author: Judge J. W. Williams :—

text:
      (County Court of Hancock, County.)

    The People of the State of Illinois upon the Relation of Rudolph Anton, County Treasurer, vs. The Atchison, Topeka & Santa Fe Railroad Company.
    (1906.)
    1. Fbanchise — Defined. A franchise is a particular privilege conferred by grant from the sovereign or government and vested in individuals or a corporation. »
    2. Taxation — Fbanchises Confessed by Congbess. • Franchises conferred by congress, cannot, without its permission, be taxed by the states.
    3. Same — Fbanchises—Poweb of Local Assessobs. Where one part of a bridge structure is devoted' to railroad purposes and the other part contains toll wagon ways which are situated upon either side of the railroad tracks and the bridge prop* erty is assessed as a whole by the state board of equalization, the local assessors have no right to levy a tax upon the right to operate the toll wagon ways, as such ways are equally a part of the franchise, which can only be assessed by the state board of equalization.
    4. Same — Omitted Pbopebty. Nor can such toll wagon ways be assessed as “omitted property” inasmuch as the state board of equalization extended its assessment upon the entire bridge property. Nor is it material that the property should have been separately assessed.
    5. Same — Sepabate Pbopebty Taxed Undee Genebal Descbiption. Where one general description is used in the taxation of property, the whole is comprehended, even though the object is capable of being separated into separate classes of property, for purposes of taxation. If it is not so separated, the whole is included under a general description.

      6. Same — Definiteness of Assessment. An assessment as definite as the grant under which the land is held, is sufficient.
    7. Sanie — Omitted Pbopbbty. To permit the assessment of omitted property, it must he omitted in fact, and an assessment, even though irregular, is sufficient to prevent a re-assessment as omitted property.
    Petition for judgment and sale for nonpayment of taxes.
    The facts are stated in the opinion. Heard before Judge J. W. Williams.

      G. V. Helfrich, state’s attorney, and D. E. Mack, for the People.
    J. D. Miller, for defendant.
   Opinion by

Judge J. W. Williams :—

This is a suit wherein the people seek judgment and order of sale against the property hereinafter described, for the alleged) non-payment of taxes for the years 1901, 1902, 1903 and 1904.

It was attempted to be assessed by the county board of review, of Hancock county, in September, 1904, for said years, and a valuation of $50,000 was placed upon the same, for each of said years, and it was taxed for each of said years at $10,000 (being one-fifth of the valuation thereof).

The property was returned delinquent for alleged taxes as follows: .For 1901, $277; for 1902, $423; for-1903, $454.80; and for 1904, $526.51.

Objection is made against rendition of judgment as to any of said years, and upon the hearing the stipulation of the parties was introduced, and there was also oral and documentary evidence offered and considered in evidence.

It appears that the bridge property, as a whole, was assessed by the local assessor of Appanoose township, where the property is situated, for the years 1901, 1902, 1903 and 1904, upon a valuation of $400,000, and an assessed value of $80,000, upon which taxes as to the years 1901, 1902 and 1903 were extended. These taxes were not paid, and the property was returned delinquent for each' of said years. Objections were filed as to each of said years, against the rendition of judgment, and upon the hearing of the same, the objections were sustained and judgment was accordingly refused.

No appeal was taken from such refusal of judgment for the years 1902 and 1903, but as to such judgment of 1901 the people perfected an appeal to the supreme court. The judgment of the said county court was affirmed in said supreme court; the opinion may be found reported in vol. 206, at page 252, of the Illinois Beports.

Said decision as it appears to me has little bearing upon the present case, for the reason that in such assessments by the local assessor there was an attempt to assess the whole bridge, when it appears that on June 1, 1900, the then owner of said bridge conveyed said bridge with its rights and franchises to said railroad company. Such conveyance was made under the authority of the act entitled, 11 An Act concerning the rights, powers and duties of certain corporations therein mentioned, authorizing the sale and transfer of any railroad, or railroad and toll bridge, and other property, franchises, immunities, rights, powers and privileges connected therewith, or in respect thereto, of any corporation of this state to a corporation of another state and prescribing the rights, powers, duties and obligations of the purchasing company.” Approved April 21, 1899, and in force July 1, 1899. See Session Laws of 1899, at page 116.

The legal effect of said conveyance, in connection with the above statute, was to make said bridge a part of the railroad system of the Atchison, Topeka ■& Santa Fe Bailway Company, and to make it taxable as railroad property. The act expressly authorized railroads to acquire title to and operate such bridges whether with or without toll wagonways. The stipulation in this case shows that the said bridge was so operated as a railroad and toll bridge since its acquisition as aforesaid.

Under any view that may be taken of said act, at least a part of said bridge became in effect railroad track, and only liable to assessment by the state board of equalization, and of course the action of the local assessor could not under any view be sustained in attempting to assess the whole bridge structure.

Since June, 1900 (the date of its purchase by said company) , it has been assessed by the state board of equalization for each of the years 1901, 1902, 1903, and 1904, and the taxes so assessed have been paid for each of said years.

It appears from the schedule submitted to said board, and a copy of which was filed with the cotinty clerk of this county, that for the year 1904, the description of the bridge property upon which taxes were assessed by the state board of equalization, was as follows: “Island No. 15, from east end of bridge to west side of Island No. 15, or center of pier No. 8, and from center of pier No. 8 to center of pier No. 4, of Iowa and Illinois state line. This was formerly property of Mississippi Biver Bailroad & Toll Bridge Company, and is now owned and operated by the Atchison, Topeka & Santa Fe Bailway Company.”

The description upon which taxes were extended for the years 1901, 1902 and 1903 was substantially the same as that for 1904 and need not be here repeated. Upon this description all taxes so assessed by said state board were paid. This fact clearly appears from the stipulation filed in the case as to each of said years.

In the decision of the supreme court hereinbefore referred to, there is a reference to the question of the possible separation of the bridge structure into two parts for taxing purposes; one being the part devoted to the railroad business,, and the other part being the toll wagonways upon either side of the railroad track.

Said supreme court carefully refrained from deciding the question of the divisibility of the structure into such two-parts, and it is not decided whether such separation may be made for taxing purposes.

The assessments for said years 1901, 1902, 1903 and 1904 by said .board of review were made upon the theory that the bridge property could be so divided.

The description by which the toll wagonways were assessed for each of said four years is as follows:

Two toll wagon roadways, one on either side of that part of the railroad track on the bridge of the Atchison, Topeka & Santa Pe Eailway Company, described as follows: Commencing in the center of the main channel of the Mississippi river, which for more accurate account is: designated to be the center of pier No. 5, known in the C. S. P. and C. survey as station No. 8, and 64 6-10 on the fifth pier of the main bridge from the Iowa shore from the bank of said river, counting the Iowa shore abutment as pier No. 1, thence in a southeasterly direction 1,2241-10 feet to the center of pier No. 10, known in the C, S. P. & C. survey as station No. 20, and 88 7-10, said pier No. 10 being the tenth pier from the Iowa shore; situated on island No. 15, in sections 3 and 10 in Appanoose township, being township 7 north, range 8 west, from the 4th principal meridian, in Hancock county, Illinois, and also the approaches to said roadway and abutments and piling upon which said approaches rest, extending from the Illinois shore in said section 10 to said pier No. 10 of said railroad bridge, said roadways consisting of floors, side walls, supports, braces, stays, and irons and timbers attaching said roadways to said railroad bridge, together with the right to have said roadways attached to said railroad bridge as they are now attached, and to operate said toll roadways as they are now operated; section 10, township 7, range 8.

The objections against the rendition of judgment are many.

It is only necessary to consider two of them, in the decision of this case.

1. Are the assessments for said four years an' attempt to assess a franchise or part thereof?

2. Have the taxes for any of said -years been assessed and paid so as to make the assessment illegal and double taxation?

But little authority has been furnished me upon the first question.

In the description of the property, for each of the four years, occurs the following language: “Together with the right to have said roadways attached to said railroad bridge, as they are now attached, and to operate said toll roadways, as they are now operated.” The contention is made by the objector that this is an attempt to assess and tax a franchise or a part thereof.

A franchise is defined as a particular privilege conferred by grant from a sovereign or government and vested in individuals or a corporation. Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42.

A franchise is a special privilege emanating from the sovereign power, and owing its existence to a grant or to prescription presupposing a grant. Wilmington Water Power Co. v. Evans, 166 Ill. 548.

Corporate franchises proceed from the government or the sovereign power and owe their existence to a grant. Chicago City Railway Co. v. People ex rel. Story, 73 Ill. 541.

A franchise is a royal privilege or branch of the king’s prerogative, subsisting in the hands of the subject and must come from the king’s grant. Ibid.

There was a franchise granted in the case before us, by the state of Iowa to the “Fort Madison and Illinois Railway and Bridge Company,” in February, 1882, authorizing and empowering said company to construct, maintain and use a railroad and wagon bridge across the Mississippi river at Ft. Madison, Iowa.

In November, 1886, there was a corporation organized known as the Mississippi River Railroad and Toll Bridge Company, under the provisions of the statutes of Illinois, having for its object the construction, maintenance and opera^tion 'of a railroad and wagon bridge over the Mississippi river.

In December, 1886, said Iowa corporation assigned and transferred all of its rights to the said Illinois corporation The bridge in question was built by said Illinois. corporation in accordance with the laws of the United States and the states of Illinois and Iowa, and in pursuance of the charters of said two bridge companies, and is a lawful structure.

