text:
    The City of East St. Louis v. The People ex rel. Phillip M. Gundlach.

      Filed at Springfield May 9, 1888.

      1. Municipal indebtedness—constitutional limitation—-as not extending pre-existing powers. The constitutional provision that no municipal corporation shall be allowed to become indebted to an amount exceeding five per cent on the value of the taxable property therein, etc., is a limitation, upon the power of the legislature to authorize cities of the State to contract indebtedness, and does not operate as a repeal of a clause in a city charter granted prior to the adoption of the constitution of 1870, which prohibits the city from contracting an indebtedness in excess of an amount less than five per cent. It was not intended to authorize a city to become indebted to the full amount of the five per cent, without regard to the limitations in its charter as to the extent of its power to create indebtedness.
    2. Same—levy of a tax to pay interest and to provide a sinking fwnd— constitutional requirement — effect thereof on pre-existing city charters. The provision of section 12, article 9, of the constitution of 1870, that any municipal corporation incurring any indebtedness under authority of law, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same, will operate as a repeal of a clause in a special charter of a city, that its council shall collect an annual tax not exceeding one per cent per annum on all property, etc., and that of this one per cent it shall collect not more than three mills on the dollar for the purpose of paying the interest on the bonds and providing a sinking fund, etc., when that sum is not sufficient to pay the interest and discharge the principal in twenty years.
    3. This constitutional provision, that no municipal corporation shall incur any indebtedness without providing for the collection of an annual tax sufficient to pay the interest as it matures, and to discharge the debt within twenty years, is self-executing, as, of itself, it supplies a sufficient rule by means of which the duty imposed may be enforced. No supplemental legislation is necessary in order to make it effectual.
    4. Same—remedy to compel the levy of taxes to meet the constitutional requirement. Where a city organized under a special charter has incurred an indebtedness since the adoption of the constitution of 1870, it is its duty, no matter what are the limitations of its charter, to provide for the collection of an annual tax sufficient to meet the interest thereon, and to liquidate the debt within twenty years; and if it fails to do so, and allows the debt to mature, the courts will compel it to levy a tax sufficient to pay the same, with the arrears of interest, at once.

      Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. Robert A. Halbert, and Mr. Jesse M. Freels, for the appellant:
    It is a sufficient answer to the application for the writ, in any ease, that the respondent has no authority of law to do the act sought to he coerced. Cooley on Taxation, 726, and notes; Comrs. of Highways v. People, 99 Ill. 587; United States v. Clark County, 95 U. S. 783; People v. Village of Crotty, 93 Ill. 180.
    It will not lie to compel the levy of a tax in excess of the local limitation, nor to compel the payment of judgments, or other demands, to an extent that would deprive the municipality of means for ordinary and necessary municipal purposes, nor to appropriate a part of its revenue already raised, to pay demands not provided for in raising it, when all such revenue is already appropriated, and the law forbids any diversion, or there is or can be no surplus. Cooley on Taxation, (2d ed.) pp. 738, 739; Town of Sparland v. Bonnies, 98 Ill. 595; People ex rel. v. City of Cairo, 50 id. 154; East St. Louis v. Trustees, 6 Bradw. 133; East St. Louis v. Seim, id. 76; United States v. Macon County, 99 U. S. 582; East St. Louis v. Zebley, 110 id. 321; Clay County v. McAleer, 115 id. 616; Cope v. Collins, 37 Ark. 649; Cromartie v. Commissioners, 87 N. C. 134; 85 id. 211; Coffin v. Davenport, 26 Iowa, 515.
    The charter of the city of East St. Louis limits the rate of taxation to one per cent per annum, upon the value of the taxable property within its jurisdiction. 1 Private .Laws of 1869, art. 3, sec. 1, p. 887.
    The rule as to such limitation has been held by this court to apply to other cities in which the rate of taxation is limited by their charters. Weber v. Traubel, 95 Ill. 427; People ex rel. v. City of Cairo, 50 id. 134; Town of Sparland v. Barnes, 98 id. 545; Edwards v. People, 88 id. 340; Binkert v. Jansen, 94 id. 283; Burroughs on Taxation, sec. 129; Cooley on Taxation, 347, 349, 350, 738; Supervisors v. United States, 18 Wall. 71; Jeffreys v. Lawrence, 42 Iowa, 505; Clarke v. Davenport, 14 id. 494; Porter v. Thompson, 22 id. 391; Webster v. People, 98 Ill. 343.
    If the amount of tax so limited has already been levied for the year, a further levy, on any pretense, is void. Cooley on Taxation, (2d ed.) pp. 349, 350; Jeffreys v. Lawrence, 42 Iowa, 505; Cummings v. Fitch, 40 Ohio St. 56; State v. Humphreys, 25 id. 520; Vance v. Little Rock, 30 Ark. 435; Shackleton v. Guttenberg, 39 N. J. L. 661; Sterling v. Harvey, 45 Iowa, 466; Wattles v. Lapeer, 40 Mich. 627; Commissioners of Osborne County v. Blake, 25 Kan. 356; Cromartie v. Cummings, 85 N. C. 211; United States v. Macon County, 99 U. S. 590; United States v. Lincoln County, 5 Dillon, 198; In re M. E. Church, 66 N. Y. 395.
    It is contended that section 12, article 9, of the constitution, abrogates section 1, article 3, and section 22, article 7, of the •charter of the city, and is substituted therefor as a part of the ■charter, and that it confers upon the city the power to levy any rate of taxation necessary to pay any indebtedness it may incur. But the constitution is not a grant of power, but a limitation thereof. Cornell v. People, 107 Ill. 380; Cooley’s Const. Lim. (5th ed.) 47.
    Section 12 is a limitation on the power to contract indebtedness. It has nothing to do with municipal taxation. Sections 9 and 10, of article 9, cover the whole subject of municipal taxation. Braun v. Chicago, 110 Ill. 192; Wetherell v. Devine, 116 id. 639.
    Section 1 of the schedule of the constitution continues in force all the rights of corporations, and if any part of any city •charter is repealed by the constitution, it must be by implication, which kind of repeal is not favored. Cooley’s Const. Lim. 183; Covington v. East St. Louis, 78 Ill. 549; East St. Louis v. Maxwell, 99 id. 439.

      This rule has peculiar force in the case of laws of special and local application, which are never to be deemed repealed, by general legislation except upon the most unequivocal manifestation of intent to that effect. Cooley’s Const. Lim. 183 ;. East St. Louis v. Maxivell, 99 Ill. 439.
    Mr. F. G. Cockrell, also for the appellant.
    Messrs. Sanders & Bowers, for the appellees:

      Mandamus is the only remedy to compel a municipal corporation to levy a tax to pay a judgment against it. Louisiana ex rel. v. Police Jury, 111 U. S. 716; Knox County v. Aspinwall, 24 How. 376; United States v. New Orleans, 98 U. S. 381; United States v. Fort Scott, 99 id. 152; Benbow v. Iowa City, 7 Wall. 175; Hoffman v. City of Quincy, 4 id. 535; County of Cass v. Johnson, 95 U. S. 360; Wood on Mandamus, 23, 25; 10 Wend. 363.
    In the issue of the bond and coupons that entered into this-judgment, the city authorities had printed thereon the laws- and ordinances under which they were issued. These recitals, and the constitutional provisions that bear upon the legal questions involved in the issue of the bond and coupons, thus became a part of the contract between the city and the holder of its bonds and coupons, and the plaintiff in error is bound, by them in this proceeding. Murray v. Charleston, 96 U. S. 455; Louisiana ex rel. v. Police Jury, 111 id. 716; Const, of 1870, sec. 10, art. 19; Hurd’s Stat. p. 68; Law v. People, 87 Ill. 385; Pendleton v. Amy, 13 Wall. 297; VanHostrop v. Madison, 1 id. 384; East St. Louis v. Amy, 120 U. S. 600.
    The power to issue the bond and the coupons is found-in. the charter of the city, the ordinance, and in section 12, article 9, of the constitution. United States v. Railroad Co. 17 Wall. 322; Tennessee v. Sneed, 96 U. S. 69; Police Jury v. Shreveport, 5 La. Ann. 661; People v. Monis, 13 Wend. 325; Louisiana ex rel. v. Police Jury, 111 U. S. 716; East St. Louis v. Amy, 120 id. 600.

