text:
    John S. Barton v. The Farmers and Merchants’ National Bank.

      Filed at Mt. Vernon September 28, 1887.

    1. "Usury—agreement to pay attorney's fee—penalty for non-payment at maturity, in excess of legal rate of interest. Section 6, of chapter 74, of the Bevised Statutes, entitled “Interest," after fixing the rate of interest which might be contracted for, at eight per cent, provides: “And all contracts executed after this act shall take effect, which shall provide for interest or compensation at a greater rate than herein specified, on account of non-payment at maturity, shall be deemed usurious, and only the principal sum due thereon shall be recoverable.”
    2. Under this statute, all penalties for non-payment at maturity, whether as additional interest or as compensation for the use of money, in excess of the legal rate of interest, are prohibited; but an agreement in a promissory note that, in the event the note is not paid at maturity, and shall be placed in the hands of an attorney for collection, the maker will pay a specified sum as attorney’s fee, the sum so stipulated to be paid not being interest or compensation on account of the non-payment of the principal sum and interest reserved, but intended only as indemnity to the creditor against actual loss from the failure of the debtor to keep his agreement, is not within the inhibition of the statute, notwithstanding the amount stipulated to be paid as such attorney’s fee, in addition to the rate of interest reserved, would exceed the legal rate allowed to be contracted for as interest.
    3. Same—consideration of promise to pay attorney’s fee. In such case, the making of the loan or extending the credit would be a good consideration for the promise by the debtor of indemnity in the way of an agreement to pay an attorney’s fee, as was provided.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    This was assumpsit, upon the following promissory note: “$300.00. Vandalia, III., December 10, 188á.

    “Six months after date, for value received, we, or either of us, promise to pay to the order of the Farmers and Merchants’ National Bank of Vandalia, $300, with interest at eight per cent after maturity. If this note is not paid when due, we agree to pay an attorney’s fee of $30, if placed in the hands of an attorney for collection. John S. Barton,
    W. L. Ballinger, Benjamin Buckmaster.”
    Judgment was recovered for the principal and interest, the trial court excluding the $30 reserved for attorney’s fee, although it appeared in evidence that the note was not paid at maturity, and was placed in the hands of an attorney for collection, and at the same time the fee of $30 was paid to him by the plaintiff. On appeal, the Appellate Court reversed that judgment, and on the appeal of the defendant below the case is brought to this court. The question whether the agreement to pay the attorney’s fee was usurious, is the one presented.

      Messrs. Webb & Cox, and Mr. W. M. Fogler, for the appellant :
    The promise to pay an attorney’s fee renders the note usurious. The promise to pay $30 attorney’s fee is wholly without consideration, and is therefore void. Peyson v. Cole, 50 Am. Rep. 451; Bullock v. Taylor, 39 Mich. 137.
    The enforcement of Barton’s promise to pay the $30 attorney’s fee, is contrary to sound public policy, and is therefore void. Thomasson v. Townsend, 10 Bush, 114; Garr v. Banking Co. 11 id. 189; Rilling v. Thompson, 12 id. 310; State v. Taylor, 10 Ohio, 378; Witherspoon v. Musselman, 14 Bush, 214; Dow v. Updike, 11 Neb. 95.
    Barton’s promise to pay the attorney’s fee is within the prohibition of section 6, chapter 74, of the statute relating to-interest. Archibald v. Moore, 5 Bradw. 433.
    ■ Mr. B. W. Henry, and Mr. S. A. Prater, for the appellee:
    The appellant insists that the contract for an attorney’s fee included in the note in this case is void per se; that it is usurious, against the policy of the law, without consideration, and in contravention of section 6, chapter 74, relating to interest..
    The question as to whether or not such contracts are void per se, has been adjudicated in several of the States, and while there is some conflict of .authorities, the weight of opinion seems to be decidedly in favor of their validity. Smith v. Silvers, 32 Ind. 321; Johnson v. Crossland, 34 id. 512; Tuly v. McClung, 67 id. 10; Parham v. Pulliam, 5 Coldw. 497; McGill v. Griffin, 32 Iowa, 445; Williams v. Meeker, 29 id. 292; Huling v. Drexel, 7 Watts, 126; Imler v. Imler, 94 Pa. St. 371; Miner v. Bank, 53 Texas, 559; Peyser v. Cole, 11 Ore. 39.
   Mr. Justice Shope

delivered the opinion of the Court:

By the contract it was agreed that if the note was not paid' when due, an attorney’s fee of $30 was to be paid by the maker if the note was placed in the hands of an attorney for collection. The declaration avers the non-payment at maturity, the placing of the note in the hands of an attorney for collection, and the payment by plaintiff of $30, as a fee to said attorney for his services therein.

It is apparent that the cases of Nickerson v. Babcock, 29 Ill. 497, and Easter et al. v. Boyd, 79 id. 325, where it was held that an attorney’s fee could not be recovered, because, by the contract, it was not due when the suit was brought, can have no application here. In this case, if recoverable at all, it became due, by the terms of the contract, when, after nonpayment at maturity, the note was placed in the hands of an attorney for collection.

It is contended that the promise to pay such attorney’s fee is, first, usurious; second, wholly without consideration; third, its enforcement would be contrary to sound public policy; and fourth, that it is within the prohibition of section 6, chapter 74, of the statute.

If enforcing this promise to pay an attorney’s fee would directly or indirectly have the effect of giving the payee, or of requiring the payor to pay, a greater compensation for the loan, use or forbearance of the money than is allowed by law, then, unquestionably, the contract would be usurious. The law will not tolerate any shift or device to evade its provisions. The sixth section, chapter 74, provides that “all contracts executed after this act shall take effect, which shall provide for interest or compensation at a greater rate than herein specified, on account of non-payment at maturity, shall be usurious.”' It therefore follows, that if the $30 stipulated to be paid is interest or compensation on account of the non-payment of the principal sum and interest reserved, then the contract would be usurious, and should be so held. On the other hand, if this portion of the contract gives to the creditor no additional interest or compensation, or provides no penalty for the nonpayment of the note, but is intended only as indemnity against actual loss to the creditor from the failure of the debtor to keep his agreement, we are unable to perceive upon what principle he should be debarred from requiring it as a condition to the extension of the credit, or of enforcing it to an extent necessary to save himself from actual loss, in the contingency of loss occurring to him by the default of' the other party to the contract.

By the statute, all penalties, whether as additional interest, or as compensation for the use of the money, are prohibited; but where, as here, no additional or new compensation is provided for, and the contract is only for such sum. as the payee would be obliged to expend in compelling the maker to perform his undertaking, the statute contains no inhibition upon the power of the parties to contract that the same shall be paid by the party whose default occasions the necessity for the expenditure.' In this view we are sustained by the authority of very many courts of the highest respectability.

Upon the question as to whether contracts of this nature are void, as against public policy, this court, as well as those of other States, is also fully committed. In Clawson v. Munson, 55 Ill. 394, Dunn v. Rodgers, 43 id. 261, McIntire v. Yates et al. 104 id. 491, and other cases, contracts of this character have been upheld and enforced by this court. The right of the parties to thus contract has been expressly recognized, and when the contract has been for such reasonable attorney’s fees only as would indemnify and preserve the payee from loss, and was due at the time.of suit brought, this court has in every case .sustained the plaintiff’s right of recovery. See, also, Imler v. Imler, 94 Pa. St. 71; McGill v. Griffin, 32 Iowa, 445; Huling v. Drexell, 7 Watts, 126; Pacer v. Cole, 11 Ore. 39; Smith v. Silvers, 32 Ind. 321; Tuley v. McClung, 67 id. 10.

Nor do we see anything in the section of the statute quoted that would change the rule. Thereby the parties are prohibited froip. contracting for interest or compensation to be £aid to the payee on account of non-payment of the principal debt at maturity. In Archibald, et ad. v. Moore, 5 Bradw. 432, the note' provided, that if it was not paid when due, it should thereafter draw interest at the rate of two per cent per month, as liquidated damages, and it was very properly held, that if the provision for the payment of two per cent per month if not paid at maturity was divisible from the note proper, so as that the note might be held to be untainted with usury, and the provision for the two per cent regarded as a means of insuring prompt payment of the note at maturity, the agreement to pay the two per cent per month would, nevertheless, under the statute, be usurious and unlawful. It is apparent, there the agreement fell directly within the statute.

The agreement here provides for no new or additional compensation or interest for the use of the money because of the failure to pay at maturity. It is not in the nature of a contract for additional interest, but a provision merely against loss or damage to the payee, specifically pointed out, and which will necessarily result if the debtor fails to fulfill his undertaking ; and there is no reason why he may not contract to bear the loss occasioned by his own default. It is apparent that the payee must not derive any benefit from the amount agreed to be paid, and the amount contracted for must be only such reasonable sum as will save him from loss in consequence of the default of the maker. It is not pretended, here, that the amount agreed to be paid was unreasonable, or that the payee derived any benefit whatever therefrom. On the contrary, it is shown to be reasonable, and the whole amount was paid to the attorney for his services in the proceedings to collect the note.