In 1872, the senate, and congress of the United States passed an act to authorize the construction of a bridge and to establish the same as a post road across the Mississippi river, at Ft. Madison, Iowa. This act confers a franchise to such persons as shall have authority from the states of Illinois and Iowa, to build a bridge over said river, and is in effect a federal franchise to the parties now owning and operating the same, who have at the samé time franchises from the states of Illinois and Iowa, for the same purposes.

All of the above facts appear from the stipulation filed in the cause and are undisputed.

In the description of the toll wagon ways, as said before, occurs language showing that there is included in addition to the tangible property “the right to have said roadways attached to said railroad bridge as they are now attached, and to operate said toll roadways as they are now operated.” The toll wagon ways could never have been constructed, maintained or operated,-save under the franchises granted.

Since said bridge was built, it has been operated lawfully, under the franchises above referred to; without such franchises it could not have been lawfully operated. In my opinion such part of the description of the toll wagon ways as is above referred to cannot be disregarded nor rejected as surplusage. It is a material part of the description, and in my opinion is a clear attempt to value, assess and tax the right of the company to operate the roadways. The language used in the description forbids every other construction.

The local taxing authorities have no jurisdiction over franchises,

Franchises conferred by congress cannot, without its permission, be taxed by the states. California v. Central Pacific R. R. Co., 127 U. S. 1.

A Kentucky corporation, operating a ferry across the Ohio river, is deprived of its property without due process of law by the action of that state in including, for purposes of taxation, in the valuation of the franchises derived by the corporation from Kentucky, the value of an Indiana franchise for a ferry from the Indiana to the Kentucky shore, which such corporation had acquired. Louisville & Jeffersonville Ferry Co. v. Commonwealth of Kentucky, 188 U. S. 385, 399.

In my opinion, the inclusion of the “right” to operate the toll wagon ways is fatal and that judgment cannot be rendered for any of the years 1901, 1902, 1903, and 1904, in this suit.

It is not strictly necessary to pass upon any other questions involved herein, but inasmuch as counsel have, on each side, favored me with learned briefs, as well as oral arguments, I deem it but proper to also consider the second point as well as the first.

The board of review of Hancock county undertook to assess said toll wagon ways of said bridge, for the years 1901, 1902 and 1903, as “omitted property,” under the provisions of secs. 276 and 277.

It clearly appears from the record in this case, that the state board of equalization extended its assessment upon the bridge as a whole, there being no language in the description that would justify the construction that a part of the bridge was excepted.

Where one general description is used, the whole is comprehended, even though the object is capable of being separated into separate classes of property, for purposes of taxation. If it is not so separated, the whole is included under a general description such as is here used.

■ If the company had failed to pay its taxes for either of the years 1901, 1902, and 1903, and there had been judgment and sale and deed to the purchaser, there would be no question but that the grantee in the tax deed would have received title' to the whole bridge.

.“An assessment• as definite as the grant under which the land is held, is sufficient.” 1 Cooley on- Taxation, p. 747.

In 1 Cooley on Taxation, p. 742, it is said that “the purposes in describing the land are: First, that the owner may have information of the claim made upon him or his property; second, that the public in case the tax is not paid, may be notified what land is to be offered for sale for the nonpayment; and third, that the purchaser may be enabled to obtain a sufficient conveyance. If the description is sufficient for the first purpose it will ordinarily be sufficient for the others also.”

In the view I take of the case, there can be no question but that the bridge was not omitted property so' as to permit its assessment for the past years 1901, 1902 and 1903. For each of these years it had been assessed as one complete structure by the state board of equalization, and the taxes were paid, and even if the bridge ought to have been divided for taxing purposes, for said three years, it was not so divided, and the taxes (even if irregularly assessed) having been paid thereafter, it cannot be assessed as “omitted property” for said years.

In The Wabash Railroad Company v. The People, ex rel. Samuel M. Funk, County Collector, 196 Ill. 606, it is held that “An assessment against a railroad company as for ‘omitted’ school taxes is not authorized by scetions 276 and 277 of the revenue act, where all school taxes levied upon the property during such years have been paid to the district for which they were levied, although the levy was made for the wrong district, and where all school taxes levied for the right district have been extended against other property than that of the railroad company and been paid.” Section 276 is as follows: “If any real or personal property shall be omitted in the assessment of any year or number of years, or the tax thereon for which such property was liable, from any cause has not been paid, or if any such property by reason of defective description or assessment thereof, shall fail to pay taxes for any year or years, in either case the same, when discovered, shall be listed and assessed by the assessor and placed on the assessment and tax books. The arrearages of tax which might have been assessed, with ten per cent, interest thereon, from the time the same ought to have been paid, shall be charged against such property by the county clerk.” The railroad property of appellant located in the east half of said sections 25 and 36, was not omitted in the assessment, as it was assessed in each of the years of 1892 to 1898, inclusive. All taxes levied upon said property during those years were paid, and there was no defective description of said property. The section above quoted does not, therefore, authorize the assessment of said property as omitted property.

Section 277 is as follows:- “If the tax or assessment on property liable to taxation is prevented from being collected for any year or years, by reason of any erroneous proceeding or other cause, the amount of such tax or assessment which such property should have paid may be added to the tax on such property for any subsequent year, in separate columns designating the year or years. ’ ’

In Ohio & Mississippi Railway Co. v. People, 123 Ill. 648, the highway commissioners of a township located in Wayne county, from 1875 to 1883, inclusive, levied the necessary road taxes annually upon all taxable property in their town, except the property of the Ohio & Mississippi Railway Company, which was overlooked. In 1886 the omission was discovered, and the commissioners then made out lists for the several districts of the property of said railway company for each year from 1875 to 1883, inclusive, and orders that the road taxes for said years be levied against the property of the company, which were extended accordingly. It appeared that the railroad was assessed for each of said nine years for state, county, and township taxes, except district road taxes, and that it paid in each of said years all taxes assessed against it. It was held that as said railroad property was not omitted in the assessment for any year or number of years, as all taxes levied upon the property had been paid each year, as there was no defect in the description of the property, and as no road tax had been assessed or levied upon the property during the nine years, sections 276 and 277 of the revenue law did not authorize the assessment of said property, for the years 1875 to 1883, inclusive, as omitted property, and the tax was defeated. That case is conclusive against the right of school district No. 2 to assess appellant’s property in the east half of sections 25 and 36 for the years 1892 to 1898, inclusive, as omitted property.

In the case of In re Appeal of William Wilmerton, 206 Ill. 15, it is held that stock in a building and loan association cannot be assessed to the holder as omitted property, for the years during which, under the statute, it was exempt from taxation, even though the statute was void.

I am aware the decisions in C., B. & Q. R. R. Co. v. People, 136 Ill. 660; C. & N. W. R. R. Co. v. People, 195 Ill. 184; People v. State Board of Equalization, 205 Ill. 296; C. & E. I. R. R. Co. v. People, 218 Ill. 463, are to the effect that where the company voluntarily return in their schedules property as railroad track, that is not railroad track, in fact, that it is still the duty of the local assessor to assess the parts that are not railroad track, in fact. These decisions seem to be upon the theory that the company has erroneously and voluntarily returned the property as railroad track, and that they can take no advantage of their own wrong.

It is my opinion, notwithstanding the above decisions, that where property has been so returned and paid upon, it cannot afterwards be assessed as omitted property. The contents of such schedules may be voluntary by the company, but the fact that a return is required to be made is not voluntary. It is imperatively required by statute and heavy penalties are provided for a failure to return it in apt time, sec. 49, chap. 120.

The matter of assessing property as “omitted” is a wise provision for compelling all property liable for assessment to pay its equitable share of taxes. When it comes to assessing property as ‘ ‘ omitted, ’ ’ I think it must have been omitted in fact and an assessment, even though irregular, would be sufficient to prevent a re-assessment as omitted property.

In my opinion, the above reasoning would not apply to the assessment for 1904. As to such year, the wagon ways were assessed by the county board of review, in lieu of the assessment returned by the local assessor, upon the whole bridge.

If the assessment had been regular in other respects and the bridge was capable of separation for taxing purposes, then in my opinion the tax for 1904 should be sustained.

It is not necessary for me to express my opinion upon the question as to the divisibility of the bridge structure into two parts for taxing purposes. The record in this case is such that that question does not arise, and it would be a work of supererogation to decide a question not before us.

For the reasons given, judgment will be refused as to each of the years for which it is asked.

NOTE.

After the above decision was in proof it was affirmed in the Supreme Court. See 225 Ill. 593. — Ed.


source: Caselaw Access Project

author: Dunne, J. —

license: Public Domain

text:
      (Circuit Court of Cook County. In Chancery.)

    Donker & Williams Co. vs. H. G. Vance.
    (October 2, 1900.)
    1. Specific Performance — Contracts for Personal Services. Specific performance of a contract for personal services cannot be enforced.

