information exhibited against him by respondent it is in substance stated, that on the 4th day of April, 1882, the question was submitted to the voters of the city of Springfield of incorporating under the act of 1872 in relation to “cities and villages,” and that at such election a majority of the votes cast were in favor of “organization under the general law;” that afterwards, on the 13th day of April, in the same year, the city council, by ordinance, divided the city into seven wards, and on the 14th day of the same month, by an ordinance, ordered an election for such city officers as are provided for in the general law, to be liolden on the 9th day of May next thereafter, and by the same ordinance fixed the places of voting in the several wards, and ordered notice of such election to be given, as the law requires. It was declared by the preamble to the latter ordinance such election was necessary to the purposes of the act of incorporation, the provisions of which had just been adopted by the voters. It is further averred in respondent’s plea, that such election was held, as appointed, on the 9th day of May, 1882, and that at such election respondent, Crook, received the highest number of votes cast thereat for the office of mayor of the city, and that the votes cast at that election were duly canvassed by the city council, and that respondent was declared duly elected to the office of mayor of the city, and he proceeded to qualify as such officer, and at once entered upon the discharge of the duties pertaining to such office, and has continued to discharge the duties thereof, by virtue of such election and qualification, as he lawfully might. To the plea alleging these principal facts, and others of minor importance, with the usual formality and definiteness, the demurrer interposed by the relator was sustained by the circuit court, and judgment of ouster pronounced. That judgment was affirmed in the Appellate Court for the Third District, and respondent brings the case to this court on appeal.

Before passing to the consideration of the title relator claims to the office of mayor, and the questions of law raised on the causes of special demurrer to the sufficiency of the plea to the information exhibited against respondent, some preliminary questions that are necessarily involved in the decision should be first determined.

It is familiar law that municipal charters are subject to repeal or amendment, at the pleasure of the legislative power granting them. It is equally well settled that the absolute and unconditional repeal of a municipal charter abolishes all offices under it. The substitution of another charter with inconsistent provisions, without any saving clause as to the rights of officers under the former charter, would have the same effect. It is for the reason there is no such thing as a vested right, in the strict sense of that term, in a municipal office, that places it above legislative control. The same power that creates such an office can undoubtedly abolish it. It is so obvious, it is not a matter of dispute that the vote in “favor of organization” was an adoption by the city of Springfield of the act of 1872 in relation to “cities and villages,” instead of or as a substitute for the special charter under which the city had previously been acting, and in so far as the provisions of the general law may be inconsistent with the special charter, the former becomes the controlling law for the city government. Section 6, article 1, of the act, declares, however, that all laws or parts of laws not inconsistent with the provisions of the general law, shall continue in force, and be applicable to any such city or village organized under it, the same as if such change of organization had not taken place.

It was decided by this court in The People v. Brown, 83 Ill. 95, that the reorganization of a city under the general Incorporation law of 1872 determined the tenure of all officers under its special charter, except such as were within the saving clause of that act. It will be perceived provision is only made in the general law for the election of a mayor, a city council, a city clerk, a city attorney, and a city treasurer. All other offices that may be deemed necessary or expedient must be provided for by the city council, and the officers to fill them are to be either elected by the legal voters or appointed by the mayor, with the approval of the city council, as shall be provided by ordinance. It must be understood, then, that the “officers in office” at the time of the adoption by any city of the general Incorporation act instead of or as a substitute for its special charter, “shall exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified, ” applies only to officers holding under the special charter that answer to the same officers provided for in the general Incorporation act. All other offices are abolished eo instanti by the adoption of the general law. This construction was given to the statute in The People v. Brown, supra, and it is not understood either party makes any argument against its correctness.

Keeping these general principles and this construction of the statute in view, a clearer understanding can be more readily had of the latter clause of section 3, article 1, of the general Incorporation act, which has been the subject of so much argument and illustration. The ambiguity arises out of the use of the words “the city officers, then in office. ” It is concerning such officers it is provided they shall “thereupon exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified. ” As counsel tersely .express it, the contention being what officers are meant by the expression “the city officers then in office.” Is it intended to mean the persons voted for, and who received a majority of the votes east for certain officers on the same day of the voting for and the adoption of the general law, or does it mean the officers elected at the preceding annual election, and whose terms of office would expire as soon as their successors should thereafter be elected and qualified; and who were still holding and exercising the functions of their respective offices on the day of such vote for the reorganization of the city under the general law ? Unquestionably the latter- persons are meant, and the argument that supports this construction is so apparent it need not be elaborated. Treating the expression “the city officers then in office,” as descriptive of a class of officers who are “thereupon to exercise the powers conferred on like officers * * * until their successors shall be elected and qualified, ” it may be inquired who are the persons, and what qualifications must they have, to bring them within this description ? Plainly they must, be city officers, and must then (that is, at the time of the adoption of the general law,) be “in office. ” Of the persons claiming the several city offices, who are they that answer this description ? Only the officers elected and qualified at the previous municipal election in April, 1881. They were the only persons “then in office,” and no other persons come within the statutory description. A person elected to a position would not be an officer, in the sense that term is used in the law, until he should thereafter be qualified, as the law directs, by giving bond and taking the oath of office when these acts are required by law. It can not be insisted, with any show of reason, that relator and certain aldermen, and who, like himself, received a majority of the votes cast at the election when the general law was adopted, were officers of the city at the close of the voting on that day. They had not then been qualified in conformity with the city ordinances, and it could not then be known that they ever would. First, they might decline to take upon themselves the burden of the offices to which they had been chosen, and therefore decline to qualify; and second, the charter under which they were chosen might be repealed or annulled, as it was, before they could qualify, and certainly they could not thereafter qualify under a charter that had ceased to exist. It is essential a person chosen should qualify before he becomes an officer, in the sense that term is used in the statute.

This view finds support in another consideration. The majority vote of the people “for city organization” was the adoption of the general law, and it was a perfected act when the vote closed on that day. Nothing thereafter remained to be done, and the old charter was, in fact, repealed. The repeal of the old charter was perfected, and it had ceased to exist before relator could be qualified, or before he offered to qualify. How, then, can it be said the persons voted for on the same day the general law was adopted by the legal voters of the city were “city officers then in office?” The proposition involves a legal solecism. It would seem, therefore, to follow, the persons elected and qualified at the previous municipal election, in 1881, and who were in office on the day the majority vote of the legal voters of the city was cast “for city organization under the general law, ” were “the city officers then in office” who should “thereupon exercise the powers conferred upon like officers * * * until their successors shall be elected and qualified. ”

Two grounds are urged against the correctness of this construction: First, because the constitution of 1870 (sec. 28, art. 4,) provides “no law shall be passed which shall operate to extend the term of any public officer after his election or appointment, ” and the argument is, if the officers elected at the previous municipal election, in 1881, are the “officers ” who shall exercise the powers conferred on like officers until their successors shall be elected and qualified, then the terms of their respective offices would be extended past the time for which they were elected, which is forbidden by the constitution ; and second, because the persons that received the highest number of votes for the respective offices, cast for them on the day of the adoption of the general law, are the successors of the officers elected at the previous municipal election, and must, for that reason, be regarded as “the city officers then in office, ” within the meaning of the clause of the statute. Neither proposition can be maintained. That the “officers then in office” who shall exercise the powers conferred by the general law on “like officers, are officers in the sense that term is used in the constitution, no reasonable doubt is entertained. They are so denominated, and the functions they perform pertain to offices. But the argument on this branch of the case assumes for its support that which does not exist. It is not accurate to say the terms of the “city officers then in office” are or were extended for any period past the term for which they were elected, by virtue of any law or statute enacted by the General Assembly. Such is not the fact. It is true these officers were elected for definite periods, but it is also true they were elected to hold their respective offices until their successors should be elected and qualified. No statute or law provides that any of these officers shall or may hold their respective offices past the time their successors shall be elected and qualified, and until the happening of that event it is lawful for them to hold their respective offices.