The right of the payee to require the indemnity against loss, and the right of the maker of the note to contract to secure the payee against the same, necessarily dispose of the objection that the promise was without consideration. If, while the creditor may not contract for more than the legal interest for the use of his money, or for additional compensation or interest for the non-payment of the note at maturity, he is not debarred from requiring, as a condition to making the loan or extending the credit, that he should be secured against expense occasioned by the default of the debtor, it follows, that the making of the loan or extension of the credit would be a good consideration for the promise of indemnity by the debtor.

We see no error in the judgment of the Appellate Court, and it will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Illinois and St. Louis Railroad and Coal Company et al. v. Madison T. Stookey, Collector.

      Filed at Mt. Vernon September 28, 1887.

    1. Taxation—rule of uniformity—as applicable to railroad property assessed by the State Board of Equalization, and other property assessed by the local assessors. The State Board of Equalization having made an assessment of certain railroad property at about its cash value, the local officer extended the tax upon the basis of such valuation. The other property in the same locality was assessed for the same year, by the local assessor, at only about one-third its cash value. The railroad company sought to enjoin the collection of so much of the tax as resulted from the excess in valuation of its property over that of individuals. The contention of the company was, that by reason of the unequal valuation it would be required to pay a tax largely in excess, in comparing actual values, of individuals in the same locality, and this in violation of the rule of uniformity prescribed in the constitution. But the relief sought was denied.
    2. Same—former decisions. The railroad company invoked in support of its contention in that regard, the rule announced in Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229, and Chicago and Northwestern Railway Co. v. Boone County, id. 240, that where the property belonging to individuals in a particular locality has been assessed at less than its cash value, the constitutional rule of uniformity forbids that the property of a railroad company situate in the same locality should be assessed upon any greater per cent of its value than that of individuals. Without inquiring whether the constitutional provision in question was properly applied in those cases, it was considered that it has no application to the circumstances of the present ease.

      3. Same—assessments by the local assessor and by the State board—as to the respective rates. In this case the property of the individuals was assessed by the local assessor, and that of the railroad company by the State Board of Equalization, each acting under a statute not in conflict with the constitution, and which required that all property should be assessed at its fair cash value. The mere fact that the local assessor did not comply with the law in that regard could not operate to invalidate the assessment of the State board, which was in compliance with the law.
    4. Same—assessment by the State board—whether subject to review. Moreover, an assessment of railroad property for taxation by the State Board of Equalization is conclusive, except where fraud has intervened.
    5. Same—valuation of rail/roadproperty, as returned by the compa/ny— whether binding on the State board. The State Board of Equalization, in the assessment of railroads, is not bound by the valuation fixed upon its road, etc., by the company, and a slight error in judgment on the part of the board, in the valuation of such property, there being no fraud or corruption shown, affords no ground for enjoining any part of the taxes levied on such valuation.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for the appellants:
    Section 1, article 9, of the constitution, requires that when a tax is levied by valuation, it shall be levied “so that every person and corporation shall pay a tax in proportion to the value of his, her or its property.” Bureau County v. Railroad Co. 44 Ill. 229; Railway Co. v. Boone County, id. 240.
    Mr. R. W. D. Holder, State’s Attorney, for the appellee:
    The cases cited have no application here. Those decisions were made under a law giving an appeal from the assessment. The fact that the local assessors may assess property at one-third its cash value will not require the State board to adopt the same basis.
    The objection that the State Board of Equalization increased the valuation fixed by the schedule of the lessor of appellant, is entitled to no consideration. This court has repeatedly held that the assessor, or other body that has been provided by the legislature for fixing the valuation of property for the purpose of taxation, has the sole and only authority to fix such valuation. Spencer v. People, 68 Ill. 512; Railroad Co. v. Surrell, 88 id. 535; People v. Iron Co. 89 id. 116; Insurance Co. v. Pollak, 75 id. 292; Humphreys v. Nelson, 115 id. 45; Mix v. People, 116 id. 265; Railway Co. v. People, 119 id. 182.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 7th day of August, 1886, the Illinois and St. Louis Railroad and Coal Company exhibited its bill in the circuit ■ court of St. Clair county, against Madison T. Stooicey, treasurer and ex officio collector of said county, to enjoin him from collecting a portion of the taxes of 1885, which had been assessed against the complainant, as assignee of the Venice and Carondelet railway. The circuit court sustained a general demurrer to the bill, and entered an order dismissing the same, to reverse which this appeal is brought.

The bill shows that the railway in question lies within the townships of East St. Louis and of Centerville Station, in St. Clair county, and it is charged that the taxes for the year 1885 are based upon an assessment of the road by the State Board of Equalization at a fraction over its full cash value, whereas all other property within these townships not assessed by the State board, was valued and assessed by the town assessors, for the same year, at about one-third its cash value, and that the same was taxed upon that basis. Such being the facts, it is contended that the tax, to the extent complained of, is violative of the provision of the constitution requiring uniformity in taxation, and in support of this view the cases of Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229, and Chicago and Northwestern Railway Co. v. Boone County, id. 240, are cited.

Without stopping to inquire whether the constitutional provision in question was properly applied in those cases, it is sufficient to say, that, in bur opinion, it has no application to the circumstances of the present case. There is no claim, nor is there any ground for the claim, that the provisions of the statute governing assessments, whether made by town assessors or the State Board of Equalization, are in conflict with the constitution. The statute requires all property to be valued and assessed, for purposes of taxation, at its “fair cash value.” (Revenue act, secs. 3, 4.) This requirement, however, is nothing more than what the law would imply without it, for a simple, unqualified direction to value property, by its very terms imposes the duty of ascertaining and declaring its cash value. While the appellant, as a basis for taxation, scheduled the road at $44,880, which was intended to represent half its value, only, yet it is admitted in the bill that the total value of the railway was $100,000, being only $5150 less than the valuation placed upon it by the board of equalization. When it is considered that values rest so largely in mere opinion, about which men of equal intelligence and honesty often materially differ, this small difference between the road’s conceded value and its estimated value by the State board, is not at all surprising, and is clearly not of sufficient consequence to justify the present proceeding.

The taxes complained of were extended upon this valuation in strict conformity with the statute, and this is expressly so declared in the bill. It follows, therefore, that if any wrong has been done, it was by the town assessors, and not by the State board. The law required the State Board of Equalization to value the property at its fair cash value, and the taxes for that year to be extended against it upon that valuation." All this was done in substantial conformity with the requirements of the statute, yet the action of the board is assailed, and the tax is in part sought to be set aside, simply because the town assessors probably failed to perform their duty in respect to the assessment of other property in the townships.

The appellant, in effect, says the board should have disregarded this law because the town assessors had done so in the assessment of the other property in the two townships. This view of the matter we do not regard as sound. Valuations for purposes of taxation had necessarily to be left to the judgment and determination of some human tribunal. The legislature in its wisdom has confided this duty and trust, in the case of railroad property like the present, to the State Board of Equalization, and that its action in the premises was intended to be final, except where fraud or corruption has intervened, is evidenced by the fact that no appeal from its determination is provided. As was said in the late case of Connecting Railway Co. v. The People ex rel. 119 Ill. 182: “Under the statute, the valuation for taxation of the property here affected is committed to the State Board of Equalization. No appeal lies from its decision to the county court, when acting on applications for judgment for delinquent taxes, or at any other time. Its decision is judicial in its nature, and it can therefore be assailed for fraud or want of jurisdiction only.” To the same effect are the eases of Spencer et al. v. The People, 68 Ill. 513, and Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 id. 561.

The bill in this case does not disclose any facts whatever to sustain the charge of fraud found in it. That the board was not bound by the valuation fixed by the company is no longer an open question, and need not be discussed. Spencer et al. v. The People, supra; Republic Life Ins. Co. v. Pollak et al. 75 Ill. 292; Humphreys et al. v. Nelson, 115 id. 45.

In short, we do not think, under the facts disclosed by the bill, the court had any power or jurisdiction to review the action of the State Board of Equalization, or to grant the relief prayed.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Magruder

text:
    The People of the State of Illinois v. John H. Nedrow.

      Filed at Springfield September 27, 1887.

      1. Fees and salaries—“fines or forfeitures” as including penalties— the statute construed. The words, “fines or forfeitures,” in section 8, of •chapter 53, relating to fees and salaries, as amended in 1883, are broad •enough to include penalties for violation of law, the word “fine” and the word “penalty” being often used interchangeably, to designate the same "thing.