      2. Contracts for Personal ■ Services — Injunction to Restrain Breach of — What Services Are Unique and Extraordinary., A bill filed by an employer against an employee alleging that the defendant is competent, skilled and well versed in the leather goods business and competent to take charge of and become foreman or superintendent of the leather goods department of the complainant and that defendant’s knowledge and skill are peculiar to him, and that complainant cannot find any other person possessing the same peculiar skill and qualifications; that by reason of such qualifications complainant employed defendant as foreman; that defendant entered complainant’s employ, became acquainted with the names of the persons from whom complainant purchased raw materials, the prices paid for same and the cost of production of the articles manufactured; ■ and that defendant has left said employment and is engaging in business with others in competition with complainant, does not state a case for an injunction.
    3. Contracts for Personal Services — Injunction. Will Not Lie to Restrain Breach of. The rule that injunction will lie to restrain the breach of a contract for personal services does not apply to contracts between master and servant. It is restricted • to cases of actors, players and the like where the services are unique and extraordinary.
    4. Same. There is no difference in principle between compelling a party to work for one man in particular and enjoining him from working for others.
    5. Constitutional Law — Slavery—Involuntary Servitude — What Is. To compel a servant or employee to work for a particular person is against the spirit of the thirteenth amendment to the federal constitution which prohibits slavery and involuntary servitude. “Involuntarj servitude” means servitude outside of slavery. No man can become the servant of another except by contract.
    <5. Pleading — Conclusions in. An allegation that the services of an employee are special and peculiar states a mere conclusion.

      Bill to restrain employee from breaking employment contract. Heard on demurrer to bill before Judge Edward F.. Dunne.
    The facts are stated in .the opinion.

      Pam, Calhoun & Glennon, solicitors for complainant.

      Rich & Loer, solicitors for defendant.
   Dunne, J. —

Can a mechanic who has contracted his services to an employer a definite period of time and who violates his contract, and quits his employer’s service during the term of the contract be restrained by injunction from working elsewhere during the term of the contract? This is the legal proposition presented by the bill and demurrer filed in this cause.

The salient allegations of the bill are as follows, to-wit, that ‘ defendant is competent, skilled and well versed in the leather-goods business and competent and able to take charge of and become foreman or superintendent of the leather goods department of complainant’s business;” that “his knowledge- and skill are peculiar and special to himself;” that complainant cannot “find any other person possessing the same peculiar skill and qualifications; ’ ’ that by reason of such qualifications complainant employed him as foreman for $18 a week in consideration, of which defendant agreed to give his whole time, skill and experience for a certain period and to work for no one else; that pursuant to said contract defendant entered' complainant’s employ, worked for it about two years, became-acquainted with the names of the persons from whom complainant purchased its raw materials and the prices paid fertile same and the cost of production of the articles manufactured by complainant; that defendant has left complainant’s-, employ and is engaging in business with others in competition with complainant; that “complainant is absolutely unable to replace the defendant and cannot at the present time procure any other person possessed with the requisite skill and", ability to carry on the services agreed to be performed by defendant.” All these ailegatiins are admitted by the demurrer.

At the outset it will be conceded that specific performance of such a contract cannot be decreed. No court in any country where the common law prevails has ever attempted to compel one man to work for another no matter how solemnly he has contracted so to do. It is to be hoped that many years will yet elapse before such a decree will be entered. Nevertheless it is contended by counsel for complainant that while courts of equity will not affirmatively enforce the specific performance of such contracts they will negatively enforce'the performance of the same by enjoining the person so contracting from working elsewhere, and in support of their contention they cite numerous authorities. Hoyt v. Fuller, 19 N. Y. S. 962; Duff v. Russell, 14 N. Y. S. 134; Canary v. Russell, 30 N. Y. S. 122, 9 Misc 58; Daly v. Smith, 49 How. Prac. 150, 38 N. Y. Super. Ct. 158; Hayes v. Willio, 11 Abbott’s Prac. N. S. 167; McCaull v. Braham, 16 Fed. 37. All of these cases on examination will be found to be not cases between master and servant or employer and employee providing for the rendering of services which would bring the contracting parties in close personal contact from day to day over a lapse of time, but pure theatrical contracts providing for the production of certain plays or exhibitions before the public and in all of them it would appear that large amounts of money had been expended' in providing theaters, advertising, etc., upon the faith of the contracts. Because of such expenditures and because the services contracted for were in their very nature unique and of an extraordinary character so that they could not be replaced, and consequently there could be no adequate remedy at law, the court of chancery has very properly intervened to prevent the contracting performers from exhibiting elsewhere. There is a plain distinction between such cases and cases involving the relation of master and servant or employer and employee. In the latter cases constant every day contact between the parties is common, if not absolutely essential. In 'the former it is uncommon and unnecessary. In the latter the servant is subject to the varying orders and directions of the master. In the former the theatrical performer is subject to no orders save such as are specified in the contract. In the latter the services are of a common every day character the loss of which can be supplemented by the services of others of a substantially similar character. In the former the services contracted for are always of a unique and extraordinary character incapable of duplication.

Counsel for complainant has cited no case in which an employee has been enjoined at the instance of his employer from working for another. On the contrary as they admit the issuance of an injunction has been denied as asainst an insurance agent, in Burney v. Ryle, 91 Ga. 701, 71 S. E. 986. As against a base ball player, in Metropolitan Exhibition Co. v. Ewing, 42 Fed. 198, 7 L. R. A. 381. As against a lithographic designer in Strowbridge Lithographic Co. v. Crane, 20 Civ. Pro. 24, 12 N. Y. S. 834. And as against an acrobat in Cort v. Lassard, 18 Oreg. 221, 22 Pac. 1054, 17 Am. St. Rep. 1054, 6 L. R. A. 653.

It is not to be wondered at that counsel has not been able to cite cases enforcing, even negatively, by injunction the maintenance of the relation of master and servant where eitiier party objects thereto. In the judgment of this court it is against public policy to force an unwilling servant to work for his master, or an unwilling master to keep a servant after their relations to each other become strained and distasteful. To force them into daily contact with each other under such circumstances would be fraught with much more evil consequences than might flow from the breach of the contract of employment. Better far to leave them to their remedies at law, even though inadequate, than to force association and personal contact between hostile and unwilling parties.

But it may be said that there is a difference between enjoining a man from working for others and compelling him to work for one man in particular. In effect there is none. To say to a man, “Work for me or nobody,” if that man be, as is alleged of defendant, without means, is to say, — “Work for me or starve. ’ ’ Such a heartless edict should not go out of a court of equity. That there are cases in which courts of equity have negatively enforced specific performance where it was impossible to do so by positive decree is not denied, but I have failed to find any arising between master and servant or employer and employee. Indeed it is against the spirit of the thirteenth amendment of the constitution of the United States which prohibits “slavery and involuntary servitude” within its borders. Involuntary servitude in juxtaposition to the word slavery has a significance. So placed it cannot mean the same as slavery else it is a redundancy. It must mean, servitude outside of slavery. Outside of slavery servitude can originate only by contract. No free man can become the servant of another except by consent, to-wit, by contract. Involuntary servitude can only arise therefore after-the consenting party changes his mind and becomes an unwilling servant — involens servitor. But, whether or not the relief sought for in this cause comes within the inhibition of the thirteenth amendment, the court is of the opinion that to grant the relief prayed for would be against sound public policy.

It is claimed that the allegation that “the knowledge and skill of defendant are peculiar and special to himself,” and that “complainant cannot at the present time procure any other person possessed of the requisite skill and ability to conduct the services agreed to be performed by defendant,” places the cause in the same category as the theatrical cases hereinbefore cited, and that it should be governed by the rule laid down in those cases. The court is of a contrary opinion. These allegations are mere conclusions. No facts are set out to sustain them. It does not appear that defendant is acquainted with any special or secret processes or gifted with any special or unusual dexterity. The facts alleged are that he is a skillful and expert leather worker, thoroughly competent to act as foreman, and that he was employed at $18 a week. This does not place him in the. category of a prima donna, a tragedienne or a premier danseuse.

The demurrer is sustained and the injunction dissolved.

NOTE.

The decision of Judge Dunne, while correct as applied to the facts in the case before the court, is clearly erroneous insofar as it holds that injunction will not lie to restrain an employee from breaking his contract of employment. Where the services of an employee are special, unique or extraordinary, injunction will lie to restrain such employee from working for others during the period of employment. The rule is not restricted to actors, singers, etc.

The authorities are fully reviewed in the note to Oppenheimer et al. v. Sayer, 1 Ill. C. C. 86. See also the decision of Judge Tuley in Oppenheimer et al. v. Sayer, 1 Ill. C. C. 74; Jennings v. Bethel, 27 Ohio C. C. 239. — Ed.

       S. C. 16 N. Y. S. 958, 133 N. Y. 678, 31 N. E. 1.

       See the many cases cited in the note to 1 Ill. C. C. 86. — Ed.


author: Holdom, J.:—

text:
      (Criminal Court of Cook County.)

    People of the State of Illinois vs. Simon Arkins.
    (Jan., 1901.)
    1. Criminal Law- — Plea of Guilty Entered Upon Promise of Im-' munity. Where a person indicted for receiving stolen property is induced to enter a plea of guilty by the promise of the prosecuting witness that he will go free, the defendant is entitled to have the judgment vacated and to withdraw the plea of guilty.
    2. Plea of Guilty Treated as a Confession. A plea of guilty is treated in the light of a confession and is subject to all the legal restrictions pertaining thereto.
    3. Confessions — When Admissible. Confessions made by a prisoner under the influence of promises or threats are not admissible against him. Confessions induced by the .appliance of hope or fear are not regarded as voluntarily made and are therefore not to be relied on as true.
    Indictment for receiving stolen property. Motion to vacate judgment entered upon plea of guilty. Heard before Judge Jesse Holdom.
    The facts are stated in the opinion.