The second proposition also admits of a satisfactory answer. The “successors” of “the city officers then in office,” undoubtedly means “successors” elected under the general law. Narrowing the meaning of the word “successors, ” as must be done by any fair construction of the statute, to “successors ” to such officers to be elected and qualified under the general law, the case, in this respect, is relieved of all difficulty. The charter under which the relator claims to have been elected and qualified as mayor of the city, was repealed or annulled before he was, or could be, qualified as an officer under it. Thereafter he could not qualify under it, because it had then ceased to exist or be a law for the government of the city, or, indeed, any law at all. The relator, therefore, never became an officer of the city, and how could he be the “successor” of an officer if he was not himself an officer ? As has been seen, it was indispensable before relator could be the “successor" of the mayor of the city “then in office, ” he must have been elected and qualified under the general law. That is not claimed for him. These considerations make it clear the relator himself has no title to the office of mayor, into which it is alleged respondent has intruded himself.

Passing now to the consideration of the question W'hether respondent has shown title to the office of mayor, the functions of which he now claims the right to exercise, it will be necessary to remark on the causes of special demurrer to his plea to the information exhibited against him, and in which he sets up his title to such office. The law makes it incumbent on respondent to show title to the office he claims the right to hold, or he must suffer judgment of ouster. On this branch of the case no mere technical objections will be entertained or regarded. The questions involved are of too much public importance to be made to depend on any grounds of mere faulty pleading. The facts alleged in the plea, if true, and the demurrer admits them to be true, make it impossible the relator can himself have any title to the office in question, and no formal denial of his title is necessary to make it a good plea. It is enough if the facts pleaded show relator has no title,—anything beyond that is mere redundancy.

It is said the plea is not sufficient because it does not allege by whom or by what authority the persons acting called the special election at which respondent was elected mayor, as he avers he was. It appears the special election was called in pursuance of an ordinance passed by the city council on the 14th day of April, 1882. It sufficiently appears the council that passed the ordinance was the council “in office” when the general law was adopted by the legal voters of the municipality. That shows by “whom” the election was called, and their “authority” for calling it exists in public law, and it was not necessary to plead it specially.

Another objection confidently taken is, the plea does not show valid title to the office in question in respondent, for the reason it admits the reorganization of the city under the general law by a vote therefor on the 4th day of April, 1882, and as respondent’s title to the office rests solely upon his election at a special election held on the 9th of May, 1882, unless such special election was authorized by the general law then it would' be void, and would confer on respondent no title to the office of mayor. The position is assumed that no contingency had then happened that would make it lawful for the city council to call a special election under the general law, which had become the law for the government of the city. This, it is apprehended, is a misconception of both the law and the fact. If the law, under the facts set forth in the plea, authorized a special election to be called, at which respondent could have been elected, it will be sufficient whether that conclusion is pleaded or not. That, it is thought, the law does authorize to be done. It is averred that on the 4th day of April, 1882, at an election held in accordance with the act of 1872 in relation to “cities and villages, ” there was submitted to the legal voters of the city of Springfield the question whether the city would become incorporated under that act, and at that election a majority of the votes cast were “for city organization under the general law, ” whereby the city of Springfield became, then and there, on that day, incorporated under the general law in relation to “cities and villages.” It then became the duty of the “city officers then in office” to proceed to put in operation the city government under the general law. That, the pleas show, they did do without any unreasonable delay,— first, by dividing the city into seven wards, as the law directs; and second, by fixing voting places in such wards, and calling an election of such officers as the general law authorized to be elected by the people,—all of which was done by ordinance. That was the only way in which the form of city government which the people had lately adopted could be put in operation.

It was the plain duty of “the city officers then in office” to adopt measures to organize, consistently with law, the city government, and had they omitted that duty no doubt is entertained that they could have been compelled to go forward and perform it. So far as the plea of respondent goes, it is insisted, it assigns or gives no special reason for holding the special election at which respondent was elected mayor. It is not understood it was necessary to assign any special reason or cause for holding such special election. The plea does, however, set forth the facts that made it the duty of “the city officers then in office ” to proceed at once to divide the city into wards, and call a special election to elect their successors, and among the powers expressly conferred by statute on the city council (sec. 14, art. 4,) is the power to call a special election in “all cases, ” when necessary for the purposes of the act under which the city had just become incorporated. That was a sufficient warrant for calling the special election. It is wholly immaterial whether there had been a failure to elect officers on the day appointed for the regular municipal election. The power to call a special election in such cases does not depend on that fact alone. It may be done whenever it is necessary for the purposes of the act of incorporation. It is obvious that before any election could be held under the general law for the election of city officers, it was necessary the city should first be divided into wards, as that act directs shall be done, and voting places fixed and judges of election appointed. All that, had to be done by ordinance, and it could not be done in time to hold an election for city officers on the day fixed by the general law for holding such elections. It was therefore necessary, for the purposes of the act, a special election should be called and held for the election of city officers under the general law to be “successors” to the “city officers then in office,” and for so doing the statute itself was a sufficient warrant.

It is unnecessary to extend this discussion further. Enough has been said to give expression to the views of the court on the principal questions discussed. The conclusions reached are, first, the relator has no title in law to the office of mayor, which he claims; and second, under the state of facts appearing in the plea of respondent, which the demurrer, of course, admits to be true, the statute warranted the calling of a special election for the election of the “successors” of the “city officers then in office, ” as was done, and as respondent was elected mayor of the city at such election, and thereafter qualified, as the law directs, his title to the office of mayor is valid.

The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court, and remand the cause to the circuit court, with directions to overrule the demurrer to the plea, and render judgment for respondent.

Judgment reversed.

Mr. Justice Dickey was not present at the argument of this case, and gave no opinion.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    Jacksonville and Southeastern Railway Company v. Michael H. Walsh.

      Filed at Springfield March 29, 1883.

    1. Eminent domain—measure of damages. In a proceeding under the Eminent Domain act to condemn property for a railroad depot, the cash value of the property is the only proper measure of damages. All evidence tending to show that value is proper, and all evidence tending to enhance the damages above or reduce them below that sum is improper.
    2. In such case the evidence should be confined to the market value of the property sought to be taken, and all evidence of the amount of business that was or could be done on it, or the probable profits arising therefrom, should be rejected. The purpose for which the property was used and designed, its location and advantages as to situation, are proper matters for the consideration of the jury; but the profits of the business past, and conjectural x:rofits for the future, are too speculative and uncertain upon which to ascertain the market or cash value of the property.
    3. The question of the cost of the erecting of such buildings as were upon the premises is not an element of damages, unless it is shown they would actually increase the value of the premises to the extent of their cost. Such improvements may or may not enhance the value of the land to the amount of their cost. The true question is, not what the property cost, but for how much would it sell.