      2. Same—State’s attorney’s lien on penalty under the Pha/rmacy act. 'State’s attorneys have a lien for their fees upon judgments for the penalties named in the Pharmacy act, as well as upon judgments for other penalties, fines or forfeitures, and it is made their duty to prosecute suits for the collection of such penalties.
    3. And as respects the question of the existence of the lien, it matters not that the State’s attorney at whose instance the lien is declared was not the officer who did the most of the work in the case in which the penalty •was recovered. As to whether that officer is entitled to the lien, or his predecessor is entitled to it, does not concern the board of pharmacy. The lien -exists in favor of the officer.
    Appeal from the Appellate Court for the Third District;— heard in that court on an agreed case from the Circuit Court •of Adams county; the Hon. William Maesh, Judge, presiding.
    Mr. E. S. Smith, for the appellant.
    Mr.- Oscar P. Bonnet, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

The simple question in this case is whether district attorneys in this State have a lien for their fees upon the penalties mentioned in the 15th section of the Pharmacy act.

The 12th section of that act, entitled “An act to regulate the practice- of pharmacy in the State of Illinois,” (Hnrd’s Bev. Stat. chap. 91, p. 815,) provides, that “any person not being or having in his employ a registered pharmacist, within the meaning of this act, who shall * * * keep a pharmacy or store for retailing or compounding medicines * * * shall, for each and every such offence be liable, to a penalty of $50.” John H. Nedrow, the appellee herein, was prosecuted for a violation of the portion of said section so as above quoted before a justice of the peace of Adams county, and a judgment was recovered against him for $50 on October 3, 1883. He appealed to the circuit court of that county and,, after trial before a jury at the January term, 1884, a verdict of not guilty was returned and judgment entered in his favor. The People took an appeal to the Appellate Court, and, there, the judgment of the circuit court was reversed on January 16, 1885, and the cause remanded to the circuit court. After it had been placed upon the docket for trial at the October term, 1885, of said court, Nedrow dismissed his appeal from the justice of the peace to the circuit court, and paid into the hands of the clerk of the circuit court the $50 so recovered by the People against him before the justice. The clerk now holds the money to be disposed, of according to law.

On May 29, 1886, the People by the State’s attorney, moved for a rule on the clerk to pay the money to the State’s attorney. The board of pharmacy entered a cross-motion for a rule upon the clerk to pay the fine to the board of pharmacy. The circuit court overruled the cross-motion and sustained the motion of the People, entering an order that the clerk pay the $50 to Oscar P. Bonney, State’s attorney. At the request of said board, it was further ordered, that the questions involved should be certified to the Appellate Court for the Third District, in pursuance of the statute in such case made and provided and the stipulation as to facts therein filed, the People assenting thereto.

The board of pharmacy appealed from the judgment of the circuit court, and the questions involved were certified to the Appellate Court, which, after considering the cause upon the agreed case so certified, affirmed the judgment of the circuit court.

By the stipulation of the parties it was agreed that Mr. Bonney was not the State’s attorney of the county when the case was tried before the justice, nor when it was tried on appeal before the circuit court, nor when it was heard before the Appellate Court, but was such State’s attorney when the remanding order from the Appellate Court was filed in the circuit court and when Nedrow dismissed his appeal from the justice; that, when the $50 was paid to the clerk, the unpaid fees due Bonney, as State’s attorney, exceeded $500, and that he does not claim the $50 as payment of fees earned in said cause, but claims it should be applied in liquidation of said unpaid fees to the extent of the amount of said judgment; that, if the State’s attorney should be entitled to the $50 or any part of it, the clerk shall be ordered to pay it to him; that, if the board of pharmacy should be entitled to the money or any part of it, the clerk should be ordered to pay it to the board; that either party might appeal without bond or bill of exceptions.

An appeal is taken to this court by the board of pharmacy from the judgment of the Appellate Court, the latter court certifying that the cause involves questions of law of such importance on account of principal and collateral interests, that the case should be passed upon by the Supreme Court.

The Pharmacy act was approved May 30, 1881, and went into force July 1,1881. Its 15th section is as follows: “All suits for the recovery of the several penalties prescribed in this act shall be prosecuted in the name of the ‘People of the State of Illinois’ in any court having jurisdiction; and it shall he the duty of the State’s attorney of the county, where such offence is committed, to prosecute all persons violating the provisions of this act upon complaint being made. All penalties collected under the provisions of this act shall inure, one-half to the hoard of pharmacy, and the remainder to the school' fund of the county in which the suit was prosecuted and judgment obtained.”

The 82d section of the School law (Hurd’s Eev. Stat. 1885, chap. 122, p. 1118,) which was in force at the time the Pharmacy act was passed and had been in force for many years, prior thereto, provided, that all fines, penalties and forfeitures imposed or incurred in courts of record or before justices of' the peace in this State, except those for trespasses on school lands and for violations of town and city ordinances, should be paid to the school superintendent of the county. The-Pharmacy act so far changed the existing practice as to provide that the school fund should only receive the benefit of' one-half of the penalties created by that act, while the other-half should go to the board of pharmacy.

The 8th section of the act concerning “fees and salaries”' (Hurd’s Eev. Stat. 1885, chap. 53, p. 614,) was amended in 1883, two years after the passage of the Pharmacy act. The-following words were added to that section by the amendment,, which was approved June 15, 1883, and went into force July 1,. 1883 : “State’s attorneys shall have a lien for their fees, on judgments for fines or forfeitures procured by them for their fees and earnings, until they are fully paid, and such payment shall operate as a release of the lien created by this act.”'

Although this amendment uses the words, “fines” and “forfeitures,” and does not make use of the word, “penalties,” yet there can be no doubt that the expression, “fines or forfeitures, is broad enough to cover and include the “penalties” referred to in the 15th section of the Pharmacy act. Bouvier, in his. Law Dictionary, defines a “penalty” as “the punishment inflicted by a law for its violation;” he says: “The term is-mostly applied to a pecuniary punishment.” He thus defines, a “fine“Pecuniary punishment imposed by a lawful tribunal upon a person convicted of crime or misdemeanor. It may include a forfeiture or penalty recoverable in a civil action.”' From these definitions it would appear that the word, “fine,”' and the word, “penalty,” are often used interchangeably to designate the same thing. They both mean “pecuniary punishment,” and may, in many cases, be regarded as equivalents of each other. One of Webster’s definitions of “forfeiture” is: “a fine or mulctand he refers to the words “fine, mulct, amercement, penalty” as being synonyms of the word “forfeiture.”

It follows that State’s attorneys have a lien for their fees, upon judgments for the penalties named in the Pharmacy act, as well as upon judgments for other penalties, fines or forfeitures. It is made their duty by the 15th section of. that act to prosecute all persons who violate its provisions. They are to conduct the suits for the recovery of the penalties, therein imposed, in the name of the People. By the 82d section of the School law they are to pay over the fines, penalties and forfeitures collected by them to the school superintendents after “retaining therefrom the fees and commissions allowed them by law.” By the 8th section of the “Fees and Salaries” act, both before and after the amendment thereto of 1883, the fees and ten per cent on moneys collected, as therein provided for, are to be paid out of “any fines and forfeited recognizances-collected by them.” The School law and the Fees and Salaries, act both recognize the policy of paying State’s attorneys out of fines and penalties and their right to compensation obtained therefrom.

In line with this legislation the amendment of 1883 gives them a lien for their fees on judgments for fines and penalties, evidently referring to all such fines and penalties as it is made their duty under the law to sue for and collect. Two years before the passage of the amendment it became their duty to sue for and collect the penalties imposed by the Pharmacy act. There is no conflict between the 15th section of the Pharmacy act, passed in 1881, and the 8th section of the Fees and Salaries act, as amended in 1883. By the latter the legislature-necessarily referred to other and previous legislation in regard to fines and penalties, without specifying the particular acts, which provided for the fines and penalties intended to be designated. There is no reason for supposing that they did not have in mind as well the Pharmacy act as any other act of existing legislation, which imposed penalties and made it the duty of State’s attorneys to institute prosecutions for their recovery.

There can be no good reason why the lien should not extend to the half of the penalty that is to go to the school fund. The school authorities are making no opposition to such a construction. The imposition of a lien for the fees of State’s attorneys upon judgments for such penalties as are to be paid to the school fund is in harmony with the legislative policy of the State, as will appear by reference to the enactments upon this subject, which have had their place in the statute books for many years. If the half of the penalty, which belongs to the schools, is to be subjected to the lien, it will not be contended that the half, which goes "to the board of pharmacy, should not also be so subjected.

It is true that, by the 11th section of the Pharmacy act, certain expenses of the board are to be paid from the fees and penalties received by it. But we can not see that there is anything in this provision which is opposed to the existence of the lien now under discussion. The reference is to the penalty received after the lien is discharged.