      Frank Crowe, assistant state’s attorney, for the People.

      O’Donnell & Brady, for defendant.
   Holdom, J.:—

The defendant was indicted by the grand jury of Cook county for having received stolen property, with knowledge that the same was stolen. The property, consisting of silk linings of the value of about $600, was stolen from Siegel Bros., by one Sumey, an employe, and sold to the defendant. On being arraigned for trial at the November term of the court, the defendant pleaded guilty. The evidence both for the state and the defense was heard by the court, which being held to sustain the defendant’s plea of guilty, he was sentenced to the penitentiary for an indeterminate term, under the statute.

The defendant appeared without counsel and refused the offer of the court to assign him counsel to conduct his defense.

On December 5th, and within the November term, the defendant moved the court to vacate and set aside the sentence and judgment pronounced against him by the court, and for leave to withdraw his plea of guilty and to enter a plea of not guilty, and upon issue thus joined, to be tried by a jury, upon the ground that he was in fact not guilty of the crime for which he was indicted, tried and sentenced; that while he bought the stolen goods as alleged, yet he had neither knowledge nor suspicion that the goods were stolen; that he was assured by one Fred Siegel, the prosecuting witness, after having paid him $600, the value of the goods stolen, and which he had bought without any guilty knowledge, that the prosecution would be dropped, and subsequently when in court, assured that if he would plead guilty; the judge, after hearing the evidence, would discharge him and set him free; that he relied on such statements implicitly, and resting in the security of their verity, with the consciousness of innocence in his mind, and simply as the easiest manner in which to escape the legal clutches in which he found himself enmeshed, pleaded guilty.

Affidavits in support of this contention were filed and read with the motion.

It is in the first place insisted that the plea of guilty must be treated in the light of a confession made by one charged with crime and subject to all the legal restrictions pertaining thereto, and that every intendment in favor of the defendant, deducible from the facts and circumstances environing and leading up to the confession evidenced by the plea of guilty, must be indulged.

That the undisputed inducement leading to the confession, viz., the plea of guilty, as shown by the sworn proof, was the assurance that such was the channel of escape, and therein lay not only the hope but the certainty of freedom. While the .legal question as thus presented is not at all new, yet the circumstances of this case are novel and are not to be met with in recorded cases so far as I have been able to discover in the necessarily limited research which I have been able to make. The condition of the mind of the defendant at the time of entering the plea of guilty must not be lost sight of, and by this standard must be judged. The plea was entered on the positive unrestricted statements of the prosecuting witness, that the judge would, under that plea, after hearing the witnesses, acquit him. Without such plea — the crime being a felony — the court could not hear the ease without the interposition of a jury. At common law a confession is an admission or acknowledgment of guilt. Therefore the defendant’s plea of guilty in case at bar should be and is by legal construction, taken and treated as a confession.

The most instructive and thoroughly well considered case on this subject, in which all the leading cases are collated and reviewed, is Bram v. United States, 168 U. S. 532, opinion by Mr. Justice White ; and while Mr. Justice Brewer wrote a dissenting opinion in which Chief Justice Fuller and Mr. Justice Brown concurred, the division of the court was not upon the law announced, but the dissentants, in effect, simply held that the' facts of the case did not come within the purview of the legal principles promulgated in the court’si opinion.

Mr. Justice White said on page 542: “In criminal trials in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself. ’ ”

In Bussell on Crimes, vol. 3, (6th ed.) page 478, the author says: “But a confession in order to be admissible, must be free and voluntary; that is, must not he extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.”

Like doctrine has been expressed by the standard writers on criminal law, such as Greenleaf, Wharton, Taylor and Bishop. The administration of the criminal law and the attitude of the courts toward persons charged with crime, has much ameliorated since the Stuarts left the throne of England and the reformation dawned in law as well as religion. While confessions extorted through torture were of frequent occurrence in England to this time, yet since 1688, they have not been tolerated. Strange to say this change was. not brought about by any statute, but upon a silent acquiescence on the part of the courts, growing out of a popular demand proceeding from more refined feelings of humanity and a progressive civilization of the people.

In Brown v. Walker, 161 U. S. 591, the court says: “So-deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists, that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim (Nemo tenatur seipsum acensare) which in England was a mere rule of evidence, because clothed in this country with the impregnability of a constitutional enactment.”

That one accused of crime may not be compelled to testify against himself may be conceded to be a doctrine of the common law. In Hawkins’ Pleas of the Crown, it is said: “Sec. 2. * * * And where a person upon his arraignment actually confesses himself guilty, or unadvisedly discloses the special manner of the fact, supposing that it does not amount to felony where it doth, yet the judges, upon probable circumstances that such confession may proceed from fear, menace or duress, or from weakness or ignorance, may refuse to record such confession and suffer the party to plead not guilty.”

For reference to statements made by prisoners that were induced by the language specifically used, set out in each case, see Bram v. U. S., supra, 552-556, 559-561.

The doctrine voiced in the decisions and statements of text writers cited has been sanctioned by the decisions of the courts of this state and forms an integral part of our legal fabric. The earliest opinion on this subject is found in the case of Gates v. The People, 14 Ill. 433, in which the court stated the common-law doctrine in these words: “The general rule is that, confessions made by a-prisoner under the influence of promises or threats, are not admissible in evidence against him. Confessions induced by the appliances of hope or fear, are not regarded as voluntarily made, and are therefore not to be relied on as true.” ,

There is a marked difference between the case at bar and the cases above referred to, in all of which the confession was made to some officer of the law on some inducement held out or threat made by, or fear superinduced by the action of such officer, while here the inducement proceeded solely from the prosecuting witness. This court, however, can not fail to have in mind the fact that the defendant — aside from the implication arising from his plea of guilty — not only never admitted having knowledge that the property was stolen at the time of its' purchase by him, but on the contrary, always denied he had any such guilty knowledge, or cause to suspect that the property had been stolen. Was the mind of the defendant at the time of the entry of his plea of guilty free to do so understandingly, or was he misled as to the real effect of that plea by the false representations which had been made to him by the prosecuting witness, that so doing was the path to freedom? I am constrained to believe from the proof, the latter statement to embody the facts. So believing, the defendant, in my opinion, should have extended to him the benefit of the law announced in the line of decisions cited, and in the humane administration of the law should not be consigned to sojourn in the penitentiary of the state upon a plea, the effect of which he did not comprehend, and without a trial guaranteed to him under the constitution and laws of this commonwealth.

The sentence of imprisonment in the penitentiary for an indeterminate term, heretofore imposed upon defendant, and the judgment entered thereon, is hereby vacated, set aside and held for naught, and the defendant has leave to withdraw his plea of guilty and to enter a plea of not guilty.

       1 Greenl. Ev. (15th ed.) sec. 219; Wharton, Crim. Ev. (9th ed.) sec. 631; 2 Taylor, Ev. (9th ed.) sec. 872; 1 Bishop’s New Crim. Proc. sec. 1217, par. 4. — Ed.


author: Mulkey, J.:—

text:
      (Supreme Court of Illinois.)

    Lucia Hausen vs. Norman Hausen.
    (Opinion filed March 24, 1885.)
    Husband and Wife — Divorce—Cruelty—What Constitutes. A general offensive bearing on the part of the husband and the habitual use of grossly improper language to the wife are sufficient proof of cruelty to secure a decree of separate maintenance even though there are no acts of violence.
    Appeal from appellate court, second district, affirming a decree of the circuit court of Lee county.
   Mulkey, J.:—

This is an appeal from a judgment of the appellate court for the second district affirming a decree of the circuit court of Lee county, dismissing a bill brought by Lucia Hausen, the appellant, against her husband, Norman Hausen, the appellee, for separate maintenance. The parties have been married since the 8th of July, 1866, and, as the fruit of the marriage, have a daughter of weak mind, whose interests and welfare demand the care and oversight of her mother who is a woman of culture, high respectability, and, in every way, well fitted to have the care and custody of the child. The evidence tends to show the father is the very reverse of the mother with respect to fitness for such a trust. And there can be but little, if any doubt, the interests of the child will be best conserved by committing'her to the care of the latter. The parties are estranged and have for some time been living apart, and an examination of the testimony justifies the conclusion there is no probability they will ever again be reconciled. The evidence of Mrs. Hausen brings the case clearly within the principles announced by this court in Farnham v. Farnham, 73 Ill. 497, and we have no disposition to modify anything that was said in that case. In this, as in that, the chief ground of complaint is the general offensive bearing and habitual use of the grossly improper language of the husband to his wife, which is simply intolerable to any woman of refinement and culture, as the evidence clearly shows she is. We cannot set forth the language attributed to him for the reason that it is so grossly obscene and profane as to shock every sense of propriety and decency, and consequently it is not fit, matter to be reproduced in a judicial opinion. It is true the husband denies most of the charges which his wife makes against him, and a number of their acquaintances and neighbors are called in who testify they never saw or knew of any improper conduct on his'part or of any difficulty between them. So far as this negative testimony is concerned we do not attach much importance to it. It is altogether unlikely that one guilty of the conduct attributed to the appellee would be so reckless and indifferent to public esteem and. the respect of his neighbors as to expose himself by the commission of such gross improprieties in their presence. Appellant, himself, swears that his conduct and bearing toward her in the presence of others than the servants and her own people was always respectful and proper, hence these witnesses do not at all contradict her. While for the reasons already stated, we are not permitted to set out the details of her testimony, yet we cannot do less than say there is much in it that carries with it the conviction of its truth. There are many expressions in it that could scarcely have been manufactured by a chaste, refined woman as she appears to be.