      The constitution of 1870 abrogated all limitations of the ■ taxing power of the city charter inconsistent with its terms. Angell & Ames on Corp. (11th ed.) 835, 836; United States v. Railroad Co. 17 Wall. 322; Cooley’s Const. Lim. 235; Railroad Co. v. McClure, 10 Wall. 511; People v. Morris, 13 Wend. 325; State Bank v. Knoop, 16 How. 369; Hampshire v. Franklin, 16 Mass. 76; Marietta v. Fearing, 4 Ohio, 427; Berlin v. Gorham, 34 N. H. 266; Dillon on Mun. Corp. 75; Const, of 1870, sec. 10, art. 9; Hurd’s Stat. 1885, p. 68.
    The authority possessed by a municipal corporation to create a debt and issue bonds therefor, includes the power to levy a tax for their payment. Pierce on Railroads, 98; Seybert v. Pittsburg, 1 Wall. 272; United States v. New Orleans, 98 U. S. 381; Hancock v. Chicot County, 32 A. R. 575; Lowell v. Boston, 111 Mass. 460; Hasbrouck v. Milwaukee, 25 Wis. 122; Parsons v. City of Charleston, Hughes, 282; Loan Association v. Topeka, 20 Wall. 665; Savings Bank v. Concord, 92 U. S. 629; Commonwealth v. Alleghany County, 37 Pa. 277; Hyde Park v. Ingalls, 87 Ill. 13; Dutton v. City of Aurora, 114 id. 138; City of Galena v. Corwith, 48 id. 423; City of Cairo v. Campbell, 116 id. 305; City of Quincy v. Warfield, 25 id. 279.
    The city, as we understand, does not deny that they have power, under their charter, to levy the three-mill tax for interest, and power to tax for a sinking fund, to liquidate the debt when due. This power, possessed under the charter, which it was the duty of the city to exercise for the benefit of its creditors, and which it has not exercised, would give the defendant a right to a mandamus to compel the levy of a tax to pay his judgment, and costs, even if there were no other source of power, or law in support of his right. Knox County v. Aspinwall, 24 How. 376; Benbow v. Iowa City, 7 Wall. 313; Hoffman v. City of Quincy, 4 id. 534; Supervisors v. Rogers, 7 id. 175; Supervisors v. Durant, 9 id. 415; County of Cass v. Johnston, 95 U. S. 360; Hyde Park v. Ingalls, 87 Ill. 10.

      Mr. Franklin A. McConaughy, also for the appellees:
    A law can not he in force in this State, no matter when passed, which contravenes the provisions of the constitution. People v. Maynard, 14 Ill. 421; Beesman v. City of Peoria, 16 id. 485; Town of Lewiston v. Proctor, 23 id. 535.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a mandamus proceeding brought to compel the city of East St. Louis to levy upon the real and personal property, subject to taxation within the jurisdiction of the city, a special tax sufficient to pay a judgment recovered by the relator against said city at the September term, 1886, of the circuit court of St. Clair county, and to see that the tax so levied, when collected, be set apart and applied exclusively to the payment of such judgment and the costs of suit.

The judgment, which was for $1074.94, was recovered upon a bond of said city for $500 and eight 'annual interest coupons thereto attached for $50 each, issued by said city on July 26, 1873, and payable to John B. Lovingston or bearer ten years after date. The bond and coupons were issued in pursuance of an Act of the Legislature of Illinois, approved and in force March 26, 1869, entitled “An Act to reduce the charter of East St. Louis and the several acts amendatory thereto into one act, and revise the same,” and also in pursuance of an ordinance passed by the City Council of said City entitled, “An ordinance to fund the floating debt of the City of East St.Louis,” approved and in force June 6, A. D. 1872.

The petition for mandamus was answered by the defendant, the City of East St. Louis; the petitioner filed a general demurrer to the answer; the Circuit Court sustained the demurrer ’ and the defendant elected to stand by its answer; thereupon judgment was entered in accordance with the prayer of the petition and an appeal taken to this Court.

The main question, presented by the pleadings and in the arguments of counsel, is whether the Constitution of this State, adopted in 1870, removed from the charter of the City of East St. Louis the limitations therein contained as to the amount and rate of taxation to he imposed by the City Council for the payment of bonded indebtedness incurred after the adoption of the Constitution of 1870.

So much of section 12 of article 9 of the Constitution of 1870, as is applicable to the question involved, is as follows:

“No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring of such indebtedness. Any county, city, school district, or other municipal corporation, incurring any indebtedness as aforesaid, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same.”

The sections of the charter bearing on the question in controversy are:

First—Art. 3, sec. 1. “The City Council shall have power to collect an annual tax, not exceeding one per centum per annum, upon all property, real and personal, within the jurisdiction of the city, upon the assessed value thereof, in such manner as may be prescribed by ordinance, not inconsistent with the Constitution of this State,” etc. (1 Priv. L. 1869, p. 887.)

Second—Sec. 4, id. “The City Council shall have power to appropriate money, and provide for the payment of the debt and expenses of the city, to borrow on the credit of the city a sum of money not exceeding one hundred thousand dollars ($100,000); to issue bonds, scrip or certificates of indebtedness therefor,” etc.

Third—Art. V, sec. 22. “A registry shall be kept of all bonds, scrip or certificates of indebtedness issued, showing a full exhibit of all material facts in relation thereto; and the City Council shall levy and collect a tax, not exceeding three mills on the dollar, upon each annual assessment made for general purposes, for the purpose of paying the interest on such bonds, scrip or certificates of indebtedness, and to provide a sinking fund to liquidate the same.” (1 Priv. L. 1869, pp. 904, 905.)

The question in this case is not whether the prohibition, which forbids a municipal corporation from becoming indebted to an amount exceeding five per cent of the assessed value of its taxable property, repeals or abrogates a provision in the charter limiting the indebtedness of the city to an amount less than such five per cent. It is not claimed that a city may incur an indebtedness greater than that to which it is limited in its charter, provided only such indebtedness does not exceed five per cent of the assessed value of its taxable property. The constitutional provision that no municipal corporation shall be allowed to become indebted to an amount exceeding five per cent, etc., is a limitation upon the power of the legislature to authorize cities of the State to contract indebtedness; therefore such constitutional provision could not operate as a repeal of a clause in a city charter, which prohibited the city from contracting an indebtedness in excess of an amount less than five per cent; it was not intended to authorize a city to become indebted to the full amount of the five per cent without regard to the limitations of its charter as to the extent of its indebtedness.

We have been referred to no provision in the charter of East St. Louis, which limits the power of that city to incur indebtedness to any particular amount. Section 4 of article 3 of its charter permits it to borrow, on the credit of the city, a sum not exceeding $100,000 and to issue bonds therefor, but it is not contended that bonds have been issued to a greater amount than $100,000.

Section 1 of article 3 of the charter gives the City Council the power to collect an annual tax, not exceeding one per centum per annum, upon all property real and personal within the jurisdiction of the city upon the assessed value thereof in such manner as may he prescribed by ordinance, etc. Section 22 of article 7 provides that the council shall levy and collect a tax not exceeding three mills on the dollarr upon each annual ■assessment made for general purposes for the purpose of paying the interest on such bonds, etc., and to provide a sinking fund to liquidate the same. The charter containing these provisions was passed in March, 1869.

Afterwards in the summer of 1870 the Constitution of 1870 was adopted, which provides, in section 12 of article 9, as ■above quoted, that any municipal corporation, incurring any indebtedness under authority of law not exceeding the five per cent above named, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due and also to pay and discharge the principal thereof within twenty years from the time of contracting the same.

Evidently there is here a direct conflict between the language ■of the charter and the language of the constitution as to the amount and percentage of the annual tax to be collected.

The charter says, that the council shall collect an annual tax not exceeding one per cent per annum on all property, etc., and that, of this one per cent, it shall collect not more than three-tenths, or three mills on the dollar, for the purpose of paying the interest on the bonds and providing a sinking fund, •etc. On the other hand, the Constitution says, that the council shall, before or at the time of incurring the indebtedness, pro-wide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due and also to pay the principal within twenty years, etc.

By the terms of the constitution the annual tax must be sufficient to pay the interest as it becomes due and the principal in twenty years; by the terms of the charter the annual tax must not be more than one per cent for all purposes and not more than three-tenths of one per cent for the purpose of paying the interest on the bonds and providing a sinking fund to liquidate the indebtedness.

If the City Council levies and collects an' annual tax of only three-tenths of one per cent to pay interest and provide a. sinking fund, and such amount is not sufficient to pay the interest as it falls due and to discharge the principal in twenty years, then the council fails to do what the constitution requires to be done.

It is very clear that the charter of East St. Louis prescribes-one rate of annual taxation for the payment of the corporate-indebtedness, and the constitution prescribes another and different rate. The indebtedness, represented by the bond sued on in this case, was incurred after the constitution of 1810' was adopted, as the bond was not issued until July, 1813.