It appears from the stipulation that the present incumbent of the office of State’s attorney did not become connected with the suit for the recovery of the penalty until it was remanded by the Appellate Court and re-docketed in the circuit court. It is therefore argued, that the recovery of the penalty was not due to his exertions and that on this account it should not be paid to him. It is not shown, however, that his predecessor in office did not do his duty in the prosecution of the case; on the contrary, it is claimed that he did appear as counsel therein. The lien exists in favor of the officer. As to whether the district attorney, who did the most of the work in the case, or his successor, who took it up at a late date, is entitled to the lien, is a matter to be settled between them and which does not concern the board of pharmacy.

We think that the $50 should be paid to the State’s attorney to be held by him subject to his lien, and, upon the discharge thereof, to be paid by him one-half to the board of pharmacy and the other half to the school fund.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Shops, J., and Sheldon, Ch. J., dissenting.


author: Mr. Justice Scott

text:
    The Chicago and Alton Railroad Company v. Ralph M. Hoyt.

      Filed at Springfield May 12, 1887.

    1. FeI/IiOW-sebvants—who to be so regarded—as to locomotive engineer and car inspector. The servants of the same master, to be co-employes, so as to exempt the master from liability on account of injuries to one re-suiting from the negligence of another, must be directly co-operating with each other in a particular business,—that is, in the same line of employment,—or their mutual duties must bring them into such habitual association that they may exercise a mutual influence on each other promotive of proper caution.
    2. It was the duty of a car inspector to inspect freight cars on their arrival at the yards of the company. As soon as a train arrived the superintendent of that department directed the inspector to go upon the cars and begin the work of inspection, which he did on this occasion as soon as the train came to a full stop, and when about to step from one car to another, the engineer, without warning', suddenly started the engine with such unusual force that the train parted, and the inspector fell upon the track and was injured. The proof showed that when a freight train came to a certain place, as it did on the particular occasion, the engineer’s duty' in respect to the train ceased, and it was his duty to take his locomotive to-the engine house, and after the inspection the train would be broken up by a switch-engine and set apart: Held, that the engineer and inspector were not fellow-servants engaged in the same employment, and that the railway company was liable for the injury to the inspector, he having been found, to have exercised due care.
    3. In such case, the duties of the engineer ceased at or before the-inspector’s began, so that it was impossible for the one to have exercised any influence whatever over the other, and therefore an instruction based upon the theory of their being fellow-servants was properly refused.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. 0. T. Beeves, Judge, presiding.
    Messrs. Williams & Capen, and Messrs. Fifer & Phillips, for the appellant:
    The common master is not liable to an employe for an injury received from the negligence of another employe in the same line of service, if the master has used reasonable care in the selection of his employes, and provided one servant does, not represent the master as to the other servant. Honner v. Railroad Co. 15 Ill. 550; Railroad Co. v. Cox, 21 id. 20; Railway Co. v. Troesch, 68 id. 545; Railway Co. v. Durkin, 76 id. 395; Railway Co. v. Swett, 45 id. 197; Railway Co. v. Taylor, 69 id. 461; Railway Co. v. Moronda, 93 id. 302; Railroad Co. v. Keefe, 47 id. 108; Railway Co. v. Britz, 72 id. 256.
    Every person who undertakes to work in a dangerous employment, undertakes to and does assume all the ordinary risks of such employment. Railway Co. v. Donahue, 75 Ill. 106;. Railroad Co. v. Welch, 52 id. 183; Railway Co. v. Flanagan,. 77 id. 365; Railway Co. v. Durkin, 76 id. 395; Cooley on Torts, 541, 551, 552, and cases cited.
    Fellow-servants of a common master in the same line of employment, are employes whose ordinary occupations in such employment bear such relations to each other that the careless or negligent conduct of one endangers the safety of the other, where neither of them is the representative of the master as to the other. Railroad Co. v. Murphy, 53 Ill. 336; Railroad Co. v. Hoyt, 16 Bradw. 237; Valtez v. Railway Co. 85 Ill. 500; Ryan v. Railway Co. 60 id. 17; Railroad Co. v. Keefe, 47 id. 110; Railroad Co. v. O'Bryan, 15 Bradw. 134; McAndrews v. Burns, 39 N. H. 117; Baird v. Pettit, 70 Pa. St. 447; Railway Co. v. Scheuring, 4 Bradw. 533; Railroad Co. v. Moranda, 93 Ill. 302; Coal Co. v. Jones, 86 Pa. St. 432; Randall v. Railroad Co. 109 U. S. 478; Wright v. Railroad Co. 25 N. Y. 562.
    Cases closely analogous to the one at bar, so far as the question of fellow-servants is concerned, are McCosker v. Railroad Co. 84 N. Y. 77; Collins v. Railroad Co. 30 Minn. 31; Gormley v. Railroad Co. 72 Ind. 31; Coon v. Railroad Co. 5 N. Y. 492; Holden v. Railroad Co. 129 Mass. 268; Sammon v. Railroad Co. 62 N. Y. 251; Vick v. Railroad Co. 95 id. 267; Bull v. Railroad Co. 67 Ala. 206; Railroad Co. v. Doyle, 60 Miss. 977; Railroad Co. v. Wachter, 60 Md. 395; Hughes v. Railroad Co. 27 Minn. 137; Railroad Co. v. Hammersley, 28 Ind. 371; Morgan v. Railway Co. (L. R.) 1 Q. B. 140.
    Mr. M. W. Packard, and Messrs. Stevenson & Ewing, for the appellee:
    Whether the appellee and the engineer were fellow-servants, is a question of fact, which is settled by the verdict. Moranda case, 108 Ill. 581.
    The case of Chicago and Western Indiana Railroad Co. v, Bingenheimer, 116 Ill. 226, on the question of negligence, is exactly in point with the case at bar.
    Cases similar to the one at bar, and illustrative of it, are Railroad Co. v. Bingenheimer, 116 Ill. 226; Railway Co. v. Ross, 112 U. S. 377; Railway Co. v. Moranda, 93 Ill. 302; Railroad Co. v. Powers, 74 id. 341; Railroad Co. v. May, 108 id. 288; Railroad Co. v. Bliss, 6 Bradw. 411; Railroad Co. v. Hoffman, 97 Ill. 287; Rolling Mill Co. v. Johnson, 114 id. 57.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Ealph M. Hoyt, in the circuit court of McLean county, against the Chicago and Alton Bail-road Company. It was brought to recover for personal injuries sustained by plaintiff, alleged to have been caused by the negligent conduct of defendant’s servants in charge of a freight train. The judgment rendered in the circuit court, in favor of plaintiff, was affirmed in the Appellate Court, and as the case comes before this court, only questions of law can be considered.

It seems plaintiff was employed in the yards of the company, at the station where the accident occurred, and had been for many years prior to the time he was injured. His duty was to inspect freight ears on their arrival at the yards. The evidence tends to show, and that fact will be regarded as proved, the superintendent of that department directed him to go upon the cars immediately upon their arrival, and begin the work of inspection. That custom plaintiff had observed for many years. On the morning of the happening of the accident, a freight train came into the yards, and immediately upon its coming to a full stop, plaintiff went upon the car next the engine and commenced his usual work of inspecting the ears, and was about to step from the second car to the third car, when the engineer, without warning, suddenly started his engine with such unusual force that the train parted, and plaintiff, falling on the track, received severe and permanent injuries. Plaintiff testified the “jerk” “was so violent it almost raised the car from the track.” On this branch of the case no question is made, nor can any be made in this court, against the finding of the jury that plaintiff was observing due care for his personal safety, and that it was the wrongful conduct of the engineer that caused the accident.

The defence insisted upon, both at the trial and in this court, is, that plaintiff, and the engine-driver, whose negligence is alleged to have caused the injury, were fellow-servants of a common master, and engaged in the same line of employment, and therefore there could be, in law, no recovery, on the principle one servant of a common master engaged in the same service can not recover for the negligence of his fellow-servant. The point raised was most definitely made at the trial by an instruction stating the law applicable to fellow-servants, and which, it is insisted, had it been given, and had the jury been controlled by it, would have secured a verdict for defendant. That instruction the court modified, and, as modified, counsel for defendant refused to have it read to the jury. So the case may be considered as though the court refused to give the instruction. Assuming, then, that the instruction, as asked, states the law in relation to fellow-servants accurately, the question arises, was the defendant prejudiced by the refusal of the court to give it. That involves the inquiry whether it is applicable to the facts, or, what is the same thing, does the question whether plaintiff and the engine-driver were fellow-servants, fairly arise in the case. A brief reference to the evidence will be necessary to a solution of the question.

There is evidence tending to show, and the facts it tends to establish will be regarded as proved, that when a train got to a certain place, as this one did that morning, “it is the usual thing for the engine to go to the round-house—that is the usual practice.” The switch-engine would then come and set the cars in the proper place. Of course, the engine-driver would be bound to obey the yard-master, and if he received a signal to move to another locality, no doubt he would be bound to observe it. But the evidence is full to the point, when the engine-driver came to a certain place and stopped the train, it “was his duty to go to the engine house.” One reason that is stated why plaintiff was required to go upon trains so soon as they should be stopped, to do the work of inspecting them, was, that after the train should be broken up by the switch-engine and set apart, it would be difficult to find those that had not been inspected, or to ascertain when the work would be completed.

