author: Mr. Justice Scholfied Mr. Justice Walker :

text:
    Joseph Ream et al. v. Sumner R. Stone et al.

      Filed at Springfield March 28, 1882.

    1. Taxes—distress therefor—Men—necessity for a warrant. A warrant is an indispensable part of the tax boohs, without which the collector has no power to levy and distrain for the payment of the taxes, and such warrant is essential to the creation of any lien on the personal property of the person charged with the taxes.

      2. Same—Ken on personalty, lost by neglect to levy. If the collector fails to make any levy on personal property for taxes until after the return day of the warrant, the warrant then being dead all liens that might have been, but were not, perfected by a levy, will be gone, and a purchaser from the tax debtor will take the property freed from any lien thereon for taxes.
    3. Same—lien on personalty for back taxes. Back taxes can not be made a lien, any more than current taxes, upon personal property, until the collector’s books, with a warrant authorizing their collection, is placed in the hands of the collector, and if such property is sold under chattel mortgage, and possession taken before any such lien attaches, the purchaser may enjoin a sale of the same on a subsequent levy, regardless of whether the mortgage was properly acknowledged or not.
    4. Decbee—construed as to saving liens for taxes. A decree of the United States Circuit Court that certain personal property of a railway corporation under mortgage be sold, “subject to all claims legally due for taxes which are a lien” on the same, and a direction in a certain other order that the proceeding should be “without prejudice to any of the rights or liens” that the treasurer, etc., had on the property for taxes, will preserve only such liens as are prior to the rights derived under the mortgage.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Season & Blinn, Messrs. Beach & Hodnott, and Messrs. Forrest & Humphrey, for the appellants:
    The tax books for 1873, 1874 and 1875, contained no warrant authorizing the collector to distrain and sell property, for which reason it is claimed these taxes were void. These several taxes were all carried forward on the tax book each subsequent year, up to the time the temporary injunction was granted. These taxes being afterwards carried forward and placed upon the tax books of 1876, to which a sufficient warrant was attached, cures the defect complained of Union Trust Co. v. Webber, 96 Ill. 348.
    It is claimed these taxes are not a legal claim against the purchasers. This is not so, for the reason that the several decrees in the United States Court provide that such purchasers shall take subject to all taxes assessed and due thereon. The purchasers are .not innocent ones.

      Mr. Luther Dearborn, and Mr. W. H. Campbell, for the appellees:
    For the purpose of taxation there is no difference between tangible and intangible property. It is a personal property tax. Binkert v. Wabash Ry. Co. 98 Ill. 205; Belleville Nail Co. v. People, etc. 98 id. 399.
    For this tax there is no lien on the property originally assessed, but it is- a lien that attaches to all the personal property of the tax debtor, without regard to whether it was previously assessed or not. Binkert v. Wabash Ry. Co. supra; Hill v. Figley, 23 Ill. 418.
    If the tax debtor mortgages or sells the property assessed before the tax books, with a legal warrant attached, come into the hands of the collector, the lien of the mortgagee, or the title of the purchaser, can not be affected. Gaar, Scott & Co. v. Hurd, 92 Ill. 315; Binkert v. Wabash Ry. Co. supra; Hill v. Figley, supra.

    In the case of Union Trust Co. v. Webber, 96 Ill. 359, the party obtained his claim after the assessment of the tax, and after the property had become charged with it. The personal tax can not be a lien upon the real estate of the tax debtor until- the steps required by the statute have been taken, and no steps were taken in this case. Rev. Stat. chap. 120, sec. 183; The Belleville Nail Co. v. The People, supra.

    But in no event can the personal tax be charged against the real estate, as against the mortgagee, even though he had notice of the personal tax when he took his mortgage. Schaffer v. People, 60 Ill. 179; Belleville Nail Co. v. People, supra.