The constitutional provision now under consideration is self-executing. “It supplies a sufficient rule by means of which * * * the duty imposed may be enforced.” (Cooley om Const. Lim. page 100, (5th ed.)) No supplemental legislation is necessary in order to make it effectual. (People v. Bradley, 60 Ill. 390; Kine v. Defenbaugh, 64 id. 291; Mitchell v. Indianapolis and St. Louis Railroad Co. 68 id. 286; Lato v. People,. 81 id. 385.)

This provision is also in conflict with those portions of the-charter of East St. Louis, which limit the rate of annual taxation to any other percentage than that which is sufficient to-pay the interest as it falls due, etc. Consequently it repeals and abrogates such portions of the charter and must be substituted for them in the charter itself. Its effect began with the life of the constitution and annulled all previous charter limitations inconsistent with it in relation to indebtedness incurred after the adoption of the constitution. (Hills v. City of Chicago, 60 Ill. 86; People v. McRoberts, 62 id. 38; Mitchell. v. Indianapolis and St. Louis Railroad Co. supra.) A law can not be in force in the State no matter when passed, which contravenes the provisions of the constitution of the State. (State ex rel. v. Maynard, 14 Ill. 419.)

The precise question now under discussion has been recently decided by the Supreme Court of the United States in the case of East St. Louis v. Amy, 120 U. S. 600, where it is held that the limitations in the charter of the City of East St. Louis as to the rate and amount of annual taxation are repealed by section 12 of Article 9 of our constitution. In that case the Federal Court says: “Under this provision of the constitution no municipal corporation could incur a debt without legislative authority, express or implied, but the grant of authority carried with it the constitutional obligation to levy and collect a sufficient annual tax to pay the interest as it matured and the principal within twenty years. This provision for the tax was written by the constitution into every law passed thereafter by the legislature allowing a debt to be incurred; and, in our opinion, it took the place in existing laws of all provisions for taxation to pay debts thereafter incurred under old authority, which were inconsistent with its requirements. It was made by the people a part of the fundamental law of the State that every debt incurred thereafter by a municipal corporation, under authority of law, should carry with it the constitutional obligation of the municipality to levy and collect all the necessary taxes required for its payment.”

We concur in the views expressed in the Amy case upon the main question here stated, and also upon the further question as to the power of the court below to order a tax to be levied sufficient in amount to pay the entire judgment at once.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    The Coal Run Coal Company v. Patrick Finlen.

      Filed at Ottawa May 9, 1888.

    1. Taxation—classifying corporations, and applying different methods /or ascertaining values—whether violative of the mile of uniformity—the constitution construed. Section 1 of article 9, of the constitution of 1870, providing that “the General Assembly shall have power to tax peddlers, * * * an0 persons or corporations owning or using franchises and privileges, in such manner as it shall, from time to time, direct by general law, uniform as to the class upon which it operates,” does not prohibit the legislature from providing one method for determining the value of the capital stock, including the franchise, of a railway company, another method for a mining corporation, and still another for manufacturing corporations.
    2. The constitution does not prohibit the legislature from pla'cing certain specified corporations in one class, and providing a uniform method of assessment for that class, and placing certain other specified corporations in another class, and providing a uniform manner of assessment for that class, different from that in the other class. The rule of uniformity applies to the class, and not as to all corporations alike.
    3. Same—the statute on that subject—its constitutionality. Division 4 of section 3, of the Revenue law, providing for taxation of the capital stock of corporations, except that of banks organized under the laws of the State, and directing that companies and associations organized for purely manufacturing purposes, or for printing, or publishing of newspapers, or for the improving and breeding of stock, shall be assessed by the local assessor, in like manner as the property of individuals is required to be assessed, instead of being assessed by the State Board of Equalization, as other corporations, is not unconstitutional, or violative of the rule of uniformity required in taxation.
    4. Same—State Board of Equalisation—partial assessments—whether controlled by the cowrts. The fact that the capital stock of some corporations may not have been assessed by the State Board of Equalization, affords no ground of relief as to other corporations whose capital stock may have been so assessed. The legislature has empowered the State board to assess the capital stock, including the franchise, of certain corporations organized under our law, and it is no part of the duty of a court of equity to interfere with the action of that body, unless the evidence discloses fraud in making the assessment.

      Appeal from the Circuit Court of La Salle county; the Hon. Dobbance Dibell, Judge, presiding.
    Messrs. Bull & Strawn for the appellant:
    The law in question violates the rule of uniformity required by section 1, article 9, of the constitution. Cooley’s Const. Lim. 616, 617, 622, 624, 641;. Cooley on Taxation, 128,129, (note 2,) 152,153; Weeks v. Milwaukee, 10 Wis. 242; Primm v. Belleville, 59 Ill. 142; O'Kane v. Treat, 25 id. 561; Jacksonville v. McConnel, 12 id. 138; Madison County v. People, 58 id. 456; Chicago v. Larned, 34 id. 203; Lin Sing v. Washburn, 20 Cal. 524.
    If the law violates the rule of uniformity, courts of equity will enjoin the tax. Nunda v. Village of Chrystal Lake, 79 Ill. 311.
    While there may be no actual fraud intended, it is fraud, in law, to assess one corporation for more than another on the same property. If property is fraudulently valued at too high a rate, the tax may be enjoined. Railroad Co. v. Hodges, 113 Ill. 323; Railroad Co. v. Cole, 75 id. 591; Town of Lebanon v. Railway Co. 77 id. 539; Gage v. Evans, 90 id. 569; Wilson v. Weber, 96 id. 454; Town of Lemont v. Stone Co. 98 id. 94; Chicago v. Burtice, 24 id. 489.
    Messrs. Maloney & Stead, for the appellee:
    The contention that the capital stock and franchise of appellant are, or were at the time of the assessment, worthless, is not an open question in this court. It has been repeatedly decided by this court, that every franchise has, of necessity, some value. If not, why retain it ? Porter v. Railroad Co. 76 Ill. 595.
    This court will not interfere with the action of-the State Board of Equalization, except for fraud. Life Ins. Co. v. Pollak, 75 Ill. 292; Glass Co. v. McCaleb, 81 id. 556; Gage v. Evans, 90 id. 569; People v. Iron Co. 89 id. 116; Spencer v. People, 68 id. 510; State Railroad Tax Cases, 2 Otto, 614.
   Mr. Justice Craig

delivered the opinion of the Court :

This was a bill brought by the Coal Bun Coal Company, to enjoin the county clerk of LaSalle county from extending' taxes upon the assessed value of the capital stock and franchise of the company, as assessed and returned by the State: Board of Equalization for the year 1883.

Two questions are presented and relied upon to reverse the-decree dismissing the bill: First, that division fourth of section 3 of the Bevenue act, which relates to the taxation of the-capital stock of companies and associations in this State, as-amended in 1879, violates the rule of uniformity provided for by section 1, of article 9, of the constitution of this State; second, that the State Board of Equalization of this State, in the application of the rule adopted by them for the taxation of capital stock of corporations, have violated this rule of uniformity.

Section 1, of article 9, of the constitution, provides that “the-General Assembly shall have power to tax peddlers, auctioneers, * * * and persons or corporations owning or using franchises and privileges, in such manner as it shall from time to time direct by general law, uniform as to the class upon which it operates.” Division 4, of section 3, of the Bevenue act, is as follows:

“Fourth—The capital stock of all companies and associations now or hereafter created under the laws of this State, (except those required to be assessed by the local assessors, as hereinafter provided,) shall be so valued by the State Board of Equalization as to ascertain and determine, respectively, the fair cash value of such capital stock, including the franchise, over and above the assessed value of the tangible property of such company or association. Said board shall adopt such rules and principles for ascertaining the fair cash value of such capital stock as to it may seem equitable and just; and such rules and principles, when so adopted, if not ineonsistent with this act, shall be as binding, and of the same effect, as if contained in this act, subject, however, to such change, alteration or amendment as may be found, from time to time, to be necessary by said' board: Provided, that in all cases where the tangible property or capital stock of any company or association is assessed under this act, the shares of capital stock of any such company or association shall not be .assessed or taxed in this State. This clause shall not apply to the capital stock or shares of capital stock of banks organized under the general banking laws of this State: Provided, further, that companies and associations organized for purely manufacturing purposes, or for printing, or for publishing of newspapers, or for the improving and breeding of stock, shall be assessed by the local assessors, in like manner as the property of individuals is required to be assessed.”