Regarding these facts, which the evidence tends to establish, as having been found in favor of plaintiff, it seems clear the duties of the engine-driver in connection with the train ceased at or before the time it was plaintiff’s duty to go upon it to begin his work of inspection. On that hypothesis, how is it possible the engine-driver and plaintiff could be fellow-servants engaged in a common service ? Inspecting cars after they are delivered in the yards can have no relation or connection with the running of trains to distant points. It is not the same service at all. A car inspector, under such circumstances, is no more a fellow-servant with an engine-driver than any workman in the shops who may have assisted, in the first instance, in making the car. It was said by this court, in Rolling Mill Co. v. Johnson, 114 Ill. 57, that the servants of the same master, to be co-employes so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly co-operating with each other in a particular business,—i. e., the same line of employment,—or that their usual duties shall bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution. Adhering, as is done, to the correctness of the rule stated, it is clear the case in hand does not come within its operation. Plaintiff and the engine-driver were not engaged in the same business at all. It was distinct and wholly different, and had each continued in his particular business for any indefinite period, it is hardly probable they would have been brought into any relation where one might have exercised an influence over the other promotive of proper caution. In the very nature of the business each was engaged in, it was impracticable for one to have had any influence over the other promotive of proper caution, or otherwise. They were strangers to each other, and might have remained so for an indefinite time; so far as any"thing in their business relations would have brought them together. It is true they might have been fellow-servants in the strictest sense, and yet they might not have been associated an hour before the happening of the injury. What is meant is, if the parties continue to be engaged in a common service they will he habitually associated, so that they may •exercise any influence over each other promotive of common safety. That never could have occurred in this ease, for the ■obvious reason the duties of the engine-driver ceased at or before plaintiff’s would begin, so that it would he impossible for ■one to exercise any influence whatever over the other. The doctrine of the refused instruction could have no application io the facts of the case, and had the court given it, the effect would have been to direct the attention of the jury to an issue not really involved. There was therefore no error in refusing to give the instruction, and whether the modification made by the court was correct or not need not now be considered. So far as the law applicable to fellow-servants had or could have .any application to the facts of the case, it was stated with .sufficient fullness by the court in the instructions given. In the view taken, defendant was not prejudiced by the refusal ■of the court to instruct as it was asked to do.

As respects the fourth instruction of the series given for plaintiff, it may he it contains one or more expressions not entirely accurate; but in view of the facts, it can hardly be said it worked- any injury to defendant. There was but little, if any, contradictory evidence concerning the material facts upon which plaintiff’s right to recover rests. It is seen, plaintiff has a clear right of action, and the judgment in his favor •ought not to he reversed for a mere inaccurate expression in -an instruction given by the trial court, when it can he seen it ■did no harm.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed,.


author: Mr. Justice Scholfield

text:
    The St. Louis, Alton and Terre Haute Railroad Company v. The City of Belleville.

      Filed at Mt. Vernon June 20, 1887.

    1. Stbeets—vacating streets—by what authority — and of the mode. A public street or alley in a city can be vacated or closed only by the city council, and by it only upon a three-fourths majority vote of all the alder- , men authorized by law to be elected, to be taken by ayes and noes, and entered upon the record of the proceedings of the council or board.
    2. So a railway company, relying upon a resolution of the common council of a city vacating or allowing the closing of a portion of a public street, must see that such resolution or order has been adopted by the required vote, and entered upon the record of the proceedings of such common council. If such company closes up or obstructs a street not legally vacated, it may be held liable for the obstruction.
    3. Same—use of street by railway company—whether right exclusive, or jointly with the public. Where the joint use of a public street is granted to a railway company with the public, and its right is not exclusive in any portion thereof, the company may be properly convicted of a breach of an ordinance against obstructing streets and their crossings by locomotives and cars.
    4. An ordinance or resolution of a city appropriated certain streets to a railway company, “so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, etc., and other machinery and fixtures to be used or' employed by them in operating their said road, subject, however, to this proviso: that the same shall be occupied with as little detriment and inconvenience to the public as possible,” and requiring the crossings to be so graded as to make any embankments that should be made, no obstruction: Ueld, that this was but a provision for a joint use with the public having occasion to use the streets by other modes of travel.
    5. Estoppel-—how it may arise. It is of the essence of an estoppel vn pais, that the party having authority to act in the matter shall have knowingly done an act to influence the conduct of the other, and that the other must have acted on the faith of that act. A person having no authority to act, can not, by his conduct, estop others not responsible for his conduct.
    6. A city will not be estopped by the acts or promises of a committee of the city council or the acts of the city attorney, such committee being known to have no power to do the act which is sought to be affected by estoppel.

      7. Same—municipal Corporation—estoppel hy deed not accepted. If a municipal corporation may be subject to the doctrine of equitable estoppel, it can not be estopped by a deed to it of land for a roadway or street which it has never accepted or authorized to be accepted.
    8. So a deed of land to a municipal corporation, for public use as a street, without acceptance, confers no rights on the grantor and imposes no obligations or duties upon the grantee. Leaving such deed with a city attorney for the city does not give effect to the same, and he can not accept the same, on behalf of the city, by any act of his without the authority of the city council.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    This is an appeal from the judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county, convicting appellant of violating an ordinance of appellee, prohibiting owners of locomotives, cars, etc., to obstrucj; crossings, etc., of streets thereby. So much of the facts as is essential to an understanding of the case may be briefly stated, as follows:
    The road of appellant runs in a direction north-west and south-east, across Abend’s addition, crossing Richland, Spring and Illinois streets, which run north and south, and Sixth and Seventh streets, which run east and west. The railroad depot is located on Seventh South street, to the east of its junction with Spring street, and the appellant claims the right to the exclusive use of Spring street for its yards and necessary use. The appellant is successor of the Belleville and IUinoistown Railroad Company, and entitled to all its property, franchises, grants and privileges. The record shows that Spring street, and the next street west of the appellant upon Seventh street, was dedicated to the city of Belleville in 1849. In 1853, a resolution permitting the Belleville and Rlinoistown Railroad Company to use certain streets of the city, was adopted by the city council, which reads as follows: ,

      “Resolved by the city council of the city of Belleville, That the use of the following named streets in the city of Belleville, in Chandler and Abend’s addition thereto, be and the same are hereby appropriated to the Belleville and Illinoistown Railroad Company, so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, and other machinery and fixtures necessary to be used or employed by them in operating said road,—namely, High, Illinois, Spring, Richland, Race, South, Fifth, Sixth and Seventh South streets, and such alleys in said Chandler and Abend’s addition as are crossed by said .railroad track: Provided, that the same shall be occu:
    pied with as little detriment and inconvenience to the public as possible; and if said railroad shall find it necessary in crossing any of said streets, to raise embankments across the same, the streets crossing said embanked streets shall be so graded as not to make their said embankments an obstruction to crossing the same.”
    Appellee introduced in evidence an ordinance prohibiting the obstruction of street crossings, etc., and appellant admitted on the trial, that it had obstructed Spring street before- the. commencement of the suit. Appellant claimed that that portion of Spring street within its yards had been vacated in 1852, and until that part of the addition to the city south of appellant’s road had been considerably built upon, no controversy had arisen between it and the public concerning the - use of Spring street. No action of the city council, entered of record, was introduced showing such vacation. It was also claimed by appellant, that several years before the commencement of the suit, the grounds south of the railroad having been fenced in, admitting of no passage from Spring street to Illinois street, complaints were made by persons who had acquired property and built houses south of the railroad, of the blocking of Spring street crossing by the railroad company, and the city council appointed a committee to confer with the railroad ■company and adjust the matter; that this committee met the officers of the company, and it was agreed that the railroad ■company should construct a roadway on its right of way for public use, from Spring street to Richland street, and should acquire property and open up a roadway from Spring to Ulinois street, and build a sidewalk, so as to afford convenient access from both streets to Spring street, and that the railroad company should continue in the use of Spring street; that this was reported to the city council; that the railroad company made the roadway on its right of way, to Richland street, and purchased property and opened up a way to Rlinois street, ■constructed the sidewalk, and the city took possession of the strip of land purchased by the railroad company, and improved ■and worked it as a street of the city; that the city afterward attempted to vacate so much of Spring street as was within the yards of the company, and published the ordinance as having been passed, sent a copy thereof to the railroad company, and the company executed a deed for the strip of land ■south of the railroad to the city, and delivered the same to. James M. Hay, the then city attorney; that this deed the -city attorney did not present to the city council, and it was subsequently lost; that the city having been sued for damages in regard to this crossing, the city attorney, Martin Schaefer, requested the company to execute another deed for this strip, which was done, and this deed, and the fact that the city had procured thereby other convenient access to this property to lot owners, was used by the city attorney as evidence in that suit. But the deed, when laid before the city council, was not accepted by it, and a resolution was adopted by the city reciting that the ordinance vacating the street was not passed legally by the council, and that the present council refused to pass that or any similar ordinance, and the clerk was therefore ordered to return the deed to the railroad company. The deed was returned to the railroad company.