    The lien being created by the warrant, the warrant must be such as is required by law, to create that lien. It is in the nature of an execution. Hill v. Figley, 25 Ill. 156; Cooley on Taxation, pp. 301, 302.
    To be a lien, it should contain the distraining clause. Bev. Stat. chap. 120, secs. 136, 137.

      The book containing the railroad tax should have the warrant. Rev. Stat. chap. 120, sec. 51.
    The warrant became dead after the return. Hill v. Figley, 25 Ill. 156.
   Mr. Justice Scholfied

delivered the opinion of the Court:

The object of this bill is to cause to be enjoined the seizure and sale of certain railroad property for the payment of taxes-assessed against the Indianapolis, Bloomington and Western Bailway Company. Complainants are a purchasing committee, representing certain bondholders, and they claim to own what was originally the Havana, Mason City and Eastern railway, but more recently known as “The Indianapolis, Bloomington and Western extension.” The .taxes, of which collection is being pressed, are those assessed against or on account of this property, for the year 1873, and the capital stock taxes assessed against the corporation on account of this property, for the years 1874 and 1875.

Complainants purchased at a sale of the master in chancery for the Circuit Court of the United States for the Southern District of Illinois, under a decree of that court foreclosing a mortgage executed on the 28th' of June, 1872. The sale occurred February 6, 1879, and a deed was executed to the complainants on the 9th of May, 1879. George B. Wright was appointed receiver of all the property (including this property) of the Indianapolis, Bloomington and' Western Bailway Company, by decree of a competent court, on the 1st of December, 1874, and he was then placed in possession thereof, and thenceforth retained the same until after the conveyance to the complainants, when he surrendered to them possession of the property conveyed to them. The circuit court enjoined the sale of the property claimed by the complainants, for the payment of the taxes in question, and in this ruling we think there was no error.

It is provided by section 254 of the Revenue act, (Rev. Stat. 1874, p. 809,) “the taxes assessed upon personal property shall be a lien upon the personal property of the person assessed, from and after the time the tax books are received by the collector. ” It is provided by a previous section (136), “to each town or district collector’s book, a warrant, under the hand of the county clerk and seal of his office, shall be annexed, commanding such town or district collector to collect, from the several persons named in said town or district collector’s book, the several sums of taxes therein charged opposite their respective names.” And the next section (137) provides, that “in all cases the warrant shall authorize the town or district collector, in case any person named in such collector’s book shall neglect or refuse to pay his personal property tax, to levy the same by distress and sale of the goods and chattels of such person; and it shall require all payments therein specified to be made by such town or district collector on or before the tenth day of March next ensuing.” And the 51st section of the same act requires, that “the county clerk shall procure, at the expense of the county, a record book, properly ruled and headed, in which to enter the railroad property of all kinds as listed for taxation, and , shall enter the valuation as assessed, corrected and equalized, in the manner provided by this act; and against such assessed, corrected or equalized valuation, as the case may require, the county clerk shall extend all the taxes thereon for which the property is liable; and at the proper time fixed by this act for delivering tax books to the county collector, the clerk shall attach a warrant, under his seal of office, and deliver said book to the county collector, upon which the said county collector is hereby required to collect the taxes therein charged against railroad property, and pay over and account for the same in the manner provided in other cases. Said book shall be returned by the collector, and be filed in the office for future use. ”

It will thus be seen that the warrant is an indispensable part of the tax books, and that it is that which confers power upon the collector to levy and distrain for the payment of the tax. And so, in Hill et al. v. Figley, 23 Ill. 418, wre said: “We have no hesitation in believing that the legislature intended to bind all the personal property in the hands of the tax-payer, from the time the collector receives his warrant until it is paid, precisely as an execution binds the property of the debtor on its delivery to the officer. ” And again, in Binkert v. Wabash Ry. Co. 98 Ill. 218, we said: “When the tax books come to the collector’s hands, the personal taxes at once, and not before, just like an execution, become a lien upon the personal property which the person assessed then' owns, without regard to what he may have owned when the assessment was made. ” And the same analogy requires us to hold that if no levy shall be made by the expiration of the time within which the collector is required to make return (March 10), the warrant is officially dead, and then all liens which might have been, but were not, perfected by a levy, are gone. Garner v. Willis, Breese, (Beecher’s ed.) 368.