      4. Instruction— calling attention to the evidence of one party. On an inquest of damages for property sought to be condemned, an instruction which singles out and calls attention to the testimony of the land owner is erroneous, as unfair, and calculated to mislead the jury, by seemingly giving undue importance to such testimony.

      Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for the appellant:
    The “dry claim for the intrinsic value of the property in question”, was the true measure of damages in this case. Sedgwipk on Measure of Damages, (6th ed.) side page 566; Jacob v. City of Louisville, 9 Dana, 144.
    The “just compénsation” to Walsh was the actual value of the real estate as it stood, with the improvements and surroundings. 2 Kent, (12th ed.) 340, note.
    This court has often held substantially the same rule. Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 30; Jones v. Chicago and Iowa R. R. Co. 68 id. 380; Keithsburg and Eastern R. R. Co. v. Henry, 79 id. 292.
    The income from the bar-room and hotel on the premises constituted no part of the case before the jury. Lake Shore and Michigan Southern R. R. Co. v. Chicago and Western Indiana R. R. Co. 100 Ill. 32; Booker v. Venice and Carondelet Ry. Co. 101 id. 337.
    There was no pretense that the property had ever been or was intended for rent, and the rental value, therefore, was not competent evidence. Jones v. Chicago and Iowa R. R. Co. 68 Ill. 380; Booker v. Venice and Carondelet Ry. Co. 101 id. 337.
    Mr. W. H. Barnes, Mr. Geo. W. Smith, and Mr. Oscar A. DeLeuw, for the appellee,
    discussed the facts and evidence as to the value of the property sought to be condemned, to show it fully justified the finding of the jury.
    To test the compensation for taking the property of Walsh by the selling price in open market, is not just. It would not compensate. It is true the property was worth more in the use he was putting it to than any other. True, it had a special value, and for this he was entitled to compensation. Railroad Co. v. Van Horn, 18 Ill. 258.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a proceeding under the Eminent Domain act, to condemn land for railroad purposes. The petition was filed and presented to the circuit judge, and he fixed the time for a hearing on the 12th of August, 1882. On the day thus fixed appellee appeared and filed an answer, denying all the material allegations of the petition. A jury was impaneled, and, at the instance of appellee, they went upon and examined the premises sought to be condemned, before the admission of any evidence. The evidence was heard by the jury, and they found and reported $14,000 as the damages appellee would sustain by taking the property for a depot for the road. Appellant thereupon entered a motion for a new trial, but it was overruled by the judge,' and a final order entered on the finding of the jury. The railroad company thereupon prayed and perfected an appeal, and the record is brought to this court, and various errors are assigned.

There can be no plainer proposition than the cash value of the property condemned was the sum appellee was entitled to recover as damages. All legitimate evidence tending to establish that sum was proper, and all evidence that tended to enhance the damages above dr reduce them below that sum was illegitimate and improper. The inquiry should have been confined to the market value of the property, and all evidence of the amount of business that was or could be done in it, or the probable profits arising therefrom, was improper, and should have been rejected. The purposes for which it was used and designed, its location and advantages as to situation, were proper matters of consideration by the jury; but the profits of the business of the past, and conjectural profits for the future, were too speculative and uncertain upon which to ascertain the market or cash value of the property. The question was not the value of the property for a short term of years, but the entire property, and its value. Here, evidence was admitted to show the sales of liquor in the saloon each day, and the profits accruing from these sales. Such sales depend so largely on varying circumstances that the damages are purely speculative. Whether there shall be licenses granted to keep saloons in the municipality is contingent, and wholly uncertain.. No one can say that when appellee’s license expires, he or others can procure another for years, if ever, afterwards. That all depends upon the discretion of the municipal authorities. Again, one person can do a greatly larger business in the same calling, at the same place, and under the same circumstances, than another. It may be that appellee could, in that saloon, do double the amount of business that any other person could do. Such considerations are purely contingent, and altogether speculative, and can not form the basis for fixing the price of the property, and its market value was the question involved, and which the jury were required to find. That was the measure of the damages they were to assess.

The question as to the number of guests that stopped at the house daily, was of the same character. That depended upon a great number of contingencies. As one witness answered, the house was sometimes full, and sometimes it was not. Again, the question of the cost of erecting such buildings was not an element of damages, unless it were shown they would actually increase the value of the premises to the extent of their cost. All know that the cost of improvements on real estate is not a true test of their value in market. They may, or not, owing to circumstances, enhance the value of the property to the amount of their cost. The true question was, what was the value of the property as it then was,—not what it cost, but for how much would it sell. The admission of this evidence, against the objection of appellant, was also error.

It is urged that the court erred in giving appellee’s sixth instruction. It singles out and calls attention to the testimony of appellee, in finding their verdict. Such a practice has long been condemned, in numerous cases in this court, as unfair, and calculated to magnify the importance of the evidence of the particular witness. Here there were many witnesses as to the value of the property, and great contrariety of opinion as to its value, and the jury might well ask „why the judge should refer to the evidence of this particular-witness, unless it was regarded as more reliable than that of all others. Even his own witnesses did not all agree with him as to value. Then why single out and refer to his evidence above all others, and this, too, when he was a deeply interested witness ? Why should the court thus indorse his evidence P We must .in this case, as we have in many previous cases, hold this instruction erroneous, and, in the conflict of the evidence, ground for a reversal.

For the errors indicated the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Dickey

text:
    David Puterbaugh v. Charles Hammond.

      Filed at Ottawa March 28, 1883.

    1. Assignee with notice—measure of recovery on a note given as an indemnity. A principal maker of a note gave to his surety thereon a note for $2000, secured by a second mortgage on land, to indemnify him against loss in respect to his suretyship, upon which the surety indorsed, “This note is made to secure me against any and all loss that I may sustain from having signed notes, as security, with said principal, ” and signed his name thereto. The surety, after judgment against him and his principal, indorsed such indemnifying note, before maturity, to a prior mortgagee, who paid to the creditor in the judgment $1600, and the surety paid the balance of the judgment against him and his principal: Held, in a suit by the assignee against the maker of the indemnifying note, that the former, having notice from the memorandum on the note that it was given only to secure the payee for all moneys he might pay for the maker, could only recover the amount paid by the assignor as surety, with the right first to retain the $1600 advanced by him on the judgment, and interest thereon, and hold the residue of the collection to make the assignor whole for the balance of the payment made by him as surety of the maker of the note.
    2. Principal and surety—assignment by the latter of collateral paper held as indemnity—right of action in the former. In such case the maker of the note so assigned is not damaged by the assignment when he has not paid the note, and can not be damaged thereby, for the reason that on payment of the sum advanced by the assignee, and to the assignor the money paid by him as surety in discharge of the judgment, the note given as indemnity would be satisfied, notwithstanding its assignment.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.
    This is an action of assumpsit, brought by Hammond, against Puterbaugh, in the circuit court of Carroll county, to the January term, 1881. The declaration consisted of the common counts, for goods sold and delivered; for money lent and advanced to defendant; for moneys paid, laid out and expended for defendant; for money had and received; for money due for interest; for work and labor done and materials furnished, and upon an account stated. The defendant pleaded non assumpsit, payment, and set-off. Upon these pleas issues were formed, which, upon trial by jury, were, on April 16, 1881, found for plaintiff, and his damages assessed at $1177.85. A motion for a new trial, by defendant, was overruled, and judgment was entered upon the verdict. This judgment was affirmed in the Appellate Court, on appeal, and Puterbaugh appeals to this court.
    The bill of exceptions shows that the testimony offered by plaintiff tended to prove that plaintiff held the note of defendant for the sum of $7,—due March 2, 1878, $8.30; that on December 27, 1878, plaintiff paid for defendant, costs, to police magistrate, $10.20; that at the June term, 1878, of the circuit court of the county of Carroll, a judgment was entered against Puterbaugh and Hammond, for the sum of $2102.25, in favor of Bent & Cottrell, upon a note given by defendants, on which Hammond was merely security for Puterbaugh. This note was given February 5, 1877, for $2000, payable in one year from date, with interest at the rate of ten per cent, and at the. same time, or soon after, Puterbaugh gave to Hammond his note for $2000, payable two years from date, and at the same rate of interest. This latter note was secured by mortgage on what was called the Wicks farm. On this note was a memorandum, signed by Hammond, saying:
    “This note is made to secure me against any and all loss that I may sustain from having signed notes, as security, with said Puterbaugh.