It will be observed, that under the section supra, the capital ■stock, including the franchise, of all incorporations organized for pecuniary profit, is required to be assessed by the State Board of Equalization, except corporations organized for purely manufacturing purposes, or for printing, or for the publishing .of newspapers, or for the improving and breeding of stock, which are to be assessed by the local assessors, in the same manner as the property of individuals. This difference in the assessment of different corporations organized under the statute, it is said, renders the section of the statute obnoxious to that clause of the constitution which authorizes the General Assembly to tax corporations owning or using franchises, in such manner as it shall direct by general law, uniform as to the class upon which it operates. This provision of the constitution was before us in Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 579, and in remarking upon it, we there said: “It surely can not be doubted that the requirement that the Board of Equalization shall ascertain and determine the fair cash value of the capital stock, including the franchise, of all companies and associations now or hereafter created under the laws of this State, over and above the assessed value of the tangible property of such company or as: sociation, is a general law, or that it is uniform as to the class upon which it operates. * * * It is not required, as' seems to be thought by some of the counsel with whose arguments we have been favored, that the legislature shall, in providing for the taxation of corporations, under the last clause of the section referred to, designate the precise amount which the corporation shall pay, and that this shall be the same on each corporation, without regard to the value of the franchise or privileges enjoyed, nor that such taxation shall be of like character with that which may be imposed on inn-keepers, and others pursuing the particular vocations named. It is only required that they shall be taxed in such manner as the General Assembly shall, from time to time, direct by general law, and the only uniformity required is as to the class upon which such general law shall operate. It is therefore left entirely to the legislature to determine whether corporations shall be taxed only on their tangible property, on the amount of their capital paid in, on the amount of their gross receipts, or, as' in the present instance, on the value of their tangible property, and on the fair cash value of their capital stock, including their franchises, over and above the assessed value of their tangible property, subject, merely, to the limitation that it shall be directed by general law, uniform as to the class upon which it operates.”

Adhering to what was said in regard to the meaning of the section of the constitution under consideration, we do not regard the section of the statute involved, in conflict with the constitution, The section of the constitution undoubtedly requires the law the General Assembly may enact, to be a general law, and uniform as to the class upon which it operates; but this does not prohibit the legislature from classifying the corporations for taxation. We see nothing in the' constitution which prohibits the legislature from providing one method for determining the value of the capital stock, including the franchise, of a railroad company, another method for a mining corporation, and still another for manufacturing corporations. We see no clause in the constitution which prohibits the legislature from jdacing certain specified corporations in one class, and providing a uniform method of assessment for that class, and placing certain other specified corporations in another class, and providing a uniform manner of assessment for that class. There is no language whatever used in the clause of the constitution, which forbids the legislature from forming a class, and after the class is formed, it is declared that the General Assembly shall have power to tax corporations owning franchises, in such manner as it shall direct. How shall it direct ? By general law, uniform as to the class. What object the General Assembly may have had in placing mining corporations in one class for assessment, and corporations organized for manufacturing, printing, or for breeding of stock, in another class, it is not for us to inquire. So long as the statute does not conflict with the organic law, it will be upheld, whether wise or unwise.

As to the second branch of the case upon which relief is predicated, but little need be said. In the argument it is said, that appellant corporation ought not to have been assessed in any sum, and that other corporations escaped entirely from being assessed which ought to have been assessed, and hence the rule of uniformity was violated. The State Board of Equalization had the power to make the assessment, and the action of that body can not be reviewed by the courts except for fraud. Spencer & Gardner v. The People, 68 Ill. 510.

In Republic Life Ins. Co. v. Pollak, 75 Ill. 292, where an assessment had been made by the State Board of Equalization, as here, it was held, that in the absence of fraud or want of power the courts are powerless to give relief against an excessive assessment. The legislature has empowered the State Board of Equalization to assess ,the capital stock, including the franchise, of corporations, organized under our laws, and it is no part of the duty of a court of equity to interfere with the action of that body, unless the evidence discloses fraud in making the assessment, which is not the case here.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The People ex rel. Commissioners of Highways v. The Board of Supervisors of Madison County.

      Filed at Springfield May 9, 1888.

    1. Bridges—county aid—conditions—as to the relative cost and assessed valuation, how and by whom to be ascertained. On application by the commissioners of highways against a county board, to compel the latter to appropriate one-half of the cost of the erection of a bridge, the question whether the cost of the proposed bridge will be more than twenty cents on the one hundred dollars of the last preceding assessment roll, is not one for the determination of a jury, but to be found by the court from an inspection of the record evidence before it.
    2. The amount of the assessed valuation of the taxable property in a town on the latest assessment roll, and the estimated cost of the building of bridges by the commissioners of highways, are all matters of record, and are therefore provable only by the record, and should be found by the court from an inspection of the record.
    3. The mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption the court knows what is the result.
    4. Same—necessity for a bridge—and deficit in the sixty cents tax— by whom to be determined. Whether a proposed bridge is necessary, or whether the major part of the sixty cents tax levied by the commissioners will be required for the ordinary repair of roads and bridges, being matters within the discretion and control of the commissioners, are questions the truth of which the county board have no right to inquire into. With respect to these questions, all they have a right to do is to determine, from the petition presented, whether the commissioners have acted upon them and decided them in the affirmative.
    5. Boundary—as to land lying along a water-course, or public highway. It is an established inference of law, that a conveyance of land bounded on a highway or river carries the fee to the center of the. highway or river, provided the grantor, at the time, owned to the center, and there be no words or specific description to show a contrary intent.
    6. But it is competent for the riparian proprietor to sell his upland to the top or edge of the bank upon a river, and to reserve the stream or flats below high-water mark, if he does so by clear and specific boundaries.
    7. A grant running to a monument standing on the bank of a stream, and from thence running by the river on or along the river, etc., does not restrict the grant .to the bank of the stream, for the monuments, in such case, are only referred to as giving the directions of the lines to the river, and not as restraining the boundary on the river.
    8. If the grantor, however, after giving the line to the river, bounds the land by 'the bank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, this will show that he does not consider the whole alveus of- the stream a mere mathematical line, so as to carry his grant to the middle of the river.
    9. Same—boundary of a city—construed. A charter of a city, in defining its limits, used this language: “Beginning at the north-east corner of section 11, etc., and running thence west on the section line to Gordon’s branch; thence down the meanderings of said branch to the margin of Cahokia creek; thence down on the left bank of said creek to the line between sections 3 and 4,” etc.: Held, that the line was the middle of Gordon's creek, but as to Cahokia creek the rule was different, the line there being limited to the left bank of that stream.
    10. In such case, the boundary does not run where the water and land meet at low water, low-water mark not being the bank of the stream. Low-water mark is the point to which the water recedes at its lowest stage, while the banks are the elevations of land which confine the waters in their natural channel when they rise to the highest and do not overflow the banks.
    11. Error wild not always reverse—admission of oral evidence of matters proved by the record. On an application by commissioners of highways for a mandamus against the county board, to compel the latter to furnish aid in the construction of bridges, the admission of oral evidence of the action of the commissioners, if error, can work no harm, when the same matters are also proved by the record of their proceedings.

      This is an original application to this court, by the commissioners of highways of the township of Edwardsville, in Madison county, for a writ of mandamus, against the board of supervisors of that county. It is alleged in the petition that the said commissioners of highways did, on the 31st day of March, A. D. 1886, present to the board of supervisors of said county, then in session, a petition, estimate and affidavit, as follows:
    “The undersigned, commissioners of highways of the town of Edwardsville, in said county, would' respectfully represent that a bridge needs to be built over, the Cahokia creek, in said town, where the same is crossed by the highway leading from the city of Edwardsville, in said town, to the city of Alton, in said county; and also that a bridge needs to be built over said Cahokia creek, in said town, where the same is crossed, at the “Lucy Wheeler farm,’ by the highway leading from said city of Edwardsville, in said town, by way of the ‘old fair ground,’ to Venice, in said county, in which said work the said town of Edwardsville is wholly responsible; that the cost of each of said bridges will be $1750, and the total cost of building both of said bridges will be $3500, which sum of $3500 will be more than twenty cents on the one hundred dollars on the latest assessment roll of said town, and that the levy of the road and bridge tax for the present year in said town is the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges; that said town has provided and appropriated for the building of said bridges the sum of $1750, being one-half the total estimated cost thereof, wherefore said commissioners of highways of said town hereby petition you for aid, and for an appropriation from the county treasury of a sum sufficient to meet one-half the expense of said bridges.
    “Dated at Edwardsville, Illinois, this 30th day of March, A. D. 1886.
    William Smola,
    John F. Kienlen,
    C. M. Schwarz,

      Commissioners,of Highways."