Besides this she is strongly corroborated by a number of disinterested witnesses, some of whom were former servants in the family, while on the other hand, he is not corroborated at all except so far as the negative testimony above adverted to may be deemed a corroboration. In short, we think, the decided weight of testimony is with the appellant and that the circuit court erred in not entering in her favor.

The judgment of the appellate court will therefore be reversed, and the cause remanded with directions to that court to reverse the decree and remand the cause with directions to the circuit court to ascertain by reference to the master, or otherwise, what will be a reasonable allowance out of the husband’s estate for the separate maintenance of appellant and their daughter, and to enter a decree securing and providing for its payment according to the prayer of the bill and the provisions of the statutes in that behalf.

Reversed and remanded.

NOTE.

The above opinion was found among the papers of Judge Tuley. There was a note attached thereto as follows:

“The defendant never struck his wife — never inflicted any bodily injury whatever upon her. He simply threatened to beat her.” — Ed.


author: Rogers,_ J.:—

text:
      (Circuit Court of Cook County.)

    The People ex rel. Wm. N. Sturges vs. Board of Directors etc. of The Board of Trade of Chicago.
    (January 17, 1878.)
    1. Mandamus to Review Action of Boabd of Dibeotobs of Voluntabv Association. Where a party has a legal remedy and has not been disturbed in any of his rights as a member of the hoard of trade except the right to prosecute a member for the non-payment of a claim, but has been deprived of that right by a decision of the board of directors, that they would not entertain it for reasons deemed by them, in the exercise of their discretion and judgment, to be good and sufficient, it was held, that mandamus,would not lie.
    2. Same — Pasty Defendant. Where it was sought to affect the rights of a party and to compel his trial, upon a petition of mandamus to which he was no party, and of which he has had no notice, it was held, that under sec. 7 of the (mandamus act where a party has an interest in the subject-matter he could be made a party defendant.
    3. Same — Adequate Remedy at Law as Defense. An adequate remedy at law is a defense to an application for a writ of mandamus where such writ would not afford a proper and sufficient remedy.
    4. Same — What is a Sufficient Remedy. In an application for a writ of mandamus to compel a board of trade to suspend one of its members for failure to pay a debt due to the relator it was held that the writ did not afford' the relator an adequate remedy as the suspension of the member would not necessarily cause the debt to be paid.

      McCoy & Pratt and Monroe, Bisbee & Ball, attorneys for plaintiff.

      Dent & Black, attorneys for defendant.
   Rogers,_ J.:—

If we are to regard the ease of The People ex rel. Thos. B. Rice v. The Board of Trade of Chicago, 80 Ill. 134, as authority, then it is clear that the petition for a mandamus in this case cannot be sustained and that the answer to it presents a perfect defense. It is the latest decision of our supreme court upon the questions involved in it; and while it has not given satisfaction to many of the members of the bar, and perhaps not to some of the judges of the courts, yet it has not been recalled nor overruled, and is therefore binding upon the inferior courts of the state. It is suggested that the supreme court has consented to a review of the questions, and it is hoped and expected by the counsel in a case now pending in that court that the decision in the Rice case will he overruled. I do not, however, feel that it is becoming in me, if indeed I have the legal right, to disregard and reject the authority of that case, even if I entertained a different opinion and doubted its correctness.

But without the authority of that casé, and admitting that the courts will interfere to control the enforcement of the rules and regulations of such associations, whether merely voluntary in its strictest sense, or created and maintained for the transaction of business or for the pecuniary gain of its members and the acquisition of property and profits in which its members have a direct interest, still does the present case demand the interference of the court, and does the answer filed by the defendants to the petition of the relator, and to which a demurrer has been filed, present a good and sufficient defense. By filing a demurrer the relator admits all the material facts set up in the answer. Those facts are not very-different from the allegations of the petition, and as the decision of the demurrer to the answer will, in effect, be the same as upon a demurrer to the petition, I will consider the questions in that view.

The' petition is filed by W. N. Sturges, a member of the board of trade of this city, praying for a mandamus to compel the board of directors of said board of trade to proceed and try Geo. Webster, another one of its members, upon a complaint brought under the rules of the corporation.

The complaint is that Webster had refused to comply With a contract made by him with Sturges, for the purchase of corn, setting out that he had been delinquent in payment of margins called and that Sturges had purchased the corn and paid therefor upon Webster’s account, and that Webster had refused to pay the bill presented with the complaint. The petition avers that the board of directors had refused to entertain this complaint, and thereby deprived Sturges of the means of compelling, under the rules of the association, a speedy adjustment of the difference between him and Webster, and that he was prevented from the exercise of, and denied, the privileges and rights to which he was entitled as a member of the board of trade.

The right to have Webster tried, for not paying Sturges’ bill, is the only one which he claims, was denied to him, and to enforce that right by mandamus is the only object sought by the petition. As a result of such trial, if Webster was suspended from his privileges and rights as a member of the board of trade, so far as it concern Sturges, is the expectancy, that Webster, to relieve himself from such suspension, would pay the bill of petitioner.

The real object, therefore, of the complaint made to the board and of this petition for mandamus, is to collect or try to collect a debt. It is not claimed-that any other right or privilege of a member of the board of trade has been denied to the relator. He still has the privilege, by his own showing and by that of the answer, of going upon change and trading and being traded with, and in every other respect enjoying all his rights, privileges and franchises; nor is he deprived of any right of, or interest in, the property of the corporation. He has exercised the right to make a complaint against his fellow member under sec. 7 of rule 4 of the board. That complaint was considered as stated in the answer, and upon consideration in a meeting of the board of directors, as shown by the letter of the secretary of the board, copied in the petition and averred in the answer, “it was voted that the complaint ... be not entertained by the board.” This disposition of it, and its return to the petitioner, he regards as a refusal to receive the complaint and a denial of his right to have the trial of Webster upon the complaint; while the defendants set it úp as a consideration and disposal of the complaint, by the board, in the exercise of its discretion and judgment. This would seem to be so. It was presented at a meeting of the board; it was considered, and they decided by a vote that “it be not entertained.” The reasons for such a disposition of it. are not shown. Nevertheless, there was action upon it, and by a vote taken it was disposed of. Whether because the complaint was not sufficiently certain or did not present an offense, in the opinion of the board, which was a subject of complaint and trial, does not appear. Upon examining the c.omplaint, and the rule of the board under which it was made, it appears to me that it was not such as in such eases should be required. That it would be quashed by & court, if it was on information or indictment, or that a demurrer would be sustained to it for not sufficiently setting •out the offense complained of, I have no doubt. The petition alleges it was made under sec-. 7 of rule 4 of the board, which prescribes that, “When any member of the association has failed to comply promptly with the terms of any business contract or obligation, and has failed to equitably and satisfactorily adjust and settle the same, ... he shall, upon admission or proof of such delinquency, before the board of directors, be by them suspended,” etc. Now the complaint was “non-fulfillment of contract as per bill inclosed, which he refuses to pay,” and “for delinquency of margins being called which he refused to deposit, ’ ’ but there is no statement in the complaint that he had “failed to equitably and satisfactorily adjust and settle the same. ’ ’ It has been seen that he must have failed to comply with the terms of a business contract and failed to equitably and satisfactorily adjust and settle the same before he could be suspended. That he failed to furnish margins, and upon relator’s buying in and paying for the corn, upon Webster’s.account, and Webster’á failure to pay the bill — in other words,' his failure to comply with the terms of the contract — is not, under see. 7 of rule 4, an offense for which he could be tried and suspended. There must have been also a failure to “equitably adjust and settle the same.” This is not a technical but a substantial objection to the complaint. A member may refuse to pay a claim because it is unjust, in whole or in part, without an infraction of the rule' in question. But if there is a claim of failure to fulfill a contract, and he also refuses and fails to adjust and settle it, then he is liable to the discipline prescribed.

To refuse to fulfill a contract or to pay a bill is one thing, to refuse to adjust and settle a difference is another and very different thing, and both must concur to make the offense described in the seventh section.

To adjust and settle requires concurrent action, an agreement by the parties and settlement of differences. The rule contemplates an effort between the parties to adjust and settle a difference which may arise in a business contract, and such an effort is required by the letter and spirit of the rules and regulations of the board, and is consonant with the principles and usages of honorable and fair dealing merchants. The members of the board of directors, while not lawyers, are no doubt very intelligent business men, and could hardly fail to see that such a complaint as was presented against Webster did not contain a charge of failure “to comply with the terms of a business contract” and a failure (also) “to equitably and satisfactorily adjust and settle the same.” They were required, then, to decide that the complaint should be dismissed or entertained. If such was the reason, then it was clearly the exercise of a sound discretion and correct judgment, in the exercise of which, it is well settled, courts will not interfere- Mandamus “will not lie to compel an inferior court to reverse its action in refusing to dismiss” (or, I add, in dismissing) “a bill of complaint, since in passing upon such dismissal the court must necessarily have exercised its judicial functions.” High on Extraordinary Remedies, sec. 173.