      “Feb 16 ’77 Charles Hammond. ”
    On December 27, 1878, Hammond, and the judgment creditors, Bent & Cottrell, and one Samuel W. Treat, who held a prior mortgage on the Wicks farm, at the instance of Hammond made an arrangement by which Treat paid to Bent & Cottrell $1600 upon their judgment against Puterbaugh, and Hammond, in addition, paid $630.80, (by giving a promissory note to them, which was accepted as payment, and which was soon after this paid,) and thereupon Hammond assigned to Treat the note by Puterbaugh, given to Hammond as above stated. Afterwards Treat sued out an execution upon the Bent & Cottrell judgment, against Puterbaugh and Hammond. They united in a bill for an injunction to stay this execution, upon the ground that the same was fully paid, and obtained a decree against Treat, making such injunction perpetual. In prosecuting this suit counsel were employed in behalf of complainants, and Hammond paid $70 for their professional services. In this action, Hammond, on the trial, claimed to recover, with interest to the time of trial, the sums paid by him on the small judgments, and the $630.80 paid on the large judgment, the moneys paid by him for attorney’s fees in the chancery suit, and also some small amounts for services performed by him for Puterbaugh, in and about his business, at his request. About these services the testimony was contradictory. The chief defence set up was, that Hammond had sacrificed the $2000 note given to him by Puterbaugh, by selling the same for less than its value, viz., for $1600, to Treat, without special authority or the consent of Puterbaugh. It was claimed by the defendant, at the trial, that he should have credit for the difference between $1600 and the amount due upon the face of the $2000 note, and evidence was given on the trial tending to show that the Wicks farm was of value sufficient to secure the prior mortgage of Treat, and also this $2000 note assigned by Hammond to Treat.
    Mr. James Shaw, for the appellant:
    Commercial paper held as collateral security can not be sold by the holder, but must be collected, and the proceeds applied on the debt it secures. Joliet Iron Co. v. Sciota Fire Brick Co. 82 Ill. 548; Wheeler v. Newbold, 16 N. Y. 392; Edwards on Bailment, 261; Garlick v. James, 12 Johns. 146 ; Depuy v. Clark, 12 Md. 428; Union Trust Co. v. Rigdon, 93 Ill. 458; Zimpleman v. Veeder, 98 id. 613.
    The purchaser of a note and mortgage at a discount, before maturity, is entitled to collect the full amount due on said paper; and such_is the law even when the paper is held' as -collateral security. Tooke et ux. v. Newman et al. 75 Ill. 215; Raples v. Morgan, 2 Scam. 561; Sherman et al. v. Blackman, 24 Ill. 345; Hilton v. Waring et al. 7 Wis. 492.
    A person taking a note as collateral security before due, is a bona fide purchaser, and the maker can have no defence to it, but must pay it in full. Manning v. McClure, 36 Ill. 490; President, etc. v. Chapin, 8 Metc. 40; Rose v. Teeple, 16 Ind. 37; Horne v. Cole, 51 N. H. 287; Tooke et ux. v. Newman et al. 75 Ill. 215; Bayliss on Sureties, 352.
    Messrs. Hunter & Hoffman, for the appellee:
    A surety has a right of action against his principal debtor for any and all amounts the surety pays for him after the principal is in default, and can be legally called on for payment, or after the surety may be compelled to pay the same. Shepard v. Ogden, 2 Scam. 257; Davis et al. v. The People, 1 Gilm. 409; Bonham v. Galloway et al. 13 Ill. 68; The Governor v. Lagow et al. 43 id. 142; Darst v. Bates et al. 51 id. 439; Hall v. Smith, 5 How. 96; Chitty on Contracts, (5th Am. ed.) 517, and note; 1 Parsons on Contracts, 470, 471.
    When a note and mortgage are placed in the hands of a creditor as collateral, but are not paid, the party depositing them can claim no credit for the amount due by them in a suit by the creditor. Prettyman et al. v. Barnard, 37 Ill. 109.
    A bona fide holder of commercial paper is one who acquires the paper in good faith, without notice or knowledge of defences or of circumstances which should put him on inquiry, for a valuable consideration, from one capable of transferring the paper. 1 Parsons on Notes and Bills, (2d ed.) 254.
    In a suit by the assignee of a note, who holds it as the trustee of the payee, against the maker, the latter may interpose any defence or offer any set-off which such maker has against the payee. Henry v. Scott, 3 Ind. 412; 1 Parsons on Notes and Bills, 255, note s.
    In a suit by the holder of a note held as collateral security, the maker may offer any defence that he may have against the payee of the note, except as to the amount of the debt for which such note is held. Steere v. Benson, 2 Bradw. 560 ; Williams v. Smith, 2 Hill, 301; President, etc. v. Chapin, 8 Metc. 40; Jones v. Heffert, 8 Eng. C. L. 419; Atlas Bank v. Doyle, 9 R. I. 76.
    An assignee, in equity, holds subject to all defences. Grossly et al. v. Reinback, 4 Bradw. 342; Foster v. Strong et al. 5 id. 223; Olds v. Cummings, 31 Ill. 188.
   Mr. Justice Dickey

delivered the opinion of the Court:

It is contended by counsel for appellant, that, inasmuch as this note of Puterbaugh, given to Hammond, was sold and assigned to Treat before maturity, Puterbaugh is liable to pay to Treat the entire amount of the face of that note, and interest, and as Hammond had no authority to sacrifice the note by a sale for less than its face, Puterbaugh had the right, in this action, to recoup or set-off against Hammond the difference between the sum’of $1600 received of Trqat, and the amount of the note, and accrued interest at the time of the sale to Treat by Hammond. We do not see how this position can be sustained. It is true the note was not due when it was assigned to Treat, but it is equally true that there was a memorandum on the back of the note, signed by Hammond, which gave Treat notice that the note was not given for an existing debt, but merely to secure Hammond for all moneys he might pay for Puterbaugh, as his security on notes signed with Puterbaugh, by Hammond. Under these circumstances, the only amount which could, in any event, be recovered from Puterbaugh on this $2000 note, would be the amount paid by Hammond as such security, and not refunded by Puterbaugh; and the only effect of the assignment of the note to Treat by Hammond was, to enable that amount to be recovered upon the note in the name of' Treat, and to give Treat a preference, authorizing him to apply the first moneys arising from collection on that note to repayment to him of the $1600 advanced by him, and interest thereon, and requiring him to apply the residue of such collections to making Hammond whole for payments made by him other than the $1600. Puterbaugh has paid nothing on this note, and has not been damaged by its assignment to Treat, and it is not perceived that he can hereafter be damaged. Should he pay to Treat the $1600 advanced by him when this note was assigned to him, and pay to Hammond, with interest, the other moneys paid by him in payment of these judgments, it will operate as a full satisfaction of this note held by Treat.