      By agreement of parties, the cause was tried by the court without the intervention of a jury. Appellant asked the court to hold the following propositions of law, but the court refused, and appellant excepted:
    “First—If the city, by its officers or agents, induced the defendant to expend money in making a roadway from Spring to Bichland street on its right of way, for the use of the public, and to purchase land and open a way from Spring to Illinois street, upon the understanding and promise, expressed or implied, that the defendant, in consideration thereof, should have the right to use that portion of Spring street within its yards, for yard purposes, and said city took possession of the lands so purchased, and other lands-of the company, in pursuance to said understanding, and worked and used the same as a street, then said city is estopped from recovering a penalty from defendant for using such portion of Spring street for yard purposes, and the court ought to find the defendant not guilty.
    “Second—That the resolution or ordinance of the city council, of ....., A. D. 1853, is a license to the defendant, if it is the successor of the railroad company therein named, to use that portion of Spring street within its yards, for yard purposes, and the city can not recover a penalty for using said street for such purposes, even if it obstructs' the street there by such use, without first revoking said license, or giving the defendant notice that such use must be discontinued.
    “ Third—If the city accepted a deed from defendant for the strip of land mentioned in ordinance of city, of July 5, 1883, and used the same in defence of a suit brought against the city, and took possession of said strip of land, and worked the same as a street of the city, it is estopped from prosecuting defendant for a penalty.”
    Mr. B. A. Halbert, for the appellant:
    The question here presented is not whether the railroad company can take possession of a portion of a street for a private use, to the exclusion of the public, but whether it may use a portion of a street for a public use, and after it has laid out money at the instance of the city and its officers for such use, and the city has taken possession of and used, and still uses, property purchased for the use of the city, in order that it might so use the street, it can be prosecuted by the city for a penalty, under an ordinance which forbids the standing of cars upon the street, for any purpose, at any time.
    In a proceeding to oust the company of its depot, the question would not so much be as to whether the city had the power to grant a street for depot grounds, but whether, after having induced the company to build its depot in the street, the city would not be estopped from asserting it had no power to do so.
    The cases cited by the Appellate Court have no application to the real question. Stack v. East St. Louis, 85 Ill. 377, was a suit by an abutting owner to recover damages of the city, and not a suit by the city to recover a penalty. Quincy v. Jones, 76 Ill. 231, simply holds that the right to lateral support of adjacent soil is limited to the soil in its natural state. Jacksonville v. Railway Co. 67 Ill. 540, holds that the legislature can not grant the right to railroads to use property dedicated to the city for a public square. Railroad Co. v. Reich, 101 Ill. 158, was to test the right of a lot owner to recover damages for cutting access to his lot. In Chicago Dock and Canal Co. v. Chicago, 115 Ill. 115, it was held that the right to lay tracks in the street could be granted to the dock company, and that when laid and connected with railroads its use became public. The question of estoppel did not arise in either of those cases.
    Mr. M. W. Schaefeb, City Attorney, for the appellee:
    The settled doctrine of our Supreme Court, according to all the late cases, is, that a city holds its streets, alleys and squares in trust for the public, and has no authority to convert or divert them for other uses, or grant to any one an exclusive right to their use. City of Jacksonville v. Railway Co. 67 Ill. 540; City of Quincy v. Jones, 76 id. 231; Village of Princeville v. Auten, 77 id. 325; Stack v. City of East St. Louis, 85 id. 379; City of Morrison v. Hinkson, 87 id. 587; Railroad Co. v. Reich, 101 id. 157; City of Quincy v. Bull, 106 id. 337; Canal Co. v, Garrity, 115 id. 155; Parlin v. Mills, 11 Bradw. 402; Lee. v. Town of Mound Station, 118 Ill. 304; Dillon on Mun. Corp. (2d ed.) sec. 581.
    In permitting streets to be used for railroad purposes, the-city has no right to obstruct the streets and deprive the public and adjacent owners of their use. Morrison v. Hinkson, 87 Ill. 587; Railroad Co. v. Reich, 101 id. 157; Canal Trustees v. Havens, 11 id. 554; Quincy v. Bull, 106 id. 349.
    This is an action at law, and estoppels in pais are available-only in a court of equity. Stock Yards v. Ferry Co. 102 Ill. 514; Winslow v. Cooper, 104 id. 235.
    The cases cited by appellant sustain this principle. Logan County v. City of Lincoln, 81 Ill. 156; Martel v. East St. Louis, 94 id. 67; People v. Brown, 67 id. 467.
    The authorities cited by appellant all bear on the assumption that the city is seeking to entirely oust the company from any use of Spring street whatever, which is not the case.
    The ordinance was not passed by the requisite vote. The deed relied on as an estoppel was never delivered and accepted.. The city attorney was not authorized to accept it.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The only questions that we are at liberty to consider, are-expressed in the three propositions in writing, presented by-counsel for appellant to the circuit court, and asked to be held, to-be the law, for no question of law arose upon the trial in any other manner.

First—It is provided by section 1, chapter 145, of the Revised Statutes of 18Y4, that it shall require a three-fourths majority of all the aldermen of the city authorized by law to-be elected by such city, to vacate or close any street or alley, such vote to be taken by ayes and noes, and entered upon the record of the council or board. No other body or officers or persons have authority in the matter. The records are open to the inspection of the public, and it is incumbent on any one ' acting on the faith that a street or alley is closed, to know what is the fact, unless he shall be prevented by those having authority to act for the city, from obtaining such knowledge. ¿There is no evidence in this record tending to show that the railroad company was prevented by those having authority to act for the city, from learning whether this vacating ordinance was adopted by the requisite vote of aldermen. The railroad company is therefore presumed to have known that it was not so adopted, and hence that it was invalid and ineffective for any purpose.

The deed first made to the city was never accepted by the city council. Indeed, it was never presented to it, having been lost by the city attorney, in whose custody it was placed, and the second deed was expressly rejected by the city council. The city attorney had no authority to accept-the deed, and any use he made of it, not having been by the authority of the city council, is immaterial. It is of the essence of an estoppel in pais that the party having authority to act in the matter, shall have knowingly done an act to influence the conduct of the other, and that the other must have acted on the faith of that act. Davidson v. Young, 38 Ill. 145; Schnell v. City of Chicago, id. 382; Bigelow on Estoppel, 480.

No one pretends that a person having no authority to do an act can, by his conduct, estop others not responsible for his acts; and so here, no reason is shown why any reliance should have been placed by the railroad company upon the acts or promises of a committee of the council, which was known to have no power itself to vacate streets, or upon the conduct of the city attorney, who was known to be equally destitute of such authority. Even then, if the case is one wherein the doctrine of equitable estoppel might be applied, which is not conceded, the first proposition asked is clearly erroneous as applied to the facts, and the court properly refused to hold it.

Second—The ordinance of 1853 does not assume to license an exclusive occupancy of the street. It only assumes to authorize the railroad company to use the streets named, “so far as the said company may require to appropriate the same in crossing them, in the construction of their railroad track, switches, turn-tables, etc., and other machinery and fixtures, to be used or employed by them in operating their said road, subject, however, to this proviso: ‘That the same shall be occupied with as little detriment and inconvenience to the public as possible, and if said railroad company shall find it necessary, in crossing any of said streets, to raise embankments across the same, the streets crossing said embankments shall be so graded as not to make their said embankments an obstruction to crossing the same.’ ” This is but a provision for a joint use with that portion of the public having occasion to use the streets, adopting other modes of travel. (Pittsburg, Fort Wayne and Chicago Railroad Co. v. Reich, 101 Ill. 157.) And the streets being open still for general public use, the ordinance prohibiting their obstruction is within the municipal power. Illinois Central Railroad Co. v. Galena, 40 Ill. 344; Toledo, Peoria and Warsaw Railioay Co. v. Town of Chenoa, 43 id. 209.

Third—The facts clearly show, and there is no evidence tending to show otherwise, that the city did not accept the deed of appellant, as assumed in this proposition. The first proposition not being maintainable, there is no ground whatever upon which this can rest.

The legal principles enunciated in the opinion of the Appellate Court, (St. Louis, Alton and Terre Haute Railroad Co. v. City of Belleville, 20 Bradw. 580,) as well as the judgment rendered by that court, have our concurrence.

The judgment is affirmed. Judgment affirmed: '


text:
    Michael Sullivan v. The People of the State of Illinois.

      Filed at Springfield September 27, 1887.