It is here shown no warrants were annexed to the collect- or’s books for the years .1873, 1874 and 1875, and so.no distress was nor could have been made for the taxes of those years, nor was nor could there have been any property seized or levied upon for those taxes. For the year 1876 and subsequent years warrants were annexed to the collector’s books, but only for the collection of the taxes “for the current years, ” which, of course, could not embrace the taxes here in controversy.

But it is contended, inasmuch as the back taxes were brought forward each year-and extended against the valuation of the railroad property, the want of a warrant was not material. It is not perceived what effect this has upon the question of a lien. Back taxes can not he made a lien, any more than current taxes, upon personal property, until the collector’s books, with a warrant authorizing their collection, is placed in the hands of the collector; and. taxes assessed against personal property can only be made a lien upon real property by observing the requirements of the statute in that regard, of which there is no pretense whatever in the present case. Belleville Nail Co. v. The People ex rel. 98 Ill. 399.

We held in Binkert v. The Wabash Ry. Co. supra, and in Gaar, Scott & Co. et al. v. Hurd, 92 Ill. 315, that the purchaser of personal property, under mortgage sale, before a lien for the taxes had attached, took the property free of all claim for the taxes, and, inasmuch as no lien was here perfected upon the property before the purchase and possession by complainants, we can not regard it of consequence whether the mortgage was, or not, properly acknowledged as a chattel mortgage. It was certainly sufficient, where possession was obtained by a purchaser under it, as against subsequent claims.

Counsel, however, make the point, that inasmuch as the decree of the United States Circuit Court, under which the sale was made, provided that the “sale be made subject to all claims legally due for taxes which are a lien upon said extension railroad, prior to said mortgage, ” and said court, also, at a subsequent time, made an injunction order against the several county treasurers in the collection of these taxes, in which the court expressly provided that the order should be “without prejudice to any of the rights or liens that the said treasurers, or each or any of them, has in or upon said property for said taxes.” But counsel, to avail of this, assume the very point in dispute, namely, that these taxes were a prior lien to the rights of complainants. If the tax lien is prior to the rights under the mortgage, the court by this decree, preserves it, but not otherwise.

But if we are right in the views heretofore expressed, the taxes are entitled to no such priority. Wright, as receiver, filed his bill in the circuit court of Peoria county, praying that the tax levied upon the capital stock be enjoined. On hearing in that court his bill was dismissed, and that decree was affirmed in this court, on appeal-, in vacation, after the • September term, 1877, and that decree is set up and relied upon as conclusive of the relief here sought. The question here is between different parties, and the relief sought is upon different grounds from that there sought. ^ The receiver there attacked the validity of the tax, and denied the liability of the corporation to pay it. Here the validity of the tax is not questioned. It is only denied that complainants, as purchasers of the corporate property, are bound to pay it. This defence concedes the corporate liability, but simply denies that complainants stand in the place of the corporation in that respect.

As respects the taxes of 1873, assessed on account of railroad track, it need only be remarked there was no description of that property, and, consequently, no basis for the tax. People ex rel. v. Chicago and Alton R. R. Co. 96 Ill. 369.

Perceiving no sufficient reason for' disturbing the decree below, it is affirmed.

Decree affirmed.