      “State of Illinois, Madison County, Town of Edwardsville. Board of Comrs. of Highways.
    “We, the undersigned, commissioners of highways of the town of Edwardsville, hereby state that we have made a careful estimate of the probable cost of the erection of two bridges across Cahokia creek, in said town, one where the same is crossed by the highway leading from the city of Edwardsville, in said town, to the city of Alton, in said county, and one where the same is crossed, at the ‘Lucy Wheeler farm,’ by the highway leading from the said city of Edwardsville, in said town, by way of the ‘old fairground,’ to Venice, in said county, and we do estimate that the probable cost of each of said bridges will be $1750, and that the total cost of said bridges will be $3500.
    “Witness our hands this 30th day of March, A. D. 1886.
    William Smola,
    John F. Kienlen,
    C. M. Schwarz,

      Commissioners of Highways.”

    “State of Illinois, Madison County, Town of Edwardsville.

    “William Smola, John F. Kienlen and C. M. Schwarz, commissioners of highways of the town of Edwardsville, being each duly sworn, on oath say that the construction of the bridges mentioned in the estimate to which this affidavit is attached, across Cahokia creek, in said town, is necessary, and that the same will not be made more expensive than is needed for the purpose desired.
    William Smola,
    John F. Kienlen,
    C. M. Schwarz,

      Commissioners of Highways.”

    Subscribed and sworn to.
    The petitioners further represent, that all the matters and things in the said petition, estimate and affidavit set forth, were and are true, as therein stated, and the same were, upon presentation of said petition, estimate and affidavit to said board of supervisors aforesaid, made to appear to said board of supervisors, and that said petition, estimate and affidavit were presented to said board, as aforesaid, in good faith, and for the objects and purposes therein set forth, and that upon presentation thereof, as aforesaid, the same were, by said board, referred to its committee on roads and bridges, and afterwards, on the 14th day of September, A. D. 1886, being one of the days when said board was in session, at its regular annual meeting, said board denied the prayer of said petition, and refused, and still does refuse, to make said appropriation, although it was its plain duty to do so under the provision of the statute of this State. Wherefore the petitioners pray this court to order a writ of mandamus to issue from this court, directed to the said board of supervisors of Madison county, Illinois, commanding it forthwith to appropriate the said sum of $1750 out of the treasury of said county, to be expended in paying for one-half the cost of constructing two bridges in the town of Edwardsville, in said county, as prayed for in said petition of said commissioners of highways, and that said board of supervisors may be summoned, in accordance with the rules and practice of this court, to answer this petition, and upon a hearing thereof, this court will make such order herein as under the law may be justified, etc. The petition is subscribed by the commissioners, and sworn to.
    Respondents filed ten pleas, but demurrers were sustained to the first, second, seventh, eighth and ninth pleas. The third, fourth, fifth, sixth and tenth pleas are as follows:

      “Third plea—And for a further plea in this behalf, these respondents say that the said petitioners ought not to have a writ of mandamus against these respondents in this behalf, because they say, for said year in the said petition named, the levy of the road and bridge tax in said town of Edwardsville was not for the full amount of sixty cents on each one hundred dollars on the latest assessment roll of said township, but was less than said amount; and of this they put themselves upon the country.

      “Fourth plea—And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because they say, when said petition of said commissioners of highways was presented to said board of supervisors, the matters and allegations in said petition contained were investigated by the said board of supervisors, and it did not appear to said board, or these respondents, that at the time said petition' was so presented, nor at any subsequent time, a major part of the full amount of the road and bridge tax of Edwardsville township, of sixty cents on the one hundred dollars of the latest assessment roll for the year, in said petition mentioned and claimed to be levied, was needed for the ordinary repair of roads and bridges in said town of Edwardsville, but on the contrary, these respondents say that the major part of said tax of said sixty cents on the said one hundred dollars was not needed for the ordinary'repair of roads and bridges in said township at the time said petition was presented to said board, nor at any time subsequent thereto-; and of this these respondents put themselves upon the country.

      "Fifth plea—And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because these respondents say that the major part of the full amount of the road and bridge tax for said Edwardsville township, for the year in said petition mentioned, alleged to be levied by said highway commissioners, of sixty cents on each one hundred dollars allowed by law to be raised by said highway commissioners for said tax, was not needed for the ordinary repair of roads and bridges'in said township when said petition for said aid was presented to said board of supervisors, nor at any other time; and this these respondents pray may be inquired into by the country.

      “Sixth plea—And these respondents, for a further plea in this behalf, come and defend, etc., and say the petitioners ought not to have a writ of mandamus against them, because they say the cost of the bridges mentioned in said petition, and to be built, for which aid was asked, would together be less than twenty cents on the one hundred dollars of the latest assessment roll in said township; and of this they put themselves upon the country.

      “Tenth plea—And for a further plea in this behalf, leave, etc., according, etc., the respondents say that the petitioners ought not to have their writ of mandamus against these respondents in this behalf, because they say that the east end and part,—to-wit, the east piers, abutments, and all the approaches thereto,—of said proposed bridge in said petition of the petitioners mentioned as crossing said Cahokia creek on the public highway leading from the city of Edwardsville to the city of Alton, in said county, is within the corporate limits of the city of Edwardsville, in the county of Madison, and State of Illinois, and that the cost of constructing the other proposed bridge near the ‘Lucy Wheeler farm ’ will be less than twenty cents on the one hundred dollars on the latest assessment roll of said town of Edwardsville at the time said county board was so petitioned, and that the said town of Edwards-ville, before and at the time of presenting said petition for aid to said county board, had raised a sum of money sufficient to pay for said last named bridge, exclusive of the amount needed for the ordinary repair of roads and bridges; and this they are ready to verify, wherefore these respondents pray if petitioners ought to have their aforesaid writ of mandamus,” etc.
    Relators file their replication to respondents’ tenth plea, as follows: “And the relators, as to the plea of the respondents by them tenthly above pleaded, by leave of court say, that they, (the relators,) by reason of anything in that plea alleged, ought not to be barred from having their aforesaid writ of mandamus, because they say that the bridge mentioned in said
      plea, proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is intended to take the place of an old wooden bridge now across said creek on said highway; that said old bridge rests upon two stone abutments, and no more, one of which abutments is on the west bank of said creek, and the other of said abutments is on the east bank of said creek; that said proposed bridge is to be an iron bridge, and is intended to be placed upon said two abutments, and upon no other abutments or piers, and that the estimated cost of $1750, mentioned in the petition herein, for building said proposed bridge, includes no expense or work on the said abutment on the east bank of said creek, or any approach thereto; and this the relators are ready to verify, wherefore they pray judgment and their writ of mandamus,” etc.
    Questions of fact were certified to the Macoupin circuit court, to be tried by a jury. The questions, and the findings of the jury returned in answer thereto, were as follows:
    “We, the jury impaneled and sworn to try the issues in the above entitled cause, make the following answers to the following questions, being the seven questions submitted by relators:
    “First—Was the levy of the road and bridge tax in the town of Edwardsville, in the year 1885, for the full amount of sixty cents on each one hundred dollars on the latest assessment roll of said town of Edwardsville ? Answer, yes.
    “Second—Was the major part of said road and bridge tax, of sixty cents on each one hundred dollars on the latest assessment roll of said town of Edwardsville, needed for the ordinary repair of roads and bridges in said town, during the year for which said tax was levied ? Answer, yes.
    “ Third—Will the cost of the two bridges mentioned in redators’ petition for mandamus, be together more than twenty cents on the one hundred dollars of the assessment roll in the town of Edwardsville for the year 1885 ? Answer, no.