    1. Criminal law—proof of the venue of the crime. It is not essential that the evidence shall directly and positively show that the offence of which one is charged was committed in the county. It will be sufficient if that fact is shown from the entire evidence. Proof that a crime was committed in Chicago, is proof that it was committed in Cook county, as the court will take judicial notice that Chicago is in Cook county.
    2. Practice—when specific objection should be made—as to admissibility of evidence. The objection to the admission of a record of a former conviction of one charged with crime, that the defendant is not identified ■as the person formerly convicted, should be specifically made on the trial, •so that it might be obviated by other proof. A general objection will not ■save the point in this court.
    Writ of Error to the Criminal Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. George H. Kbttblle, for the plaintiff in error:
    The record purports to contain all the evidence given on the trial below, and it does not appear affirmatively that the offence charged was committed in the county alleged in the indictment, Rice v. People, 38 Ill. 435; Jackson v. People, 40 id. 405.
    It does not appear affirmatively, from the evidence in this case, that the Michael Sullivan convicted of larceny on the 5th day of May, 1880, was the plaintiff in error. Without this ■evidence, the introduction of the record of the conviction of one Michael Sullivan on that day was an error. Something more is needed than the mere record evidence of the conviction of one Michael Sullivan, as the question of previous conviction involves that of identity, and this is an important question to be passed upon by the jury. 1 Bishop on Crim. Law, sec. 963; Hines v. State, 26 Ga. 614; Brooks v. Commonwealth, 2 Rob. (Va.) 845.
    The mere fact of the same name won’t do, because there were many Michael Sullivans in Cook county, in May, 1880, the directory of the city of Chicago, alone, giving over twenty of that exact name. Of the many Michael Sullivans'living in Cook county in 1880, which was the one convicted of larceny on the 5th day of May, 1880, by the Criminal Court of Cook county, as alleged in the indictment ? The record in this case is silent upon this question, as well as the fact that the plaintiff in error was the Michael Sullivan convicted of larceny in the-Criminal Court of Cook county, on the 5th day of May, 1880.. 'Identity of name is not, by itself, when the name is common,, and when it is borne by several persons in the same circles of' society, sufficient to sustain a conclusion of identity of person.. 1 "Wharton on Crim. Ev. sec. 802.
   Mr. Justice Scott

delivered the opinion of the Court:

At a term of the Criminal Court of Cook county, Michael’ Sullivan was tried and found guilty of the crime of burglary, and his punishment fixed at twenty -years in the penitentiary. Two grounds of error are relied upon for the reversal of the judgment.

First—It is said, although the record purports to contain all the evidence given upon the trial, it does not affirmatively appear the offence charged was committed in the county alleged in the indictment. This, it is thought, is a misapprehension of the evidence. It is charged in the indictment, the offence of which defendant was convicted was committed in Cook county, and when all the evidence in the case is considered, that fact sufficiently appears. The prosecuting witness testified she lived on “Emerson avenue, formerly called-Ashley street,” and that the offence was committed in her house. One of the witnesses for the defence testified that she lived' near the prosecuting witness, at whose house the trouble occurred, and that she had lived on Emerson avenue twenty years and in Chicago twenty-seven years. This evidence, considered in connection with the affirmative fact that appears from the record the trial was had in Cook county, where it is alleged the offence was perpetrated, is sufficient to support the finding of the jury the offence was committed in the county of Cook, as alleged in the indictment. It is proved the offence was committed on “Emerson avenue,” and that it is a street in Chicago. Of course this court will take judicial notice that Chicago is in Cook county. Proof that a crime is committed in Chicago, is proof that it was committed in Cook county. On the whole record considered, not the slightest doubt remains the offence of which defendant was convicted was “committed in the county alleged in the indictment.”

Second—The prosecution gave in evidence the record of a former conviction of -Michael Sullivan, and that, it is said, was error, for the reason it does not affirmatively appear, from the evidence in the case, the Michael Sullivan formerly convicted was the present defendant. The objection taken to the admission of the record of the prior conviction was general. No particular objection was pointed out. The point now insisted upon should have been made at the trial.- Had it been made, then the objection to the admission of the evidence might have been obviated by proof at once,—otherwise defendant would have had the benefit of his objection. Defendant ought not to be allowed the benefit of an objection to the mere admission of evidence that he did not make or insist upon in the trial court.

Whether defendant is guilty of the crime as alleged against him, of course is a question of fact; and as the evidence touching that fact is conflicting, this court would not feel warranted in reversing the finding of the jury except for the strongest reasons. There is evidence, if the jury believed it, that would warrant the verdict. On a full consideration of the evidence it can not be fairly said the verdict is so much against the weight of the evidence it ought to he set aside. It was the province of the jury to find whether defendant was guilty or not, and the court before whom the cause was tried having approved the finding by rendering judgment on the verdict, that judgment should not now be reversed unless it plainly • appeared the finding of the jury was so much against the weight of the evidence as to do injustice.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Shope, dissenting.


text:
    Mary Clark et al. v. Jacob P. Clark.

      Filed at Springfield September 27, 1887.

    1. Specific! performance—parol agreement to convey land—whether established. The specific performance of a parol contract for the sale of land will not be enforced by a court of equity, unless, in addition to other requirements, such contract is established, by competent proof, to be clear, definite and unequivocal in its terms.
    2. Testimony given years after alleged conversations as to what a father said about his intention to give or deed his son a farm, or as to his statements of what he told his son upon that subject, does not establish a clear, definite and unequivocal contract between the father and the son. A court of equity will not execute the expressed intention and expectation of a father to give his son a farm, unless such intention and expectation have ripened into and become embodied in a definite agreement.
    3. A father rented a farm to his son in 1878 at a low rent, and the son being dissatisfied, in 1880 threatened to leave the place and go elsewhere, but afterward gave up that intention and continued to occupy the same, making some very trifling improvements for his own benefit, still paying the. same rent, until his father’s death, after which he rented the place of the devisee of his father. The proof showed that the father had several times stated that he had given, or intended to give, the farm to him, the son not being present, except on one occasion, and it did not appear that the son ever held possession other than as a tenant. After his father’s death and his renting from the devisee, he filed his bill for specific performance of an alleged parol contract of his father to convey him the land, to which the Statute of Frauds was pleaded by answer, which also denied the contract: Meld, that the bill could not be maintained.
    4. Statute of Frauds—part performance. Acts relied on to show part performance will not operate to defeat the operation of the Statute of Frauds, unless they are done under the contract itself. If they might have been done with other views, they will not take the case out of the statute. It must appear that the party entered into possession of the land under the contract, and in performance of it, and that he was allowed to make valuable and permanent improvements under his contract of purchase, and not otherwise. If the acts are referable to a tenancy, they will not do.
    Appeal from the Circuit Court of McDonough county; the Hon. Charles -J. Scofield, Judge, presiding.
    Messrs. Prentiss & Bailey, for the appellants:
    Before the complainant can recover, he must prove, by competent evidence, a specific and well defined contract between himself and father, based on a valuable consideration, and that he has complied with the terms of the contract. Insurance Co. v. Rink, 110 Ill. 538; 1 Story’s Eq. Jur: sec. 769.
    Before he can recover he must show a legal and binding contract between him and his father,—not a mere promise that his father would give him the farm.
    An oral promise to give or devise to a son of promiser a farm then in possession of the former as tenant of the latter, is within the Statute of Frauds, and void, although the son, with the assent of the father, erected buildings on the premises, relying upon such promise. Smith v. Smith, 78 Am. Dec. 49; Cassel v. Cassel, 104 Ill. 361; Forward v. Armstead, 12 Ala. 124; 46 Am. Dec. 246.
    No parol contract for the sale of real estate will be enforced unless the vendee goes into possession under the contract; and if his possession is the continuation of a former tenancy, or can be construed as such, the court will hold that he is in possession under the contract of tenancy, and not under the contract to purchase. Seymour v. Delaney, 3 Cow. 445; 15 Am. Dec. 270.
    The mere possession of the land contracted for will not he deemed a part performance if the vendee be a tenant in possession under the vendor, for his possession is properly referable to his tenancy, and not to his contract. McCormack v. Sage, 87 Ill. 485; Johnston v. Glaney, 4 Blackf. 94; 28 Am. Dec. 45 ; Wood v. Thomly, 58 Ill. 464.
    To take the case out of the operation of the Statute of Frauds, on the ground of part performance, it is indispensable that the acts done relate solely and exclusively to the contract. Wallace v. Rappleye, 103 Ill. 231.
    There is no evidence in the case that Jacob stayed on the farm in pursuance of the alleged contract, except the evidence of Jacob himself, and that is incompetent. Cassel v. Cassel, 104 Ill. 361.
    Mr. C. F. Wheat, and Mr. D. G-. Tunnicliff, for the appellee :
    That this kind' of a contract is one based upon a valuable consideration, is not debatable. It has been so held by every court where the question has arisen.
    The question as to the adequacy of the consideration can hardly be said to arise. There is no ambiguity about the contract. Nothing is left to conjecture. Nothing impossible is to be performed, and the evidence is clear, definite and unequivocal.
    Payment of the purchase money and taking possession are sufficient to take the case out of the Statute of Frauds. Ramsey v. Liston, 25 Ill. 114; Bright v. Bright, 41 id. 97; Kurtz v. Hibner, 55 id. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489.
   Mr. Justice Magruder

delivered the opinion of the Court;

This is a bill filed by appellee in the circuit court of McDonough county for the specific performance of an alleged parol contract for the sale of land. The circuit court decreed the relief asked for, and the case is brought before us by appeal from that decree.