Nor will it lie to control corporate officers in the discharge of duties concerning which they are vested with discretionary powers, id. see. 278. The power exercised by the board in the Webster complaint was quasi-judicial, conferred by the rules of the board, to which the relator subscribed and by which he is bound.

Then there is a specific legal remedy for relator’s grievance —he can recover his debt, if it exists, by an ordinary action at law. ‘1 The firmly established rule and fundamental principle underlying the entire jurisdiction (of the courts), that the existence of another specific legal remedy, fully adequate to afford redress to the party aggrieved, presents a complete bar to relief by the extraordinary aid of a mandamus,” unless the recent statute of this state, in force from July 1, 1874, has changed that rule. See. 9 of that act provides that “the proceedings for a writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy where such writ will afford a proper and sufficient remedy.” But, if the writ will not afford a sufficient remedy, then the rule remains, and the writ will or should be denied. What, then, is the remedy sought, and would it be sufficient for the purpose of the relator, viz., to ■collect the debt claimed to be due him. He seeks to compel the board to try Webster, and if they find him guilty, the .award or judgment would be, not to pay the debt, but to suspend him from his privileges as a member of the corporation until he did pay it. The suspension would not necessarily afford the remedy. Webster could abide the suspension and •still refuse to pay the debt, and the board would be powerless to compel the payment. They could threaten and punish by their suspension, and that would be all, so far as they were concerned, and the relator would then be compelled to resort to a court, with power not only to give judgment, but •execute it by sale of the property of the debtor. It is true the fear or the fact of suspension might lead to an equitable adjustment and settlement of the claim,' but that possibility ■or even probability is- hardly a proper and sufficient remedy. If not, then the court can properly deny the writ, because the relator has a specific legal remedy, which he can pursue. Again, this writ is not a writ of right — it is discretionary with the court whether to award it, People v. Hatch, 33 Ill. 9. In this case Sturges has a legal remedy — he has not been disturbed in any of his social, business or property rights as a member of the board of trade except the right to prosecute a member for the non-payment of a claim (which may or may not be disputed), hut has been deprived of that right by a ■decision of the board of directors, that they would not entertain it, for reasons- deemed by them, in the exercise of their discretion and judgment, to be good and sufficient, and that, in a matter not materially, if at all, affecting the public interest, but of private interests, namely, to the relator and Webster. And it does not appear to, me to be a case which requires the exercise of a discretion or the resolving of doubts, if I had any, in favor of the petitioner.

Another thing entitled to consideration is, that it is sought to affect the rights of Webster and to compel his trial, upon a petition for mandamus to which he is no party, and of which he has had no notice. Under see. 7 of the mandamus act (as he has an interest in the subject-matter), he could be made a party defendant.

The facts set out in the answer, without reference to the allegations as to the status of Sturges as a member of, or his past relations to, the board, present, in my opinion, a clear defense to the petition. He is a member of the association, notwithstanding the suit referred to in the answer, and I have not, therefore, given any weight to the facts set out in the answer upon that subject. The demurrer to the answer is therefore overruled. Demurrer overruled.

NOTE.

Before the reading of this opinion Judge Rogers stated to counsel that had he had formed his judgment of the case and wrote out his opinion before the decision of the Supreme Court in Sturges v. Board of Trade, filed at Ottawa, January 21, 1878 (86 Ill. 441), which case counsel had suggested brought into review the decision in Rice v. Board of Trade, 80 Ill. 134, and that he had supposed the counsel woula take some action, either by petition to dismiss or by defendants to amend the answer by setting out the fact that Sturges was no longer a member of the board of trade; but no suggestion being made by either counsel, Judge Rogers read the opinion as prepared. —Ed.


author: Walker, J:—

text:
      (Supreme Court of Illinois. Central Grand Division.)

    N. W. Edwards, et al. vs. The People.
    (January Term, 1878.)
    Appeal — Application fob Leave to Become Plaintiff in Eksoe. Application to permit other persons against whom judgment for taxes was rendered to become parties plaintiff in error denied on the ground that the judgment against each separate tract of land is separate and distinct.
   Walker, J:—

In this case there is an application to permit other persons against whom the judgment was rendered for taxes to become parties plaintiff in error in the case. The decisions of this court have held that while the proceeding is against all the delinquent lands, the judgment against each tract of land is separate and distinct, and that it is not a joint judgment, but a several judgment. The practice is not to admit parties in other cases to come in and make themselves plaintiffs in error, while they were not joint defendants in the court below, in the case that is brought to this court. We are not willing to establish a practice that parties who are parties to another suit, a several judgment, distinct from the judgment before the court, should come in and make themselves parties plaintiff to a writ of error brought to this court. The motion will therefore be denied. The parties to other several judgments have the right of course to prosecute error. Motion denied.

Dickey, J: In this case, in which Justice Walker has announced the decision of the court, I desire to say that in my own view it is a common judgment, although separate, twofold in its character, and that it is competent for several of those against whom judgment has been rendered to unite in an appeal and writ of error, and that the application ought to be allowed.

NOTE.

See same case 88 Ill. 340. — Ed.


author: Dickey, J:—

text:
      (Supreme Court of Illinois. Grand Central Division.)
    T. W. & W. R. R. Co. vs. Lloyd L. Grable.
    (January Term, 1878.)
    Continuance. Application for continuance by appellee so .that the record may be reformed as to the form of the judgment denied where appellant withdraws assignment of error.
   Dickey, J:—

Application is made by the appellee for a continuance, that the record may be reformed as to the form of the judgment. This application is resisted by the appellant. It is alleged that due diligence might have reformed the record before this time. The court does not see how the appellant can be injured by the delay. The appellee is the one whose collection or judgment is delayed by continuance. And there are several errors assigned, and among them there is an error assigned which changes this judgment on account of its form. If the appellant desires to waive that exception or ground of error, which is merely technical and formal, of course there will be no ground of continuance.

Attorney for appellant: I take the liberty to withdraw that exception, ground of error.

Dickey, J: Then of course the motion will be overruled.

NOTE.

See same case 88 Ill. 441. — Ed.


author: Craig, J:—

text:
      (Supreme Court of Illinois. Grand Central Division.)

    Miller, et al. vs. Beckley, et al.
    (January Term, 1878.)
    Injunction. Motion to withdraw injunction bond on file.
   Craig, J:—

Motion is made in this case by appellant to withdraw, the injunction bond which was filed. It has not been the practice of this court to allow papers filed to be withdrawn, but in this ease the controversy between the parties has been settled, and there is a stipulation which is signed by both parties that the appellant may have leave to withdraw this original injunction bond. We cannot see that it will work any damage to any one. The case has been settled. We will allow it to be withdrawn upon leaving a copy on the files.


author: Dickey, J.:—

text:
      (Supreme Court of Illinois. Grand Central Division.)

    Isaac J. Ketchum vs. Servetus N. Thorp.
    (January Term, 1878.)
    Appeal. Motion to dismiss founded upon a clerical error of clerk denied.
   Dickey, J.:—

A motion in this case is made to dismiss the appeal. It was founded upon a clerical error of the clerk in preparing the transcript, which is corrected by an- amendment on record. The motion is overruled..

NOTE.

See same case 91 Ill. 611. — Ed.


author: Scott, J.:—

text:
      (Supreme Court of Illinois. Grand Central Division.)

    Addison C. Taylor, et al. vs. Commissioners of Highways, etc.
    (January Term, 1878.)
    Appeal. Motion to dismiss for want of sufficient bond denied and amendment permitted.
   Scott, J.:—

There was a motion on the.part of the appellee to dismiss the appeal for want of a sufficient bond. Part of the appellants not being parties to the same and also a cross motion on the part of the appellants for leave to amend said bond, for the purpose of adding the parties, the motion to dismiss would be denied and the cross motion allowed, with an extension of time to the 9th inst., within which to make the proposed amendment.

NOTE.

See same case 88 Ill. 526. — Ed.


author: McAllister, J.:—

text:
      (Circuit Court of Cook County.)

      J. V. Farwell & Co. vs. E. Miller.
    (January Term, 1878.)
    Judgment by Confession — Parol Evidence to Vary Written Instrument. Oral agreement that judgment note should be held until the happening oí a contingent event can be shown upon application to vacate the judgment and such evidence does not vary the written instrument.
    The note on which judgment was confessed was given by-defendant to plaintiff’s agent, and it was orally agreed that it should be held by him until the happening of a contingent event. Before the happening of the contingency Farwell & Co. confessed judgment.
    Defendant seeks to vacate judgment, stay execution, and for leave to plead.

      Edwin F. Abbott, attorney for plaintiff.
    It was contended for plaintiff that the evidencé of the contemporaneous agreement was not admissible to vary the terms.of the contract, it being absolute on its face.
    And on the part of 'the, defendant it was alleged that defendant did not seek to vary the terms of the agreement, but to show that the agreement had never taken effect; that there was an oral agreement constituting a condition precedent to the note and power of attorney becoming operative, and that the condition had not happened, and that defendant should be allowed to interpose that defense.