Mr. Justice Walker :

As I understand, in this case the taxes were regularly levied, and when levied they became a lien on the property of the road, and they were continued on the collector’s books from year to year, and that, under the statute, continued the lien, whether the warrant authorized the assessor to distrain or not. The statute makes the personal tax a lien on the real estate of the owner, and that was not released by an omission to insert a power of distraint in the warrant, and that lien was kept alive by continuing the tax on the collector’s books. This very tax was held legal and valid in Wright v. Allhaus, at the September term, 1877, of .this court. That decision was final, and the United States Court had no power whatever to review that decision or enjoin the collection of the taxes, nor did or could the injunction of that court operate to release the lien or to change the rights of the parties as adjudged by this court. A mortgagee or lienholder can not enjoin a tax which is a lien on the mortgaged property, until after the return day of the collector’s warrant, and then purchase under a foreclosure, and thus cut off the lien for taxes. To permit a tax to be thus defeated is, in my judgment, inequitable. That is what has been done in this case, if not by the purchasers, by their receivers, and who acted for them in obtaining the unauthorized injunction and in purchasing the property. I must therefore dissent.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Charles Hamilton et al. v. The State of Illinois, by John Craig, Inspector, etc.

      Filed at Springfield March 28, 1883.

    1. Statutes—rule of construction. It is an established rule in the construction of statutes, that the intention of the law-giver is to be deduced from a view of the whole and every part of a statute taken and compared together, and the real intention, when ascertained, will always prevail over the literal sense of terms.
    2. Mines—statute relating to time for constructing escapements. The act of 1879, relating to the health and safety of persons employed in coal mines, repealed all of the act of 1877 on the same subject, except such parts thereof as were retained and kept in force by the proviso to section 3 of the act of 1879, which section shows an intention not to change the then existing law which had prescribed a time within which escapement shafts should be constructed in mines which were in operation on the first day of July, 1877.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macoupin county; the Hon. W. E. Welch, Judge, presiding.

      Mr. 0. A. Walker, and Messrs. Rinaker & Rinaker, for the appellants.
    Mr. Alexander H. Bell, for the appellee.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill for injunction, brought by the inspector of coal mines of Macoupin county, against appellants, who were operating a coal mine in which there was no escapement shaft.

It is alleged in the bill that the mine is operated by means of a shaft; that its depth is 330 feet; that it was in operation prior to July 1, 1877; that there were employed, as miners, in the mine, more than ten men; that there is no escapement shaft to the mine, nor any connection with any adjacent mine, or other means of entrance or exit except the one out-shaft. These allegations of the bill were admitted by the answer, and on the hearing a decree enjoining appellants from operating the mine was rendered as prayed for in the bill. On appeal to the Appellate Court this decree was affirmed.

There is no controversy between the parties over the facts in the record, the only question presented being one of law, and that depends upon the construction of sections 3 arid 17 of “An act providing for the health and safety of persons employed in coal mines, ” approved May 28, 1879. Laws of 1879, p. 204.

In 1877 the legislature passed an act on the subject, the third section of which in substance provides, that “in all coal mines that are or have been in operation prior to the first day of July, 1877, and which are worked by or through a shaft, and in which more than ten miners are employed in each twenty-four hours, there shall be an escapement shaft, and the time allowed for the construction of same shall be one year, when the mine is less than 100 feet deep, two years, when such mine is 100 feet in depth and under 300 feet, and three years,.when it is over 300 feet and under 400 feet.” This act went into force July 1, 1877, and und'er its requirement, as the mine in question was in operation when the act took effect, and as it was over 300 feet deep, the time to construct the escapement shaft would expire July 1, 1880.

It is, however, contended that this act was repealed by -the act of 1879," referred to supra. The third section of that act is substantially as follows: “In all coal mines that are, or have been, in operation prior to the -first day of July, in the year of our Lord 1879, and which are worked by or through a shaft, slope or drift, and in which more than ten miners are employed in each twenty-four hours, if there is not already an escapement shaft to each and every said coal mine, or communication between each and every coal mine and some other contiguous mine, then there shall be an escapement shaft for other communication, such as shall be approved by the mine inspector, making at least two distinct means of ingress and egress for all persons employed or permitted to work in such coal mine. Such escapement shaft, or other communication with a contiguous mine, as aforesaid, shall be constructed in connection with every vein or stratum of coal worked in such coal mine; and the time to be allowed for such construction shall be * * * three years, when it is over three hundred (300) and under four hundred (400) feét, * * * from the time this act goes into effect; * * * and in all coal mines that shall go into operation for the first time after the first day of January, A. D. 1880, such an escapement shaft shall be constructed within one year after such mine shall have been put into operation. And it shall not be lawful for the owner, agent or operator of any such coal mine as aforesaid, to employ any person to work therein, or permit any person to go therein for the purpose of working, except such persons as may be necessary to construct such an escapement shaft, unless the requirements of this section shall have first been complied with: * * * Provided, nothing in this section shall be construed to extend the time allowed by law for constructing escapement shafts.”