      “Fourth—How much, if any, of the east end of the bridge mentioned in relators’ petition, herein proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is in the corporate limits of said city of Edwardsville ? Answer, none.
    “Fifth—How much, if any, of the east abutment of the present bridge across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, is in the corporate limits of the city of Edwardsville ? Answer, none.
    “Sixth—Is the bridge mentioned in relators’ petition, and proposed to be built across Cahokia creek, on the public highway leading from the city of Edwardsville to the city of Alton, intended to take the place of an old wooden bridge now across said creek, on said highway, and does said old bridge rest upon two stone abutments, and no more, and is one of said abutments on the west bank of said creek and the other on the east bank of said creek, and is said proposed bridge to be an iron bridge, and is it intended to be placed upon said two abutments, and upon no other abutments or piers ? Answer, yes.
    “Seventh—Does the estimated cost of $1750 for building said bridge proposed to be built across Cahokia creek, on the highway leading from the city of Edwardsville to the city of Alton, include any expense or work on the east abutment of the old wooden bridge now across said creek, on said highway, or an approach to said abutment, or approach to the east end of said proposed bridge? Answer, none.”
    Answers to two interrogatories submitted by the respondents:
    “First—How much, if any, of the east end of the bridge mentioned in relators’ petition, proposed to be built across Cahokia creek, on the public highway leading from the city of Alton to the city of Edwardsville, is in the corporate limits of said city of Edwardsville ? Answer, none.
    “Second—If the jury answer that part of said east end is within the corporate limits of the city of Edwardsville, will it "be necessary to expend any money on that part of said bridge, or the east pier or abutment or approach to said bridge, which they find is within the corporate limits of the city of Edwards-ville, for the proper building of the same ? Answer, we find that no part of said bridge is within the limits of the city of Edwardsville.”
    The court, at the instance of the relators, gave the following instruction to the jury:
    “The court instructs the jury, that the east margin of Cahokia creek is the boundary line of the city of Edwardsville, where the bridge mentioned in relators’ petition is proposed to be built across said creek, on the highway leading from the city of Edwardsville to the city of Alton.”
    Respondents asked the court to instruct the jury as follows, but the court refused to do so:
    “1. The court instructs the jury, as a matter of law, that the corporate limits of the city of Edwardsville, as bounded by the Cahokia creek, extend to the middle of the stream of said creek.
    “2. The court instructs the jury, as a matter of law, that the corporate limits of the city of Edwardsville, as bounded by Cahokia creek, extend to low water mark of said creek.” After the jury had returned their answers to the interrogatories aforesaid, but before they were discharged by the court, relators requested the court to instruct them as follows:
    “If the jury find, from the evidence, that the cost of building the two bridges mentioned in relators’ petition is undisputed in the evidence, and amounts to $3500, and that the total of the assessment roll of the town of Edwardsville, in the year 1885, is $1,013,423, then twenty cents on the one hundred dollars of said assessment roll is less than the cost of said two bridges, and the jury ought to answer the third question submitted to them, in the affirmative.”
    The court, holding that the instruction was asked too late, declined to give it.

      Messrs. Wise & Davis, and Messrs. Burroughs & Warnock, for the relators:
    This court ought to award the writ, because from the pleadings, evidence and verdict it clearly appears that relators have brought themselves within the rulings of this court. People v. Iroquois County, 100 Ill. 640; Town of New Boston v. Mercer County, 110 id. 197; Will County v. People, id. 511; Logan County v. People, 116 id. 466; Stark County v. People, 118 id. 459.
    The language used in the charter defining the city boundaries, clearly excludes Cahokia creek, and confines the same to the bank. Rockwell v. Baldwin, 53 Ill. 19; Hatch v. Dwight, 17 Mass. 298; Dunlap v. Stetson, 4 Mason, 349; Babcock v. Utter, 1 Abb. 27; Watson v. Peters, 26 Mich. 516; Daniels v. Cheshire, 20 N. H. 85; 3 Washburn on Real Prop. 411, note.
    Messrs. Dale & Bradshaw, and Mr. George F. McNulty, for the respondents:
    The general doctrine that grants of lands bounded upon rivers or their margins above tide-water, carry the exclusive right and title of the grantee to the center thread of the current, unless the terms clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned. Trustees of Schools v. Schroll, 120 Ill. 509; Helmer v. Castle, 109 id. 672; Piper v. Connelly, 108 id. 651, and authorities cited.
    The Illinois decisions are in harmony with the decisions of other courts and text-writers on this question. State v. Canterbury, 8 Fost. 195, and New Hampshire cases there cited; Luce v. Cawley, 24 Wend. 451; 2 Smith’s Lead. Cases, (8th ed.) part 1, p. 175; Johnson v. Anderson, 18 Maine, 76; Ex parte Jennings, 6 Cow. 518; Angell on Water-courses, sec. 23; Gould on Waters, sec. 197, p. 348, note 5; 3 Kent’s Com. 428; Hayes v. Bowman, 1 Rudolph, 428; 3 Washburn on Real Prop. chap. 5, sec. 4.

      Though land, nominally and in terms, is bounded on the margin of a river, it extends, by construction of law, to the center or thread of the stream.
    The word “bank” may be used as synonymous with the river; and it is plain that the naked circumstance of bounding a grant on, to, or by a bank, can not exclude the stream any more than bounding on the margin of the stream. Angell on Watercourses, secs. 23, 24.
    The apparent exceptions, in the cases cited by relators, to this general rule, are governed by particular facts and surrounding circumstances that do not exist in this case. And even where the particular facts and surrounding circumstances show that the grant is to the margin of the water’s edge, and not to the center of the stream, then the grant stops, not at the extreme high water, but goes to the low-water mark. 13 N. Y. 296; 4 Hill, 369; 20 Wend. 150.
    The grant or charter defining the limits of a city is construed the' same as grants by deed, when the boundary is to be ascertained, and therefore is construed against the grantor. State v. Canterbury, 8 Fost. 196.
    The commissioners of highways can not prove these proceedings by parol evidence. 1 Dillon on Mun. Corp. secs. 229, 247, 237, 238; Mayhew v. District Gay Head, 13 Allen, 129; McHaney v. Marion County, 77 Ill. 488; Spangler v. Jacoby, 14 id. 297; Steckart v. East Saginaw, 22 Mich. 104; Stevenson v. Bay City, 26 id. 44; Morrison v. Lawrence, 98 Mass. 219; Hunneman v. Fire District, 37 Vt. 40; Louisville v. McKegney, 7 Bush, 652; The Board v. Chitwood, 8 Ind. 504; Jordan v. School Directors, 38 Maine, 169.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The answer of the jury to the third interrogatory propounded on behalf of the relators is palpably erroneous, but the question there propounded is one not proper for the determination of a jury, and the error in their verdict may, for that reason, be disregarded.

The amount of the assessed valuation of the taxable property of the town of Edwardsville for the year 1885, and the estimated cost of building the two bridges, are all matters of record, and therefore provable only by the record. See the several sections of the Revenue act, in relation to assessments, (Rev. Stat. 1874, chap. 120,) and.section 19 of “An act in regard to roads and bridges in counties under township organization, approved June 23, 1883.” Hence the denial of the allegations of the petition, that the cost of the two bridges would be more than twenty cents on the one hundred dollars on the latest assessment roll, etc., was in the nature of a plea of nul tiel record, which the court must try by an inspection of the record. 2 Tidd’s Pr. (3d Am. ed.) 741, *743; Carson v. Pearl, 4 J. J. Marsh. 92; Brody v. Commonwealth, 1 Bibb, 517; Gray v. Pinquey, 17 Vt. 419.

The mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption, the court knows what is the result. It is upon this principle, that where an action is brought for a sum certain, or which may be made certain by computation, the court can enter judgment for the plaintiff for the amount of his damages, without a writ of inquiry. 2 William’s Saunders, 107 a, notes b, c; Renner et al. v. Marshall, 1 Wheat. 215, *216; Rust v. Frothingham et al. Breese, 331.

The evidence before us clearly shows that this issue must be decided in favor of the relators. No objection is perceived to the record evidence, and none is insisted upon in argument. The assessed valuation of the taxable property in the town of Edwardsville for the year 1885, which was the last assessment before presenting the petition to the board of supervisors, is $1,013,423, twenty per cent upon which can only be $2026.84, while the estimated cost of the bridges is $3500.

Question is made as to the sufficiency of the evidence to sustain the allegation that the major part of the road and bridge tax of sixty cents on each one hundred dollars on the last assessment roll of the town, was needed for the ordinary repair of roads and bridges in the town during the year for which the tax was levied. We think the evidence warranted the finding of the jury in that respect. But we held in Board of Supervisors of County of Macon v. People, 121 Ill. 616, that this question belongs solely to the commissioners of highways. We there said, among other things: “But whether the proposed work is necessary,—that is, whether public interest and convenience demand it,—or whether the major part of the sixty cents tax levied by the commissioners will be required for the ordinary repair of roads and bridges, being matters within the discretion and judgment of the commissioners, are questions the truth of which the board of supervisors have no right to inquire into or determine. With respect to these questions, all they have a right to do is to determine, from the petition presented to them, whether the commissioners have acted upon them, and decided them in the affirmative.”