      W. A. Bay, attorney for defendant.
    Defendant’s counsel cited the following cases: Pym v. Campbell, 6 Ellis & Blackb. 370; Wallis v. Littell, 11 C. B. N S. 369; Clark v. Gifford, 10 Wend. 310; 1 Greenl. on Ev., Redfield ed., sec. 284a; Stephens’ Dig. of Ev., p. 89, see. 3; Bell v. Lord Ingestre, 12 Q. B. 318 (E. C. L., vol. 64).
   McAllister, J.:—

The defense here sought to be interposed is analogous to the delivery of a deed as an escrow. Defendant does not seek to contradict the writing, but to show that the writing never became operative.

The terms of the note cannot be varied by parol evidence; but in the present case the defense begins one step earlier. The defendant delivered the note and warrant of attorney to a third party, with the understanding that they were not to take effect except upon the happening of a contingent event, the contingent event never happened.

This is the prima facie case presented. I think the defendant is entitled to plead his defense, and have it submitted to a jury.


author: Gaby, J.:—

text:
      (Superior Court of Cook County.)

    The Fidelity Savings Bank & Safe Depository, Use of Virginius A. Turpin, Receiver, vs. George Shufeldt, Jr.
    (1878.)
    1. Pleading — Assumpsit. A plea of the general issue in assumpsit, that the defendant did not “promise in manner or form” omitting the words “undertake or” is bad on demurrer.
    2. Collateral Securities — Duty of Creditor to Sell. The creditor is not obligated to sell securities which he holds as collateral to an indebtedness even though the debtor requests him to do so.

      General No. 69,821.
    Assumpsit. Plaintiff sues on a note, to secure which certificate of stock of Fidelity Bank & Globe Insurance Company were deposited as collateral, declaration, special and common counts, copy of note sued upon and affidavit of claim. Defendants filed a plea of non assumpsit in substance and form the same as that filed in Chisholm et al. v. McGinnis, Chicago Law J., vol. 1, No. 1, p. 56, and notice of set-off; to which plaintiff demurred. The demurrer was disposed of at February term, 1878, as follows:

      Plummer & Bradford, attorneys for plaintiff.

      Shufeldt & Westover, attorneys for defendants.

       Reversed in part 93 Ill. 597.

   Gaby, J.:—

Let the demurrer be sustained, as decided in Chisholm v. McGinnis.

Mr. Westoveb : The defendants ask leave to amend.

Gaby, J.: You can do so, on filing an affidavit showing that you have a good defense.

To this defendants file an affidavit setting up that the stock deposited was, at the time deposited, valuable, and that while valuable defendant notified plaintiff to sell and apply proceeds to payment of note sued upon. This plaintiff neglected to do, and defendant was damaged thereby, and asks to have his damages set off against this action.

Mr. Bradford : This is no defense in law, and I refer your honor to the following cases: Prettyman v. Barnard, 37 Ill. 109; Rozet v. McClellan, 48 Ill. 347; Story on Bailments, secs. 308-321; Henry v. Eddy, 34 Ill. 508; Cashman v. Hays, 46 Ill. 145; Leake v. Brown, 43 Ill. 372; Belden v. Perkins, 78 Ill. 449; Chicago Artesian Well Company v. Corey, 60 Ill. 73; Coggs v. Bernard, Smith’s Lead. Cas. vol. 1, pt. 1, 384.

Mr. Westoveb : I refer your honor to 28 Minn.

Gaby, J.: Plaintiff was not bound to sell collaterals which defendant had the right at any time to redeem. He did not do so, and could not force plaintiff to the expense and trouble of sale or litigation. Let the plea be stricken out for want of sufficient affidavit of defense. Plea stricken and judgment $4,751.28. Appeal prayed and allowed.


author: Per Curiam:—

text:
      (Supreme Court of Illinois. Northern Grand Division.)

    Felix K. Misch, et al. vs. Minor N. Knowlton.
    (January 21, 1878.)
    Affidavit of Merits — Stipulation to Vacate Judgment — Right of Court to Impose Conditions. .Where it was stipulated and agreed “by counsel and by the court” that judgment might be entered against the defendants for $408.15, and that if the defendants should by affidavit show a good defense to the suit, upon the merits, the judgment should be set aside; and subsequently the affidavit of one of the defendants was filed, showing a meritorious defense to all of the note upon which the judgment had been rendered, except $81.27, and a motion was made to vacate the judgment, but the court refused to grant the motion unless the defendants would actually pay plaintiff the amount conceded to be due by the affidavit; it was held to be error.
    Appeal from superior court of Cook county.
   Per Curiam:—

This was an- action of assumpsit, brought by appellee to recover a balance claimed to be due upon a promissory note; 'to the declaration appellant interposed a demurrer, and at the same time entered a motion to strike from the files the affidavit of claim, on account of certain supposed defects it contained; the court overruled the demurrer, and denied the motion to strike from the files the affidavit, but, as appears from the bill of exceptions contained in the record, it was then stipulated and agreed in open court “by counsel and by the court” that judgment might be entered against the defendant for $408.15, and that if the defendants should by affidavit show a good defense to the suit, upon the merits, the judgment should be set aside. Subsequently the affidavit of one of the defendants was filed, showing a meritorious defense to all of the note upon which the judgment had been rendered, except $81.27, and a motion was made to vacate the judgment, but the court refused to grant the motion unless the defendants would actually pay plaintiff the amount conceded to be due by the affidavit. In this we are of opinion the court erred. When appellants filed an affidavit which complied with the stipulation under which the judgment was rendered, they were entitled to have the judgment vacated, and had a right to plead. The court had no power to impose a condition not embraced in the stipulation. It was no part of the stipulation that defendants should pay any part or parcel of the plaintiff’s demand, and all that they could be required to do was to file an affidavit which declared a meritorious defense. This they did, and the judgment should have been set aside, and defendants allowed to plead.

For the error indicated, the judgment will be reversed and the cause remanded. Judgment reversed and remanded.


author: Breese, J.,

text:
      (Supreme Court of Illinois. Northern Grand Division.)
    James Mix vs. The People, on the application of C. P. Singest, County Treasurer.
    (September Term, 1877.)
    1. Taxes — Application for Judgment for — Burden of Proof. An application for judgment for delinquent taxes is a summary proceeding and the burden of proof is upon the party whose lands are charged. The court presumes that the assessor performed his duty.
    2. Same — Trial by Jury. In an application for judgment for delinquent taxes the delinquent is not entitled to a trial by jury.
    3. Same — Change of Venue. In an application for judgment for delinquent taxes the delinquent is not entitled to a change of venue.
    Appeal from the county court of Kankakee county: Hon. C. R. Storr, presiding. Opinion filed January 21, 1878.

      Stephen R. Moore, attorney for appellant.
   Breese, J.,

delivered the opinion of the court:—

This is an appeal by James' Mix from the county court of Kankakee county on the application of the county treasurer and collector of that county, for judgment against the lands of appellant alleged to be delinquent in the payment of¡ the taxes assessed against the same.

The points made on this appeal are: First, that a motion for a change of venue was denied; second, that a trial by jury was refused; third, there was no proof that the property had been assessed; fourth, it was error to admit in evidence the delinquent list.

No one of these objections is tenable. An application for judgments for delinquent taxes is a summary proceeding, and governed by the revenue act. The act in relation to change of venue and to trial by jury have no application to such a case. It is not a suit in legal parlance.

It has been often held by this court that the party whose lands are charged as being delinquent must make the proof. It is not incumbent on the collector to prove it, for it is an act, with which he is not in privity. He is not required to make any proof of the acts of the assessor. Durham v. The People, 67 Ill. 414. The presumption is, the assessor and all other officers performed their duty.

The revenue act makes the collector’s return of the lists of delinquent lands evidence. Parties can make objections at the proper time, if there be any. It is for the land-owner to point them out. So far as we can discover, the writ in this ease complied with the statute.

The other points are settled by Buck v. The People, 78 Ill. 560, and Mix v. The People, 81 Ill. 118.

The judgment must be affirmed. Judgment affirmed.


author: Craig, J,:—

text:
      (Supreme Court of Illinois.)
    Martha E. Emmons, et al., etc. vs. Catherine Moore.
    (January Term, 1878.)
    Rehearing. Correction of expressions in opinion.

      Scoville & Bayley, for appellants.

      Sleeper & Whiton, for appellee.
   Craig, J,:—

There is a petition for a rehearing, which has been examined, but the court do not see sufficient ground to disturb the judgment that was entered when the cause was considered. The petition will be denied. We will, however, take occasion to correct some expressions in the opinion, not, indeed, to change the judgment in any respect.

See 85 Ill. 304. — Ed.


author: Walker, J.:—

text:
      (Supreme Court of Illinois.)