Section 17 provides, that “all acts or parts of acts inconsistent with the provisions of this act, are and the same are hereby repealed. ” Under this repealing clause it is apparent that the act of 1877 was repealed, except such portions of the act as were retained and kept in force by the proviso to section 3.

It is an established rule, in the construction of statutes, that the intention of the law-giver is to be deduced from a view of the whole and every part of a statute taken and compared together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms. Kent, vol. 1, p. 462.

The construction of the section of the statute is not entirely free from difficulty, yet upon a careful examination of the language used we are of opinion that the section was not designed to change the then existing law, which had prescribed a time within which escapement shafts should be constructed in mines which were in operation on the first day of July, 1877. Appellants’ mine was between 300 and 400 feet deep, and under the act of 1877, the three years in which they were required to construct an escapement shaft would expire on the first day of July, 1880. In order to require appellants to be controlled by the act of 1877, and to leave that law in full force and effect, in so far as the time was concerned, the legislature, in enacting the third section of the act of 1879, added the proviso that nothing in the section should be construed to extend the time allowed by law for constructing escapement shafts. This proviso evidently referred to the law of 1877. It was the only law on the subject then in force, and the manifest intent was,- when that law had fixed a time within which a shaft should be constructed, not to interfere with that law so far as extending the time was concerned. No other construction can he placed upon section 3, unless the proviso is entirely rejected, which we do not think it is the province óf courts to do. The proviso was added to section 3 of the act for a well defined purpose, and when that purpose can be discovered from an examination of the terms of the act, it is the duty of courts to place such a construction upon it as to "carry out the intent.

We are of opinion that the judgment of the circuit court was right, and the judgment of the Appellate Court will have to be affirmed, •

Judgment affirmed.


author: Mr. Justice Dickey

text:
    J. D. Brown v. Moses Jerome.

      Filed at Springfield March 28, 1882.

    1. Constitutional law—power of police magistrate to issue process against the body. A provision in a charter of a town giving the police magistrate power, in certain contingencies, to issue process against the body of an offender, for the satisfaction of the judgment against him for violation of an ordinance, is not in violation of any constitutional provision, and is valid.
    2. Process—when a protection^ to officer serving. The statute having authorized the issue of execution by justices of the peace, in certain cases, within less than twenty days from the date of the judgment, a constable receiving an execution against the body of a defendant, issued within twenty days from the judgment, will have the right to assume that the justice had properly issued the same, and if good upon its face, it will fully protect the constable in executing its mandate.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. E. L. Sweet, for the plaintiff in error.
    Mr. T. J. Smith, for the defendant in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action of trespass, brought in the circuit court, by Jerome against Brown, for assault and battery, and unlawful imprisonment, alleged to have been committed by the defendant upon the person of plaintiff. Defendant justified the arrest by a plea setting up the recovery of a judgment by the town of Bantoul against plaintiff, of $10, as a fine for a violation of an ordinance of that town, and the issuance of process upon that judgment by the police magistrate of the town before whom the judgment was recovered, and the delivery thereof to the defendant, a constable, to be executed. To this plea the circuit court sustained a demurrer, and the cause proceeded to judgment against Brown, for damages ($25) and costs. He brings the record here upon writ of error. The ground for bringing the case to this court direct, is the supposed question as to the validity of a statute.