We find no cause to disturb the judgment of the Appellate Court, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Daniel W. Flynn et al. v. Mary Fogarty.

      Filed at Ottawa March 30, 1883.

    1. Death occasioned by intoxication—suit by widow for injury in her means of support by the loss of her husband—grounds of action under Dram-shop act. In a suit by a widow against a dram-shop keeper to recover for an alleged injury in the means of support of the plaintiff as the result of the death of her husband, occasioned by his being in a state of intoxication produced by the drinking of intoxicating liquors furnished to him by the defendant, to make out a ease under the statute it is necessary to establish, first, that the defendant sold or gave to the plaintiff’s husband intoxicating liquors; second, that the giving or selling of such liquors caused, in whole or in part, his intoxication; third, that such intoxication caused his death; and fourth, that by reason of his death the plaintiff was injured in her means of support.
    2. Same—inference of injury to means of support—shifting the burden of proof. If, upon the trial in such a suit, the death of the plaintiff’s husband is shown, and that his death was occasioned by intoxication produced by liquors sold or given to him by the defendant, in the absence of any proof to the contrary the jury will be warranted in inferring therefrom an injury to the plaintiff’s means of support. That will be sufficient to shift the burden of proof, and entitle the plaintiff to at least nominal damages.

      3. Same—measure of damages—of evidence proper to be considered. In such case, in order to ascertain the measure of the plaintiff’s loss from the death of her husband, it is proper to show his age, what he himself had done in his lifetime, the character of his business, his habits of industry and thrift, income, and all that sort of thing, with a view of determining what he probably would have continued to do but for his death.
    4. But what the widow may have done, or what expenditures she may have made, since his death, in respect to the business in which her husband had been engaged, would afford no ground of presumption as to what he would have done in the event he had lived. So where, in such a case, it appearing the plaintiff’s husband was a farmer, the plaintiff was permitted to prove that since her husband’s death she had expended considerable sums in ditching upon the farm, and having rails split, and fencing made, it was held that proof of such expenditures should not have been allowed, as it afforded no criterion by which to determine the extent to which the plaintiff’s means of support had been permanently diminished by her husband’s death.
    5. The plaintiff was also permitted, in giving her testimony, to detail to the jury the inconveniences she had labored under since her husband’s death,—how she had to go to town on cold days, and the fact of one of her girls having to work out, and, also, to speak of the mangled condition in which she found her husband shortly after the injury which was the immediate-cause of his death; how she fainted away, and his dying remark to her, “Mary, I can’t see you any longer,—I am getting blind. ” All this was improper, as having no bearing on the issue as to the extent of injury to the plaintiff’s means of support by the death of her husband, and only calculated to enhance the damages through sympathy for the plaintiff and prejudice against the defendant.
    6. Evidence—leading questions. While it is conceded that leading questions may be propounded to a witness who is hostile to the party calling him, or is required to testify against his own interest, yet in the absence of any considerations of this character, as, where the witness is favorable to the party examining him, such a course of examination is not allowable.
    Appeal from the Appellate Court for .the Second District; —heard in that court on appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellants.
    Messrs. Willoughby & Daugherty, and Mr. F. S. Murphy, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action brought by Mary Fogarty, the appellee, in the Knox circuit court, under the 9th section of the Dram-shop act, against the appellants, Daniel Flynn, Septimus Merrick, Gus Henderson, and others who are not parties to this appeal, to recover damages for the loss of her husband, John Fogarty, whose death, it is claimed, was caused by intoxicating liquors sold to him by the appellants. The cause was tried before the court and a jury, in the month of December, 1880, resulting in a verdict and judgment for the plaintiff for $1800, which was subsequently affirmed by the Appellate Court for the Second District, and the appellants bring the case here for review.

The evidence shows that the deceased was between forty and fifty years of age, in good health, and by occupation a farmer; that he was the head of a family, consisting of himself, wife, and eleven children, the oldest, a son, being between eighteen and twenty years of age; that on the morning of the 20th of October, 1879, he went to Galesburg by rail, and shortly after his arrival there commenced drinking intoxicating liquors, and continued to do so, off and on, during the day; that at, or shortly after, a quarter past six in the evening he left Galesburg for home, by way of the Chicago, Burlington and Quincy railway, in a state of intoxication; that he arrived at St. Augustine, his home station, not far from seven o’clock of the same evening; that in attempting to get off the train he fell from the platform between two cars, when the wheels of the rear one passed over both his legs, inflicting injuries from which he died the following morning. The evidence satisfactorily shows that the deceased drank intoxicating liquors at least three times during the day at Flynn & Merrick’s saloon,—once in the forenoon and twice in the evening,—the last time being between four and five o’clock. It was also shown that the deceased took three glasses of beer in the forenoon at Henderson’s saloon, the exact time not being fixed. This was all the evidence tending to connect the defendants with the intoxication of the deceased.

Appellee bases her right of recovery upon the sole ground “she has been injured in her means of support. ” To make out a case, under the statute, it was necessary for her to satisfactorily establish, first, that the defendants sold or gave to the deceased intoxicating liquors; second, that the giving or selling of such liquors caused, in whole or in part, his intoxication ; third, that such intoxication caused his death; and fourth, that by reason of his death the plaintiff was injured in her means of support. Whether these facts were sufficiently established on the trial is a matter with which we have no concern, except so far as it may be necessary to present our views upon certain questions of law arising on the record.

So far as Flynn and Merrick are concerned we are unable to say the jury erred in reaching the conclusion they did, but with respect to Henderson, to say the least of it, we regard it as highly improbable that the three glasses of beer drank by the deceased in the forenoon at his saloon could have, in any degree, contributed to the intoxication of the deceased at seven o’clock, or thereabouts, in the evening. There is no fact or circumstance tending to show that the deceased either drank at or was about Henderson’s saloon in the afternoon of that day, nor is there any claim by counsel to that effect. Under these circumstances, therefore, it was but just, and highly important to the accused, that the law of the case should have been accurately stated to the jury, and strictly observed by the court in the admission or rejection of testimony.

On the trial of the cause, the court, at the instance of the plaintiff, gave to the jury, among others, the following instruction, to the giving of which the defendants, at the time, excepted:

“The court instructs the jury, for plaintiff, that if they believe, from the evidence, that John Fogarty, the husband of the plaintiff, came to his death on account of his intoxication, and that said intoxication was caused, wholly or in part, by intoxicating liquor sold or given to the said John Fogarty by the defendants, then the verdict of the jury should be for the plaintiff, with such damages as, in the judgment of the jury, from the evidence, the plaintiff is entitled to recover, not exceeding in the aggregate the sum of $10,000.”