Complaint is made that the court permitted oral evidence to go to the jury, of the action of the commissioners of highways, as affecting the present controversy. But the same thing which this evidence tended to prove was proved by the record of the commissioners of highways, which was read in evidence, and therefore no harm was done the respondents by the oral, evidence.

The objection most seriously urged, is against the answers to the fourth and fifth interrogatories propounded by the relators, and to the first and second interrogatories propounded by the respondents; and this involves, first, a question of law, as to the proper construction of the language of the charter of the city of Edwardsville, respecting a part of its boundary; and secondly, a question of fact, with respect to the location of the east end of the bridge.

The city is incorporated under a special charter, which, in defining its limits, uses this language: “Beginning at the north-east corner of section No. 11, town 4, range 8, west of the third principal meridian, and running thence west on the section line, to Gordon’s branch; thence down the meanderings of said branch, to the margin of Cahokia creek; thence down on the left hank of said, creek, to the line between sections Nos. 3 and 4, in said township, ” etc. It is undoubtedly the established inference of the law, that a conveyance of land bounded on a highway or river, carries the fee to the center of the highway or river, provided the grantor," at the time, owned to the center, and there be no words or specific description to show a contrary intent; and we shall assume, for the present, at least, that this rule is equally as applicable to boundary lines of towns, etc., as to private grants. But it is competent for the riparian proprietor to sell his upland to the top or edge of the bank of a river, and to reserve the stream or flats below high-water mark, if he does it by clear and specific boundaries. 3 Kent’s Com. (8th ed.) pp. 534, 535, *434. And so we said in Rockwell v. Baldwin et al. 53 Ill. 22: “It is, however, but a presumption, for one man may own the bed of such a stream, and another may own the banks; and where, in a deed conveying land, the boundary is limited to the bank of the stream, instead of bounding it on or along the stream, the presumption must fail. The party must be controlled by the terms of his deed.” There, the language, “thence down the west line of the creek,” was held, in connection with certain circumstances tending to show the interest of the grantor to be to that effect, to establish the boundary line on the bank of the creek.

In Child v. Starr, 4 Hill, 369, to which we referred as supporting the views thus expressed, Walworth, Chancellor, said: “Running to a monument standing on the bank, and from thence running by the river or along the river, etc., does not restrict the grant to the bank of the- stream, for the monuments in such cases are only referred to as giving the directions of the lines to the river, and not as restricting the boundary on the river. If the grantor, however, after giving the line to the river, bounds his land by the bank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, he shows that he does not consider the whole alveus of the stream a mere mathematical line, so as to carry his grant to the middle of the river.”

In Howard v. Ingersoll, 13 How. 381, one of the boundary lines between the State of Georgia and the State of Alabama is described as “running thence up the said river Chattahoochee, and along the western bank thereof, to the great bend thereof,” etc. The court, in speaking of this language say: “If the language of the article had been, ‘beginning on the western bank of the Chattahoochee, and running thence up the river,’ and no more had been said, the middle of the thread of the river ordinarily, and without any reference to the fact that Georgia was the proprietor of the river, it would have been said to be the dividing line between the two States. But there is added, ‘running up the said river Chattahoochee, and along the western bank thereof.’ This last controls any uncertainty there may be, for if the first call or object to locate the line is the bank of the river, it is plain that the western limit of Georgia, on and along the bank of the river, must be where the bank and the water meet in its bed, within the natural channel or passage of the river.” To like effect is the ruling in Daniels v. Cheshire Railroad Co. 20 N. H. 85; Bradford v. Cressy, 45 Maine, 9. See, also, Richardson, J., in arguendo in Rix v. Johnson, 5 N. H. 520; and Fire Ins. Co. v. Stevens, 87 N. Y. 287.

None of the cases cited in argument by counsel for respondents goes to the extent of holding that where a line is described as running on a particular bank of the stream, it in fact runs in the middle of the stream. In Piper v. Connelly et al. 108 Ill. 646, we held the plat on the hack of the deed to he a part of the description of the premises conveyed, and it showed the river—not the hank—to he the line. In Helmer v. Castle, 109 Ill. 664, there was a conveyance hounding the property conveyed, by a road, and it was simply held that this carried title to the center of the road; and in Trustees of Schools v. Schroll et al. 120 Ill. 509, the boundary was upon a lake or pond, and we but there repeated the general doctrine before herein recognized. In Inhabitants of Ipswich, Petitioners, 13 Pick. 431, the line is described as running, “and by Ipsiuich river to a wall, * * * then by said wall,” etc.; and this, it was held, made the center of the river and of the wall the line. In Cold Spring Iron Works v. Inhabitants of Tolland, 9 Cush. 492, the language is, “bounding on said west branch of Farmington river, as the same runs,” etc., and it was held the center of the stream was the line. And in Luce v. Cooley, 24 Wend. 451, the only remaining case cited that it is deemed necessary to notice, the language is, (after giving certain monuments,) “from thence down the river as it winds and turns,” etc., and it was held that the grantee took to the middle of the river.

The language here used, in regard to Gordon’s branch, is within those cases, and the line there is undoubtedly the middle of the stream. But the language describing the line, when Cahokia creek is reached, is radically different, and the fact that it is so different is conclusive that it was not intended that it should convey the same meaning. Thus, the description of the line is, “to Gordon’s branch; thence down the meanderings of said branch, to the margin of Cahokia creek; thence down on the left bank of said creek,” etc. If this does not clearly say that the line shall run “down on the left bank of Cahokia creek,” then it would seem impossible to express that idea. There is no ambiguity in the language, and we are aware of nothing to prevent its having its usual effect, in this connection.

But it is further contended by counsel for respondents, that even if it shall be held that the line does not run in the middle' of the stream, it must be held that it runs where the water and land meet at low water. But low-water mark is not the bank of a stream. It is the point to which the stream recedes at its lowest stage. The banks of the stream, on the other hand, are “the elevations of land which confine the waters in their natural channel, when they rise the highest and do not overflow the banks.” (Gould on Waters, sec. 45.) In Howard v. Ingersoll, supra, Wayne, J., in speaking of the like question there under consideration, said: “The call is for the bank, —the fast land which confines the water of the river in its channel or bed, in its whole width. That is to be the line. The bank, or the slope from the bluff, or perpendicular of the bank; may not be reached by water for two-thirds of the year; still the water-line impressed upon the bank above the slope is the line required by the commissioners, and the shore of the river, though left dry for any time, and but occasionally covered by water in any stage of it, to the bank, was retained by Georgia as the river up to that line.” The same line was again considered by the same court in State of Alabama v.State of Georgia, 23 How. 505, and the court repeated its former ruling, holding that the line ran on the west bank of the Chattahoochee river; that the bed of that river belonged to Georgia, and that it included that portion of the soil which is “alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.” To like effect, see, also, Gould on Waters, sec. 200.

The rulings of the circuit court in instructing the jury were substantially in harmony with this view of the law, and we therefore think the jury were properly instructed.

We have given careful consideration to the evidence, and we think the clear preponderance is with the finding of the jury, that the -east end of the bridge is not within the incorporated town of Edwardsville. A mistake in the abstract makes Dr. Spillman say: “Allowing the end of the new bridge to rest a foot and a half over the east abutment, which is the usual way of placing them, the east end of the bridge would be about four feet on the up-stream side, and about three feet on the lower-stream side, east of the east line of the bank of the creek.” The record shows that the word “east,” here italicized, should be west. The witness was asked: “Allowing a foot, and a half to two feet of the new bridge to rest upon the east abutment here, I will ask you to state how far the east end of the bridge would be from the margin of the creek, on the east side of the creek?” And he answered: “On the up-stream side I think it would be about something near four feet, and on the lower-stream side probably miss it as much as three feet, or two and a half, inside of this east line of the bank.” The witness had, moreover, previously stated: “The margin of the east bank of Cahokia creek is east of the eastern pier or abutment of the bridge,” and also that “the east end of the bridge, .if it rests on this old abutment pier, would be west of the eastern line of the bank of the creek.” There is contradictory evidence on this question, but this mistake in the abstract being corrected, in our opinion the preponderance is, as before observed, with the finding of the jury.

We think, on the authority of The People ex rel. Commissioners v. Board of Supervisors, 100 Ill. 640, Town of New Boston v. Supervisors of Mercer County, 110 id. 197, Supervisors of Will County v. The People ex rel. id. 511, Supervisors of Stark County v. The People ex rel. 118 id. 459, and Board of Supervisors of Macon County v. The People ex rel. supra, the relators are, on the findings of the jury and the evidence before us, entitled to a peremptory writ of mandamus, as prayed in the petition, and it will issue accordingly.