    Peters vs. Banta.
    (January Term, 1878.)
    Appeal. Appeal will not be dismissed because bill of exceptions is stricken out of record.
   Walker, J.:—

There is a motion entered to dismiss the appeal because the bill of exceptions has been stricken out. We can see no reason for dismissing the appeal because there is no bill of exceptions. A party can appeal without a bill of exceptions if he wants to raise questions independent of the proceedings had upon the trial before the jury. The motion will be denied.


author: Craig, J.:—

text:
    (Supreme Court of Illinois.)
    Francis M. Richardson vs. Henry Deming.
    (January Term, 1878.)
    Jurisdiction. Appeal dismissed for want of jurisdiction.
   Craig, J.:—

There is a motion to dismiss the appeal. It appears from the record, that this was an action in assumpsit, and the amount recovered was $75; the judgment being recovered on the 7th of August, when an appeal was taken to this court. An appeal in this ease does not lie to this court, but since the establishment of the appellate courts should have gone to that tribunal. The appeal will be dismissed, and leave will be given to withdraw the record, if desired, in order to take an appeal to the proper court.


text:
      (Supreme Court of Illinois.)
    The Howe Machine Co. vs. Sam. Layman, etc.
    (January Term, 1878.)
    Briefs. Motion for extension of time to file.
   Walker, J.:—

There is a motion by appellant for further time to file brief. In this case the court thinks there are grounds for an extension of the time. The time will be extended six days. That, however, will carry it past the call. The case will be taken when it is reached on the call, unless appellee shall object, and if the party applying fails to comply with the rule for extension of time by filing his brief, the submission will be set aside and the judgment affirmed.


author: Craig, J.-

text:
      (Supreme Court of Illinois.)
    Francis M. Richardson vs. Henry Deming.
    (January Term, 1878.)
    Jurisdiction. Appeal dismissed for want of jurisdiction.
   Craig, J.-

There is a motion to dismiss the appeal. • It appears from the record that this was an action in assumpsit, and the amount recovered was $75; the judgment being recovered on the 7th of August, when an appeal was taken to this court. An appeal in this case does not lie to this court, but since the establishment of the appellate courts should have gone to that tribunal. The appeal will be dismissed, and leave will be given to withdraw the record, if desired, in order to take an appeal to the proper court.


text:
      (Supreme Court of Illinois.)
    The Howe Machine Co. vs. Sam. Layman, etc.
    (January Term, 1878.)
    Briefs. Motion for extension of time to file.
   Walker, J.:—

There is a motion by appellant for further time to file brief. In this case the court thinks there are grounds for an extension of the time. The time will be extended six days. That, however, will carry it past the call. The case will be taken when it is reached on the call, unless appellee shall object, and if the party applying fails to comply with the rule for extension of time by filing his brief, the submission will be set aside and the judgment, affirmed.


author: Scott, J.: — ■

text:
      (Supreme Court of Illinois.)

    The People on the Relation of Glenn vs. Thos. S. Needles.
    (January Term, 1878.)
    Mandamus. Leave to file petition for. If respondent demurs to petition no process is necessary. Where only private interests are involved case will not be advanced.
   Scott, J.: — ■

In this case the motion is for leave to file a petition for a mandamus. We see no reason why leave should. not be granted to file the petition. As the attorney-general has entered a demurrer to the petition there is no necessity for awarding process. Only private interests are involved in the litigation and the ease will be placed upon the docket and called in its regular order.


author: Farwell, C. J.:

text:
      (Circuit Court of Cook County. In Chancery.)

    Martin vs. Fee.
    (Dec. 24, 1877.)
    Practice — Motion for a Restraining Order — Affidavit Not Entitled in the Case, Etc. — Amendment. Where an affidavit is made and filed in a case, and duly entitled’ therein, before an amendment to the bill is made and filed, it is properly entitled in the cause and will stand as to a subsequent amendment. One good affidavit supporting the facts in the bill is sufficient to ground a motion for a restraining order.
    Motion for restraining order. Heard before Farwell, C. J. Gen. No. 27,234.
   Mr. TCerjr. : Your honor, I wish an injunction or a restraining order.

Mr. King: His bill is not good for anything. It is not verified. The so-called amendment is not embodied in it.

Mr. Kerb: There are affidavits in support of the amendments.

Mr. King: The amendment has no venue or jurat. You. might as well file a newspaper.

Farwell, C. J.:

He says that the facts herein stated are-verified by affidavit.

Mr. Kerr: We don’t make any defense as to the title to these goods. They are simply pledged. One man has the custody and the other the warehouse receipts. What we want, is to have the goods remain in statu quo. We want a restraining order for our protection.

Mr: King: The affidavits are neither of them entitled in the case. The last don’t appear to be entitled in either case.

Farwell, C. J.: What is the objection to the first affidavit ?

Mr. King:. The objection to the first is that it is not entitled in the case; and to the second one, that it is not entitled in any court.

Farwell, C. J.: The first one is entitled in the case as it. was before the amendment. This affidavit was made before-the amendment in fact was made, and when the affidavit in-fact was made, there was such a suit in court, so that they would be bound by the affidavit. He took leave to amend, and did not amend. I think it will stand. If there is one-good affidavit stating the facts, that will probably be sufficient. The first one, I think, is entitled in the ease as it then was. He will be guilty of perjury if that was not true when, made. I don’t know why they can’t use a paper filed in a case before the amendment. It would not be necessary, because of an amendment, to have the parties all sworn over-again.


author: Gary, J.:

text:
      (Superior Court of Cook County.)

    Max Stern vs. George Eager, et al.
    (December Term, 1877.)
    Practice — Application to Withdraw Demurrer and Plead Over in an Action on an Appeal Bond Where no Defense is Shown. Leave will not be granted to withdraw a demurrer and plead over, unless there is an actual defense shown by affidavit setting up the extrinsic facts relied upon.
    Demurrer to plaintiff’s declaration.
    Gen. No. 69,142.

      Philip Stein, attorney for plaintiff.

      Ricaby & Landis, attorneys for defendant, Curtis.
   Mr. Landis : Your honor, this is a demurrer to the plaintiff’s declaration. I ask leave to withdraw the demurrer and file a plea.

Gary, J.:

I would not permit any pleading over unless there was an actual defense shown.

Mr. Landis : This was an action on an appeal bond, on an appeal to the appellate court.

Gary, J.: Then you have got your objection on the record. If the bond is an invalid one, then you have your objection on the face of the record. If the question is one of law on the face of the bond, you don’t need to plead over. If the question is one of fact, why then, unless he (plaintiff’s counsel) consents, you can show by affidavit what the extrinsic facts are before I can give leave to amend in a case of this sort. You will have to set up what the circumstances are in order to get leave to amend. The plea and the affidavit must be presented first.

Mr. Landis : I think this is a case where we ought to be allowed to plead over.

Gary, J.: I believe the declaration recites that the appellate court made a rule that you should file an additional and further appeal bond, which you did not do. Under the 70th preme court shall be dismissed by reason of any informality section of the practice act, “Hereafter no appeal to the su- or insufficiency of the. appeal bond, if the party taking such appeal shall, within a reasonable time, to be fixed by the court, file a good and sufficient appeal bond in such cause, to be approved by said court. ’ ’ Now the declaration avers that the case was taken to the appellate court, and that you did not file any new bond. Now whether the bond which procured the stay of execution from the time that the bond was filed by the circuit court until the appeal was dismissed in the appellate court is a binding obligation which may be collected from the defendants is a question of law which appears upon the record. You don’t need to appeal. If it is bad, then upon the demurrer the judgments should be a bar to the defendants. So there is nothing to plead.

Mr. Landis : We want to show wherein it is bad.

Gary, J.: Whether it is good or bad appears on its face. If you have any case showing that the neglect to put in that bond to the first district — that is the apparent defect, that it don’t recite an appeal to the first district, — it simply recites an appeal to the appellate court, — then I will hear you. If not, then let the demurrer be overruled and judgment go for the plaintiff. Leave to plead denied. Motion denied.


text:
      (Superior Court of Cook County.)

    Anonymous.
    Practice. 1. Leave to reply double — Replication de injuria, when allowable. 2. Notice of motion — When necessary.
   Counsel: I ask leave to reply double.

Gary, J.:

Have you given any notice of the application to reply double?

Counsel: You gave me leave to reply.

Gaby, J.: I gave you leave to reply, but that was not a double application. Why don’t you reply generally? The replication de injuña would be applicable in that ease. ■ Look in Smith’s Leading Cases as to the replication de injuria as to the action of assumpsit. Crogate’s Case, 1 Smith’s Lead. Cas. part I, pp. 247-262. I don’t make any order without notice to the other side. I don’t give leave to reply double without notice. Whenever there is necessity to apply to the court there must be notice to the other side.


text:
      (Superior Court of Cook County.)

    Anonymous.
    Practice — Trover. No affidavit of merits required in action of trover.
   Mr. Cowen : Your honor, 6360. I want to move the court for a default in that ease for want of a plea and affidavit of merits. It is an action of trover.

Gary, J.:

There is no affidavit of merits wanted in an action of trover. The statute don’t require it.

Mr. Cowen: Yes, but there is a contract there your honor.

Gary, J.: That don’t matter. An action of trover can’t be based upon a contract for the payment of money. There is nothing in that. Motion overruled.


text:
      (Superior Court of Cook County.)

    Anonymous.
    Appeal. To superior court by one defendant. Service on co-defendants.
   Gary, J.:

Where an appeal is taken to the superior court by one of several defendants, there must be service on the other defendants before you can proceed in that court. •


text:
      (Superior Court of Cook County.)

    Anonymous.
    (January 5, 1878.)
    Continuance. By stipulation of counsel after a suit is set down for trial by the court.
    Plaintiff’s counsel asked for a continuance until the following morning at 10 a. m.
   Gary, J.:

The case has been set for trial and I have no right of my own motion to grant a continuance. If you will stipulate for a continuance you may arrange it between yourselves. If you will stipulate not to non-suit, the other side can safely consent to a continuance.

Mr. Stores : We will stipulate not to non-suit or get beat either.

Gary, J.: You had better stipulate not to non-suit first.

Mr. Stores : We will, your honor.