It is objected that this instruction wholly dispenses with all proof showing the plaintiff had been injured in her means of support by reason of the death of her husband, and that it, in effect, told the jury they might infer such injury from the mere fact of Fogarty’s death,—and such, it must be conceded, is the purport of the instruction. Nevertheless, we think there was no substantial error in giving it. In the absence of any proof to the contrary, we think the jury were warranted in inferring an injury to the plaintiff’s means of support by showing Fogarty’s death, and that it was occasioned by intoxication produced by liquors sold or given to him by the defendants. This was sufficient to shift the burden of proof, and entitled the plaintiff to at least nominal damages.

It is also objected that appellee, while testifying as a witness in her own behalf, was asked by her counsel, against the objections of the defendants, the following question: “State if, during the year, you have been put to extraordinary expenses you would not have been put to if it was not for Fogarty’s death. ” This question was clearly improper, both in form and substance. It was leading. It clearly suggested the answer desired, which is never permissible where the witness is favorable to the party examining him, as the plaintiff evidently was in this case.

But the matter elicited by the question was still more objectionable than the question itself. The witness, in response, went on to state that she had expended during the year about $175 in ditching forty acres of land, having rails split, and in having fencing made. It was necessarily a matter of the purest conjecture whether the husband would have done all this work, or any part of it, with his own hands, had he been living, or, indeed, whether he would have had any of it done at all. Moreover, what the plaintiff saw proper to expend on the farm with a view of improving it and increasing its value, during a particular year, afforded no criterion whatever by which to determine the extent to which her means of support had been permanently diminished by her husband’s death. Suppose she had doubled these expenses, or increased them ten fold, as she well might have done, would they still have furnished a rule for determining the extent of her loss ? To permit evidence of this character to be received would place it in the power of every one thus circumstanced to manufacture evidence for the express purpose of. enhancing the damages. It was highly proper to show what the deceased himself had done in his lifetime, the character of his business, his habits of industry and thrift, income, and all that sort of thing, with a view of determining what he probably would have done in the future had he not been killed. Could it have been known to a certainty what he would have accomplished but for his death, that would have furnished the exact measure of her loss; but as that could not be definitely ascertained, the next best thing was to show the aid and assistance he probably would have rendered her but for his death, and this could only be done by proving his age, physical condition, habits of industry, thrift, etc., as above indicated. What his widow herself had done after his decease, manifestly afforded no ground of presumption as to what he would have done in the event he had lived.

The plaintiff was also permitted to go on and detail to the jury the inconveniences she has labored under since her husband’s death,—how she had to go to town on cold days, and the fact of one of her girls having to work out, and, also, to speak of the mangled condition in which she found the deceased shortly after the injury; how she fainted away, and his dying remark to her, “Mary, I can’t see you any longer,— I am getting blind. ” All this had not the slightest legitimate bearing upon the vital issue in the case,—namely, the extent to which the plaintiff had been injured in her means of support by the death of her husband. Its obvious effect was to unduly arouse the sympathies of the jury in favor of the plaintiff, and create a corresponding prejudice against the defendants. The calling out of such recitals before the jury is often but an artful device of ingenious counsel to divert the attention of the jury .from the real issue, and increase the damages to an extent not warranted by the facts. In such cases it is the duty of the court, on its own motion, to interpose.

As this case will have to be reversed for the error indicated, and the cause retried, we deem it proper to say that we are of opinion the trial court gave plaintiff’s counsel too much latitude in the examination of her witnesses. They seem to have been uniformly permitted to ask leading questions, without the slightest restriction, against the repeated objections of the defendants. While we concede the court may properly allow this where the witness is hostile to the party calling him, or is required to testify against his own interest, yet in the absence of any considerations of this character such a course of examination is in palpable violation of a well settled rule of law regulating the production of testimony, and is manifestly unjust to the opposite party. While we are of opinion that in some instances in the present case leading questions were properly allowed, yet we are equally clear that in other instances they were not, of which the above question to the plaintiff herself is an example. It is not necessary to go into further detail on this subject. What we have here said is with a view of preventing a repetition of the same error on a second trial of the cause. Cases of this kind should be tried like all other cases,—each party should have the full benefit of all those wholesome rules o'f law regulating the ' trial of causes which are so essential to a fair and proper administration of justice.

For the errors indicated the judgment of the' Appellate Court is reversed, and the cause remanded to that court with directions to reverse the judgment of the circuit court, and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed.


text:
    Thomas Biggins v. The People of the State of Illinois.

      Filed at Springfield March 29, 1883.

    1. Statute—giving a new remedy applies to prior cause of action. Under the act of 1881, amendatory of section 253 of the Revenue law, so far as it gives a new remedy to enforce the lien on land for taxes by foreclosure in equity, the remedy may be used or employed to enforce a preexisting right, as well as one subsequently accruing. It makes no difference when the cause of action arose,—the remedy, when given, may be availed of.
    2. Taxation—Ken for taxes, and “costs, interest or penalty”—under acts of 1872 and, 1881. Section 253 of the Revenue act of 1872, made not only the “taxes" on land a lien thereon, but also the penalties, interest and costs, as section 292, division 14, of that act declares that the word “tax” or “taxes,” when used in that act, shall include “costs, interest or penalty.” Therefore the act of 1881, amending section 253, although it, in terms, makes not only the taxes, but the “penalties, interest and costs” a lien upon the property assessed, creates no new lien.
    3. Same—remedy by foreclosure—to what it is limited. The statute limits the remedy in equity for the collection of taxes by foreclosure to cases where the “taxes for two or more years, upon the same description of property, shall have been forfeited to the State."

      4. Same—what constitutes a forfeiture to the State. Real property is forfeited to the State when, at any regular tax sale under the Revenue*act, the collector shall offer it for sale, and it shall not be sold for want of bidders.
    5. Same—effect of irregularities in obtaining judgment under which forfeiture was had. On an application for judgment against land for the current and back taxes, and for penalties, interest and costs, it is not important to inquire whether the judgment under which the land was forfeited to the State was in every respect in conformity to law, if the land was in point of fact so forfeited. So in a suit in chancery for foreclosure in respect to taxes, penalties, etc., due upon forfeited lands, the question whether the judgment under which the forfeiture was had was in strict conformity with the statute will not be considered.
    6. Same—payment of current taxes—as a bar to a forfeiture in respect to back taxes. The payment by the owner of land, of the current taxes thereon, to which have been added back taxes with' penalties, interest and costs, will not operate to avoid a forfeiture of the land for such back taxes, penalties, etc.
    7. Same—adding “penalties, interest and costs”—under what circumstances allowable—the statute construed. Under sections 129 and 229 of the Revenue act now in force, in case of real property having become forfeited to the State for non-payment of taxes, “penalties, interest and costs” may be imposed in respect to such forfeited real property, which may be collected, with back taxes. In such case section 277 of that act has no application, as it has reference to a case where a tax assessed on property liable to taxation has been prevented from being collected for any year or years on account of any erroneous proceedings.
    8. Former adjudication—concludes only as to right sought in prior suit. A judgment in a suit at law against a party,.holding that the defendant was not personally liable for back taxes, penalties, interest and costs, is no bar to a suit in equity to enforce the statutory lien on the land for the same taxes, penalties, interest and costs, and subject it to sale for the same, nor is a decree dismissing a bill filed to enforce such lien for want of jurisdiction a bar to a second one filed for the same purpose after the enactment of a law giving such remedy.
    9. Same—:judgment against land for taxes. A land owner, in 1879, appeared in the county court and objected to judgment against his land for the taxes of 1878 and prior years, claiming that there was no legal forfeiture of the property for the years 1871 to 1878, and that the clerk had no right to place such taxes on the tax book for either year, for the “reason that the several tax sales were made under pretended judgments for taxes for said years without any process, as required by law. ” Judgment was rendered against the property for the greater part of the back taxes, and judgment was again rendered against it in 1880 for the current taxes, and back taxes, with penalties, interest and costs thereon, and in 1881 a similar judgment was rendered, over the objection of the owner: Held, that the owner, by these judgments of the county court, was concluded from questioning their validity, and denying that the land was legally forfeited.
    Appeal from the Circuit Court of Jersey county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Irwin & Springer, and Mr. J. W. Coppinger, for the appellant:
    To create a forfeiture of lands to the State for unpaid taxes, there must have been a notice, a judgment, a process issued for the sale of the property, an offer of the property for sale, and a failure to sell for want of bidders. Vetter v. People, 3 Bradw. 381; Smith v. People, id. 380; Scott v. People, 2 id. 642. See, also, Spellman v. Curtenius, 12 Ill. 409; People v. Owners, 32 id. 408; McKee v. Supervisors, 53 id. 477.
    There being no forfeiture of the lands in question, it was error on the part of the collector to charge them with penalties which can accrue only against forfeited land. Appellant purchased these lands in November, 1877, and has paid the. taxes on all subsequent years, and we submit that under sections 277 and 278 of the Bevenue law,—which are the only ones applicable,—he is not liable for these back taxes and penalties.
    If it be said we are precluded by the judgment of the county court from raising this question, we answer that the act by virtue of which this suit was brought does not predicate the right of foreclosure on the judgment of the county court, but upon the taxes, and it makes, not the judgment record, but the collector’s books, prima facie evidence of the amount due. Prior to the act of-1881 the taxes were a lien upon the land, but that act makes not only the taxes, but the penalties, interest and costs, a lien, and not only a lien, but a prior and first lien, superior to all other liens and incumbrances.