Peremptory mandamus awarded.


author: Mr. Justice Mulkey

text:
    Benjamin Bowen, for use, etc., v. Thomas Pope et al.

      Filed at Springfield May 9, 1888.

    Garnishment — as to property out of the State. A party can not be charged as garnishee in respect to promissory notes or other evidences of indebtedness executed by third persons, and belonging to the defendant in the attachment, which, at the time of the service of the garnishee process, and during the pendency of the suit, are in another State.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Mr. J. C. Broady, for the appellant:
    Promissory notes belonging to the defendant in an attachment suit are subject to garnishment when in possession of garnishees. Stevens v. Dillman, 86 Ill. 233.
    While some other States construe their attachment laws strictly, a broad and liberal construction has always been given to our Attachment act by the Supreme Court of this State. Humphreys v. Matthews, 11 Ill. 471; Railroad Co. v. Crane, 102 id. 258.
    The process of garnishment will not lie against a party who neither resides in this State nor has in his hands property of a defendant, nor is bound to pay him money or deliver him property within the State where it is issued. All these conditions must concur to exempt him, and if he does reside in this State, they do not all concur. Roche v. Ins. Ass. 2 Bradw. 360.
    Personal property out of, the State, but in the possession, custody or control of garnishees residing and doing business in this State, is subject to garnishment in this State. Childs v. Digby, 24 Pa. St. 23.

      The fact that the notes were in the State of Missouri at the time of service on appellees did not exempt them from being subject to garnishment under our statute. Railroad Co. v. Crane, 102 Ill. 259.
    Our courts have equitable powers to make and enforce its orders respecting goods, chattels, choses in action or effects that any garnishee has in his hands or under his control, belonging to or which he is bound to deliver to the defendant in attachment. Cothran’s Stat. 1885, secs. 24, 25, p. 758.
    Mr. William McFaadon, for the appellees:
    Property outside the State of Illinois is not the subject of garnishment, under its garnishee process from one of its courts, under the statutes of Illinois. Bates v. Railway Co. 60 Wis. 302.
    The decision last named is of peculiar force in Illinois, from the similarity of the Illinois garnishment law to that of Wisconsin, cited in the case last named. The Wisconsin law is as broad as that of Illinois on the same subject. Rev. Stat. 1883, chap 62, secs. 5, 19-25.
    In a garnishee suit, the garnishee, whether he be a resident or non-resident of the State in which the garnishee process has issued, is not obliged to answer, except as to property actually within, or which, by contract, the garnishee is bound to deliver to the defendant in the attachment suit, within the State last named. He can not be required to answer as to property of the attachment defendant which he has in another State. (Waples on Attachment and Garnishment, 226, 227.) And if the garnishee should answer that he had property of said attachment defendant in another State, he could not be held chargeable upon his answer for said last named property. Sutherland v. National Bank, 78 Ky. 253; Waples on Attachment and Garnishment, 249, 226, 227.
    A garnishee proceeding is in the nature of a proceeding in rem, (Drake on Attachments, sec. 472,) and, to the effectual creation of a lien, it is not enough that the garnishee he within the jurisdiction of the court issuing the process. The res itself must also be within the jurisdiction of such court. Sutherland v. National Bank, 28 Ky. 253; Plimpton v. Bigelow, 93 N. Y. 596; Railroad Co. v. Cobb, 48 Ill. 404; Story on Conflict of Laws, sec. 592;
    Courts have no extra-territorial jurisdiction over either persons or property in attachment suits; and when such suits are instituted against a non-resident, the court can proceed only against property of the non-resident within the State in which the suit is brought. Waples on Attachment and Garnishment, 334, 335; D’Arcy v. Ketchum, 11 How. 165.
    That the attaching court can only adjudicate to the extent that the non-resident, Bowen, had property within the limits of Illinois, see Pennoyer v. Neff, 95 U. S. 724.
    The garnishment law in force July 1, 1872, was the first one in Illinois to provide for a delivery by a garnishee, to the officer holding an execution, of choses in action in the hands of such garnishee, to be sold under such execution. Rev. Stat. 1883, chap. 92, secs. 20, 21.
    By such law the evidence of indebtedness was cbnverted into a species of property. The character of property being thereby impressed upon the promissory note itself, it follows that the promissory note,—the evidence of indebtedness,—. has a situs of its own wherever it happens to be, as much and to the same extent as though it were a chattel of any kind whatsoever,—e. g., a horse, a barrel of sugar, or whatsoever else it be. Plimpton v. Bigelow, 93 N. Y. 596.
    The promissory notes being property, they could not be within the jurisdiction- of an Illinois court by any legislative declaration, when their actual locality was in the State of Missouri. Waples on Attachment and Garnishment, 248, 249; Plimpton v. Bigelow, 93 N. Y. 596.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 12th day of October, 1885, the Simmons Hardware Company, a business corporation of St. Louis, Missouri, sued an attachment out of the circuit court of Adams county, against the estate of Benjamin Bowen, a resident of and doing business in the State of Missouri, to which the sheriff of the county, three days afterwards, made the following return:

“I have been unable to find property of the within named defendant, Benjamin Bowen, to satisfy the within attachment, and I have served the within writ upon the within named garnishees, Thomas Pope, William R. Lockwood and John W. Heitz, co-partners under the name and style of Pope, Lockwood & Co., by reading the within to said John W. Heitz, on the 12th day of October, A. D. 1885, and giving to said Heitz one dollar and ten cents; and by reading the within writ to within named Thomas Pope, on the 13th day of October, 1885; and by reading the within writ to the within named William B. Lockwood, on the 14th day of October, A. D. 1885.

“I can not, in my county, find the within named Benjamin Bowen this 15th day of October, A. D. 1885.”

The garnishees answered, admitting an indebtedness to Bowen of $141.49, and also that at the time of the service of the writ on Heitz, Lockwood had in his possession, in the State of Missouri, certain promissory notes belonging to Bowen, on various parties then in and resident of that State, and that before service of said writ on Lockwood the said notes were delivered by him to Bowen, in pursuance of a demand made therefor.

The notes in question amounted, in the aggregate, to $336, and are conceded to have been worth as much as $100. It is an undisputed fact that the notes, neither at the time of the service of the writ on Heitz, nor afterwards, were outside of the State of Missouri. Upon the service of the writ on him, it appears that the firm sent a dispatch to Lockwood, who was temporarily in Missouri, for the purpose of making a settlement with Bowen, informing him of the service of the writ. The latter, after taking legal advice, delivered the notes to Bowen, notwithstanding the service upon his firm, but on the same advice he declined to pay over to him the $141.49 cash, and hence there is no controversy as to that.

The plaintiff filed a replication to the answer of the garnishees, and the issues of fact thus formed were tried before the court and a jury, resulting in a verdict for the plaintiff for the $141.49 only, upon which the court entered judgment. On the plaintiff’s appeal, the Appellate Court affirmed the judgment.

The only question to be determined on the present appeal arises on the instructions given to the jury. The court, in a number of instructions, told the jury, in effect, that if they found the facts respecting the notes as above stated, they should find as to them for the defendants. The question thus raised is simply this: Can one be charged as garnishee in respect to promissory notes, or other evidences of indebtedness, executed by third parties, and belonging to the defendant in the attachment, which, at the time of the service of the garnishee process, and during the pendency of the suit, were in another State ?

So far as we are advised, this question is now before this court for the first time, though the courts of other States, in giving a construction to their own statutes on the subject of garnishment, have frequently had occasion to pass upon it, and a number of them have answered the question directly in the negative. On the other hand, the case of Childs & Co. v. Digby, 24 Pa. St. 23, is the only one to which we have been referred which seems to hold to the contrary, and the rule as laid down in that case appears to have been since changed by statute, so as to make it conform to the holdings of the courts in the other States. We perceive nothing in this case to justify a departure from the general rule on the subject, as just indicated. That the rule has the merit of convenience and certainty, is clear, and that it is sound on principle will fully appear from the following authorities: Bates v. Chicago, Milwaukee and St. Paul Ry. Co. 60 Wis. 302; Sutherland v. Second Nat. Bank, 78 Ky. 253; Plimpton v. Bigelow, 93 N. Y. 596; Pennoyer v. Neff, 95 U. S. 724; Waples on Attachment and Garnishment, 226, 227, 249, 334, et seq. The case of Illinois Central Railroad Co. v. Cobb, 48 Ill. 404, also has more or less bearing on the question.

The conclusion reached by the courts below appearing to be in conformity with the general current of authority, we perceive no cause for disturbing the judgment. It will therefore be affirmed.

Judgment affirmed.