The charter of the town of Bantoul, passed in 1869, expressly authorizes suits for violation of ordinances to be brought before the police magistrate, and also authorizes him, in certain contingencies, to issue process against the body of the offender for satisfaction of judgments in such cases. It is contended by defendant in error that by the adoption of our present constitution this last clause in the charter was abrogated, and that hence the process issued in 1879 under that clause was illegal and void.

Two clauses of the constitution are relied upon,—one saying, “the jurisdiction of justices of the peace and police magistrates shall be uniform, ” (sec. 21, art. 6,) and the other saying, “the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the «force and effect of the process and judgments of such courts severally, shall be uniform. ” It is not perceived that anything in these clauses militates against the validity of this process. The adoption of the constitution placed police magistrates in the same grade with justices of the peace. This no doubt abrogated all statutory provisions clothing such magistrates with special powers not possessed generally by justices of the peace, but it did not deprive them of any powers possessed generally by justices of the peace. The ordinance was valid. Section 14, chap. 79, Bev. Stat. 1874, says: “Justices of the peace shall have jurisdiction, in all cases, for violation of the ordinances of cities, towns and villages.” By operation of the constitution this clothes police magistrates with the same jurisdiction, if they had it not before. Section 83 of the same chapter declares, that “upon all judgments in actions in tort * * * the justice may issue an execution against the body, or goods and chattels of the defendant, at the election of the plaintiff. ” It can hardly be questioned at this day that an action for the violation of an ordinance is an “action in tort.” The form of the process against the body in such actions is given in section 86 of the same chapter, and the process set out in the plea in this case in substance conforms to the form in the statute. It seems, therefore, that unless the validity of these general statutes be wanting, the judgment and process were lawful.

It is suggested that the process was void because issued in less than twenty days from the date of the judgment. The statute authorizes execution to issue, in certain contingencies, within less than twenty days. The constable had a right to assume that the justice had properly issued the process. It was good upon its face, and was a full protection to 'the constable. We think the plea presented a full defence. It was error to sustain a demurrer to the same.

The judgment is, therefore, reversed, and the cause remanded.

Judgment reversed,.


author: Mr. Justice Walker

text:
    Ellen E. Sanford v. The People ex rel. Andrew J. Barr, Collector.

      Filed at Springfield March 28, 1882.

      Taxation—void description of land. A lot assessed as “lot 5 in assessor’s subdivision of the west half of section 1, township 13 north, range 12 west, ” no number of acres being given, when it appears that no plat of any such lot as described was ever made and recorded, is incapable of being found or located. Such a description is totally insufficient, and no judgment can be had against the premises for the taxes assessed thereon.
    Appeal from the County Court of Edgar county; the Hon. Andrew Y. Trogden, Judge, presiding.
    Messrs. Hunt & Dyas, for the appellant.
    Mr. A. J. Hunter, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a proceeding commenced by the collector of taxes of Edgar county, for the collection of back taxes on a lot in the city of Paris, in that county. The collector claimed there was due as back taxes, interest, etc., $688.72. The application was to' the May term, 1881, of the county court, and on a hearing, appellant filed objections, but the court rendered a judgment against the lot for the sum of $206.01. From this judgment an appeal was prayed and perfected, and various errors are assigned for a reversal of the judgment.

We deem it necessary to consider only one assignment of error, as that must reverse the judgment. This is a proceeding for the collection of back taxes levied for the years 1876, 1877 and 1878, and the judgment seems to have been rendered for the taxes of the year 1878. The premises were described and assessed for these several years as lot 5, in assessor’s subdivision of the west'half of section 1, township 13 north, range 12 west. It is stipulated that there never was such a plat made and recorded, hence the objection that there was no land described against which any taxes or a hen for taxes could attach. To create a hen for taxes on real estate, it must be described so it may be located and found. People v. Chicago and Alton R. R. Co. 96 Ill. 369. In this case, however, there is nothing by which this piece of land can be found, to answer the assessor’s description. It is admitted of record that there is no such plat as that referred to by the assessor. If no such plat, then the only reference is to the west half of section 1. There is nothing to locate this land on any specific portion of that half section, nor is there anything in the description indicating the number of acres that was intended to be assessed. The description is totally insufficient to answer the requirements of the statute.