John P. Clark, the father of appellee and eleven other children, owned in his lifetime four hundred acres of land, including eighty acres bought by him in 1878. The eighty acres were situated in Bethel township in said county and known as the Bethel farm. John P. Clark died testate on October 18, 1883. He made a will, dated August 17, 1883, and probated in the county court of McDonough county on October 22,1883. By his will he gave and devised all his real and personal ■estate to his widow, Mary Clark, one of the appellants herein and mother of appellee, during her natural life.

Appellee moved upon the Bethel farm with his wife and •children on or about April 8, 1878, and lived there from that time until the filing of this bill on December 22, 1884.

The bill alleges, that, in the fall of 1880, John P. Clark agreed with his son Jacob, the appellee herein, that, if the latter would not move to Iowa but would remain on the Bethel farm and give his father one-third of the crop raised thereon so long as his father should live, he, Jacob, should have the farm. This is the contract, which is sought to be enforced.

The contract is, of course, void under the Statute of Frauds because it is not in writing, unless there has been such a part performance as to take it out of the statute. The bill was answered by the widow and five of the sons and one of the daughters of the testator, all devisees under the will, and, in their answers, they deny the making of the contract and plead the Statute of Frauds.

The specific performance of a parol contract for the sale of land will not be enforced by a court of equity unless in addition to the other requisites hereinafter named such contract is established, by competent proofs, to be clear, definite and unequivocal in its terms.

The evidence in this case shows that in the fall of 1880 some difficulty or misunderstanding occurred between the appellee and his father, as a result of which appellee announced his intention of leaving the Bethel farm and going to Iowa. He changed his mind, however, and remained. A number of witnesses swear, that after this time they heard John P. Clark say that he told his son Jacob that he would “give” him the Bethel farm if he would not go to Iowa. None of them testify that what they thus heard was said in the presence of appellee. A number of other witnesses swear that, after appellee concluded not to go to Iowa, they heard his father say that he was going to “deed” or “convey” the farm to Jacob, or that he told Jacob he was going to deed or convey it to him. Only one of these testifies to hearing anything said upon the subject when appellee and his father were both present; Rebecca Mathena says, that once, in Jacob’s yard, Jacob said to her that his father would deed the place to him, and that his father at the time was standing about fifteen or twenty feet away yet made no response and did not confirm the statement of the son.

Testimony, given years after the conversations testified to took place, as to what John P. Clark said about his intention to give or deed his son a farm, or as to his statements of what he told his son upon that subject, does not establish a “clear, definite and unequivocal” contract between him and his son. A court of equity will not execute the expressed “intention and expectation” of a father to give his son a farm, unless such “intention. and expectation” have ripened info and become embodied in a definite agreement. (Cassel v. Cassel et al. 104 Ill. 361.) In Bailey et al. v. Edmunds, 64 Ill. 125, where this court affirmed a decree of the circuit court of Bond county dismissing a bill for the specific performance of an alleged verbal agreement by a father, the defendant, to convey one hundred and ninety acres to his daughter, one of the complainants, testimony was introduced of a similar character to that which appears in this record. In the opinion in that case the following language is used: “Aside from the testimony of the complainants, there is no evidence of the alleged contract save statements of the defendant, testified to by quite a large number of witnesses in different casual conversations had with him, to the effect that he had given, or intended to give, or that he had conveyed, or would convey, to his daughter the land on which she lived.”

It is not claimed or pretended that appellee ever paid his father a dollar of money, or performed for him the labor of a single day, towards the purchase of the farm. He was not to pay any taxes nor did he pay any either before or after his ' father’s death. He was to give his father one-third of the crops raised upon the land during the old man’s life. But by doing so he merely paid what was less than a fair rent for the farm. The testimony is uncontradicted, that the eighty acres could easily have been rented for two-fifths of the crop. When appellee was making his arrangements to go to Iowa, John P. Clark actually rented the place to one William Miller upon an agreement that the latter should give two-fifths of the grain raised.

Appellee was not materially injured by a failure to perform the alleged contract. Nor does the testimony show any such acts of performance on his part as would compel him to suffer an injury amounting to a fraud, in case the supposed contract should not be executed. (Wallace v. Rappleye, 103 Ill. 229; Wood v. Thornly, 58 id. 464.) It does appear, that, when he was preparing to go to Iowa in September, 1880, he sold some of his property. He sold his crop and his wagon to his brother, Silas. The crop, however, he did not deliver, and, when he concluded to give up going to Iowa, his brother returned the wagon to him. He sold a span of colts, but he received for them all they were worth. He also sold some hogs, but it does not appear that he sold them at a sacrifice. Whether he made these sales of property by reason of his father’s refusal to perform the contract, or whether he abandoned his intention of seeking a home in Iowa by reason of his father’s promise to execute the contract, we can not see that, in either case, he lost anything. He had the farm from April, 1878, to September, 1880, for one-third of the crops, and he continued to have the farm for one-third of the crops from September, 1880, to his father’s death.

It is said, that the contract is taken out of the Statute of Frauds, because appellee went into possession of the land and made valuable improvements thereon. Acts relied on to show part performance will not operate to defeat the Statute of Frauds, unless they are done under the contract itself and for the purpose of performing it. If they might have been done with other views, they will not take the ease out of the statute, since they can not properly be said to be done by way of part performance of the agreement. It must appear that the party entered into possession of the land under the contract itself and in performance of it, and that he was allowed to make valuable and permanent improvements under his contract of purchase and not otherwise. Wood et al. v. Thornly, 58 Ill. 464.

We think the evidence in this case shows that appellee went upon the land in 1878 as a tenant of his father under an agreement to pay one-third of the crops as rent. His possession was originally taken under this tenancy and not under any contract of sale. His possession after 1880 will be presumed to have been a mere continuation of his former occupation as lessee. It is “properly referable to his tenancy and not to the contract.” 1 Story’s Eq. Jur. (12th ed.) sec. 763. The proof of a contract is not so clear as to establish a change in the character of the occupancy after 1880. The evidence is not conclusive that what was the possession of a tenant before that date became the possession of a vendee thereafter.

As to the improvements they were not lasting or valuable. When appellee went upon the land in 1878, there were upon it a house, a stable and fencing. He built what is called a porch on one side of the house; its columns were mere poles; its floor consisted of oaken boards laid upon the ground; its roof was shingled with shingles belonging to his father. He built an addition to a granary to be used for a milk house; in size it was eight by ten feet, and it had a shed roof made of boards sawed from logs out of his father’s timber. The porch ■and milk house together were not worth over $15. He also dug a well in a slough for the purpose of getting water for his cattle and walled it with rock taken from his father’s land.

'The improvements were such as any tenant, expecting to -occupy a farm for a number of years, would make for his own convenience.

The conduct of appellee himself is opposed to the idea that he was occupying the land under an agreement that it was to be deeded to him. He says he became angry with his father in the fall of 1880 and threatened to leave and go to Iowa, because his father had often before that time promised to deed the farm to him and had not fulfilled his promise. Yet, according to his own admission, he gave up the trip to Iowa, and received nothing for remaining except the same promises that he had already become dissatisfied with. Several witnesses testify that the real cause of the trouble between him and his iather was his refusal to give the old man the full share of one-third of the crop to which the latter was entitled as rent for the farm, and that his father did nothing more to induce ' him to stay than to agree to let him have the farm on the same terms as before.

John P. Clark seems to have been confined to his house by sickness for about two months before he died, and yet appellee does not appear to have said one word to him during that time about the execution of a deed of the farm.

Mrs. Clark, appellee’s mother, swears, that in the fall of 1884 about a year after her husband’s death, appellee came to her and wanted to rent the farm of her upon the same terms, upon which he had rented it of his father, and she told him he could have the place as long as he gave her one-third of the crop. She is confirmed by the testimony of several witnesses, who swear that, when appellee was threshing grain in the fall of 1884, he divided it so that one-third thereof should be separated from the other two-thuds, and stated, when he did so, that his mother was to get the one-third as rent, and he was himself to keep the rest. Why recognize his mother as landlord, if the land was his own ? He did not file this bill, until his mother attempted by a distress warrant to collect the rent, which he failed to pay according to his agreement with her.

The decree of the circuit court is reversed with directions to dismiss the bill. . '

Decree reversed.

Mr. Justice Craig, dissenting.