      This act was intended to operate prospectively, and not retrospectively. Throughout the act the future and not the past tense is used. It speaks of the “penalties, interest and costs that may accrue. ” Courts will not give a law a retroactive operation', even though it might be done without a violation of the constitution, unless that intention is manifested by the most clear and unequivocal language. Betts v. Bond, Breese, 223; People v. Thatcher, 95 Ill. 109, Wade on Retroactive Laws, secs. 34-39.
    Mr. J. H. Yager, State’s Attorney, for the People:
    Where the party appears and resists judgment against his land for taxes, he waives all defects in the notice of the application, and it matters not if there was no notice at all. People v. Sherman, 83 Ill. 165.
    As to the matters preceding the application for judgment, they must be considered res judicata, and not to be again investigated. Lehmer v. People ex rel. 80 Ill. 601.
    Errors and omissions not affecting the substantial justice of the tax will not vitiate. Sec. 191, Revenue act; Beers v. People, 83 Ill. 88; Edwards et al. v. People, 88 id. 340.
    It is asked if a forfeiture can be had on back taxes alone. The record shows that the taxes on this land were paid for the years 1880, 1879 and 1878, on March 31, 1881, from which it is plain that the back taxes were added to the current year’s tax.
    On an application for judgment against land for taxes, including back taxes on lands forfeited for previous years, it is not competent to inquire whether the judgments for taxes of previous years were in strict conformity to the statute. If those judgments were erroneous, the remedy was by appeal or writ of error. (People v. Smith, 94 Ill. 226.) The judgment is binding, though erroneous. People ex rel. v. McCrea, 92 Ill. 619.

      The amendatory act of 1881 gives a new remedy to enforce preexisting liens for taxes, and may be used for that purpose. The other suits against appellant are no bar to relief under this statute. The dismissal of the prior bill was for want of jurisdiction, and decided nothing as to the merits of this controversy.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case was brought under that clause of the act of 1881 which declares “the taxes upon real property, together with all penalties, interest and costs that may accrue thereon, shall be a prior and first lien on such real property, superior to all other liens and incumbrances, from and including the first day of May in the year in which the taxes are levied until the same shall be paid, which lien may be foreclosed in equity in any court of competent jurisdiction, in the name of the People of the State of Blinois, whenever the taxes for two or more years, upon the same description of property, shall have been forfeited to the State.” The object of the bill is to subject a piece of land, known as the “old penitentiary grounds, ” to the payment of back taxes assessed thereon for the years 1871 to 1877, both years inclusive, together with the “penalties, interest and costs” that have accrued thereon. It is alleged in the bill that Thomas Big-gins, who is made defendant, became the owner of the property in 1877, under deeds containing a clause providing the grantee shall pay all taxes and assessments, both general and special, levied and assessed on the property prior to and up to the date of such deeds. The owner failing to pay the taxes for the several years mentioned, it is alleged the collector gave notice of aqqplication for judgment and order of sale, as required by statute, in pursuance of which such proceedings were had in the county court that judgments for the taxes due for each year were obtained, and under such judgments the property being offered for sale was forfeited to the State for want of bidders; that at the May term, 1881, after the property had been assessed in the name of the present owner, judgment was rendered against it for the taxes, interest, penalties and costs then due thereon, and an order of sale made, in pursuance of which it was advertised and offered for sale in conformity to law, and was again struck off to the State for want of bidders, and that the taxes for more than two years have been assessed on the property, and it has been forfeited for more than two successive years for the non-payment of taxes thereon. An amendment to the bill states the ownership and source of title to the property as in the original bill, the recovery of judgment against the property at the May term, 1880, of the county court, for delinquent taxes, penalties, interest and costs, under which it was advertised and offered for sale in the manner pointed out in the statute, and was struck off to the State, and also restating the proceedings of the May term, 1881, of the county court, as set forth in the original bill.

The answer of the owner defending admits ownership of the property, and sets up as a defence, first, that the “penalties, interest and costs” on the taxes included in the decree are without authority of law, and are, for that reason, no charge on the property in his hands; and second, that a suit at law was brought against the present owner for the identical taxes, penalties, interest and costs involved in this suit, in which it was held by the Supreme Court the owner was not liable for such taxes, and at the same term of court a bill in chancery was filed against him, in the name of the People, to enforce the statutory lien for such taxes, which bill was dismissed by the circuit court, and that decree was after-wards affirmed in the Supreme Court. Other matters are set up in the answer, but it is not necessary to state them to an understanding of the questions of law discussed. Should it appear to be important to do so, other facts will be stated in the brief discussion that is to follow. '

Before passing to the consideration of what is thought to be the real subject of the controversy, so far as the merits of the case are concerned, it may be well first to clear away all mere technical objections to the present decree. It is insisted the act of 1881, cited, that gives a court of equity jurisdiction to enforce the statutory lien for taxes in certain cases, can have no application to the case in hand, and the reason assigned is, it was the obvious intention of the General Assembly it should operate prospectively, and not retrospectively. So far as the act simply affords a remedy, it may be used or employed to enforce a preexisting right, as well as one subsequently accruing. It makes no difference when the cause of action arose,—the remedy, when given, may be availed of. The cases cited have no application to statutes giving a new remedy. A graver objection is, the act of 1881 not only gives a new remedy, but it creates a new lien. The suggestion is, it is broader in its terms than the original section (253), the place of which it takes. This, it is thought, is a misconception of the scope of section 253 of the act of 1872. That section, it is said, only made the “taxes” a lien, while the amendatory act of 1881 makes not only the taxes, but the “penalties, interest and costs, ” a lien upon the property assessed. It is a mistake to suppose section 253 of the act of 1872 did not make “penalties, interest and costs,” as well as the tax itself," a lien upon the property. It is true it is provided in section 253, “taxes” assessed on real property shall be a lien on it until paid, and that the words “interest, cost or penalty” are not used in that section. But by a definition contained in the same act, (section 292, division 14,) the word “tax” or “taxes, ” .when used in that act, is made to include “cost, interest or penalty” imposed on property. In this respect the act of 1872, (section 253,) and the act of 1881, mean precisely the same thing. No new lien is created by the latter act. It will be perceived, on examining the decree, that no penalties, interest or costs are allowed on the taxes assessed prior to the time the act of 1872 took effect.

The position taken that the questions made on this record are res jvdieata, has nothing in its support. An action was commenced at law, in the name of the People, against defendant, to recover a personal judgment against him for these identical taxes, penalties, interest and costs, and it was held by this court- that he was not personally liable for the same. The question whether the property itself was subject to the burden of the taxes, penalties, interest and costs adjudged against it by the county court was neither discussed nor decided. It is also true a bill was filed in a court of chancery to enforce the lien given by the statute for these identical taxes on this property, and that it was dismissed for want of jurisdiction in a court of equity to entertain such a bill. Since then the legislature, by the act of 1881, has given equity jurisdiction in such cases, and the bill may now be entertained.

Coming now to consider the merits of the controversy, no objection seems to be made that the property in the hands Of the present owner is not liable for the unpaid taxes since 1871, and including that year, and up to and including the year 1877. Since then the current taxes have been paid by the owner. It appears a large portion of the sum found by the decree of the circuit court to be due on the property, consists of “penalties, interest and costs” imposed for the non-payment of the taxes imposed on the property since the act of 1872 took effect. Nothing, prior to that time, was •added to the taxes as “penalties, interest and costs, nor was any personal decree rendered against defendant on account of these taxes. It is the “penalties, interest and costs” included in the decree against the property ordered to be sold, that are said to be without sanction of law, and therefore wrongfully included in the decree. In the first place, it may he observed this is not a case where a tax assessed on property liable to taxation is prevented from being collected for any year or years on account of any erroneous proceedings, and hence section 277 of the' Revenue law, cited, has no application. The ease rather falls within the operation of sections 129 and 229 of the Revenue act now in force, which authorize the imposition of penalties, interest and costs, and provide for the collection of the same, with back taxes. Section 129, it will be observed, declares that in all cases where any real property has heretofore been or may hereafter be forfeited to the State, it shall be the duty of the county clerk, in making up the amount of tax due on such real property for the current year, to add the back taxes, with interest, penalties and printer’s fees, at a certain rate therein stated, and section 229, as amended, by the act of 1881, provides when and how the same shall be collected. The statute limits the remedy in equity for the collection of taxes by foreclosure to cases where the “taxes for two or more years, upon the same description of property, shall have been forfeited to the State.” Hence the inquiry suggested becomes important, is the property in question that which is properly classed as forfeited property, within the meaning of section 129, cited. Unless it is, it is quite evident a court of equity has no jurisdiction. It is insisted there was no legal forfeiture of the property to the State for the years for which it is charged taxes are due, and the reason assigned is, there were no valid judgments against the property for any of those years for the taxes due thereon. That, in the opinion of the court, is not now a subject of inquiry. At the May term, 1879, of the county court, the owner appeared and objected to judgment against his land for the year 1878 and prior years. In the second objection of the series filed, the owner protests against the entry of judgment for the years 1871 to 1877 inclusive, because for each of those years there was no legal forfeiture of the land, and the clerk had no right to place it on the tax books for either year mentioned, for the “reason that the several tax sales were made under pretended judgments for taxes for said years without any process, as required by law. ” It seems the objections made by the owner were in part sustained, and the court reduced the amount claimed to be due on the land for taxes, penalties, interest and costs, from $7503.93 to $5163.26, and rendered judgment against the land, over the objection of the owner, for the latter sum. Judgment was also rendered against the property, in 1880, for the current taxes and back taxes, with penalties, interest and costs thereon. In 1881 the owner again appeared in the county court, objected and defended against any judgment against this same property, but the court, after hearing evidence, overruled .the objection, and rendered judgment against the land for current taxes and back taxes, with penalties, interest and costs thereon, in the sum of $6408.18.

Beal property is forfeited to the State when, at any regular tax sale under the Bevenue act, the collector shall offer the property for sale, and it shall not have been sold for want of bidders. In The People v. Smith, 94 Ill. 226, it was ruled that on application for judgment against lands for taxes it is not important to inquire whether the judgments for taxes for the previous years were in strict conformity with the statute, and that under the statute relating to the revenue, where a forfeiture of the land has accrued to the State, the back taxes, with interest and costs, are to be added to the current taxes, regardless of the fact whether all the formalities required by statute have been observed prior to rendering the judgments as to the preceding years. The remedy, if any existed in such cases, was by appeal from such judgments. In Belleville Nail Co. v. The People, 98 Ill. 399, it was held forfeited land was subject to “penalties, interest and costs, ” under the 129th section of the Bevenue act, when such land had in fact been forfeited, whether in due form or not. The principles of the cases cited must control the present decision. The land in question was in fact forfeited to the State for every year prior to and including 1877, for which the property is charged with back taxes, and with penalties, interest and costs, and it is unimportant whether the judgments under which the land was offered for sale conformed, in every respect, to the requirements of the statute. It was so expressly decided in Belleville Nail Co. v. The People, supra.

No objection whatever is urged against the validity of the tax judgments against the property for the years 1879, 1880 and 1881. The owner appeared in the county court when application was made by the collector for judgment against delinquent lands, and defended on the merits as to the validity of the taxes charged against his property. Such judgments are valid and conclusive against the owner, and must stand, unless reversed on appeal or error, or impeached for fraud. Graceland Cemetery Co. v. The People, 92 Ill. 619.

The point is made there could be no valid forfeiture of the property for taxes under the judgments for taxes for the years 1878, 1879 and 1880, because the owner paid the current taxes for those several years. It is to be observed section 229 of the Revenue law provides the amount due on lands forfeited to the State and remaining unpaid on the first day of November, shall be added to the taxes for the current year, and the amount thereof shall be reported against the collector with the amount of the taxes for that year. That was done in this case; but it was not until long after the taxes, with penalties, interest and costs, had been “added” to the taxes of those several years, that the owner paid the current taxes. It would be singular, indeed, if the owner of lands owing back taxes could, by paying the current taxes, avoid a forfeiture of his land for back taxes, and thus escape all penalties, interest and costs imposed by statute to secure prompt payment of taxes. That would be a mere evasion of the statute, which the law will not tolerate.

A careful consideration of all the objections taken shows no substantial defence either to the back taxes or to the penalties, interest and costs charged against defendant’s land, nor has the defence sought to be made any equitable considerations in its support. All these taxes were an incumbrance on the land when he bought it, and by the acceptance of the deeds containing a clause so providing, he expressly agreed to pay all taxes and assessments, both general and special, levied and assessed on the property prior and up to the date of the deeds. It is both equitable and legal the property should be charged with the back taxes, and with the penalties, interest and costs thereon, as is done by the decree.

The decree of the circuit court will be affirmed.

Decree affirmed.