It may be that we might hold, that inasmuch as the judgment is not for the sale of appellant’s lands, nor could be held to affect her title, she has no standing in court to urge this objection. But inasmuch as under the circumstances of this case a sale might operate to embarrass her title, we are inclined to follow The People v. Chicago and Alton R. R. Co. supra.

The judgment of the county court is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scott

text:
    James S. Sconce v. Elam Henderson et al.

      Filed at Springfield March 28, 1882.

    1. Practice—finding of facts by Appellate Cowt, conclusive on this court. An affirmance of a judgment by the Appellate Court implies a finding of the facts in the same way they were found by the trial court, and such finding, under the statute, is conclusive upon this court.
    2. Witness—competency—as against cm administrator of an estate. The principal maker of- a promissory note is a competent witness in a suit thereon against the administrator of a deceased surety alone, to prove its execution by the intestate. In such case the witness is not a party to the suit, and his interest is equally balanced, and his testimony is not given on his own motion, or in his own behalf.
    3. Same—impeachment—not as to irrelevant matters. It is not the prac- ' tice to permit a party to ask questions touching irrelevant matters, and then prove that the witness has made different statements concerning them, for the purpose of impeaching him.
    Writ op Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. Oliver L. Davis, Judge, presiding.
    Mr. D. D. Evans, for the plaintiff in error:
    -William M. Slunkard, being the son and heir of Bobert Slunkard, deceased, and, according to his statement, a joint maker of the note sued on, was not a competent witness to prove the execution of the note by his father, in a suit against his estate, he being directly interested in the event of the suit. Whitman v. Rucker, 71 Ill. 413; Boynton v. Phelps et al. 52 id. 219; Kent v. Mason, 79 id. 543.
    If the law permitted the witness to be made a co-defendant with the administrator, he would be incompetent, and no reason is perceived why he is competent when not joined.

      As to the questions laying the foundation for impeachment, and excluded by the court, reference is made to 1 Wharton on Evidence, secs. 551, 554; 1 Greenleaf on Evidence, sec. 462; 1 Phillips on Evidence, 293; Stephens’ Digest of Evidence, 146; Craig v. Rohrer, 63 Ill. 325.
    Messrs. Mann, Calhoun & Frazier, for the defendants in error:
    The statute makes all persons, whether parties or not, competent to testify in all cases, except that no person being a party to a suit, or directly interested in the event thereof, can testify, of his own motion, or in his own behalf, where the representatives of a decedent defend as such. The witness, here, was not a party to the suit, and was not directly interested in the event thereof, because if his father’s estate is made to pay this sum, the estate has its remedy against him.
    The objection that the court refused to allow certain impeaching questions to be asked of the witness, is met by the answer that the questions were not material to the issue.
   Mr. Justice Scott

delivered the opinion of the Court:

The declaration in this case counts on two promissory notes, purporting to have been made by William M. Slunkard, and Robert Slunkard, since deceased. The suit was commenced against the administrator of Robert Slunkard, deceased, alone, the surviving maker of the notes not having been made a party. The pleadings put in issue the making qf the notes by the intestate, and upon that issue the cause was tried. The jury to whom the cause was submitted found the issues for the plaintiffs, and assessed their damages at the sum due on the notes. The circuit court, after having overruled a motion for a new trial, entered judgment on the verdict. That judgment was affirmed in the Appellate Court, and as the sum involved exceeds $1000, defendant brings the case to this court on error, as he has a right to do under the Practice act.

The affirmance of the judgment by the Appellate Court implies a finding of the facts in the same way they were found in the trial court. It was there found the intestate made the notes. That was a controverted fact in the case, and of course the finding of the Appellate Court touching that fact is conclusive, under the statute, on this court. Only such questions of law as arise on the record remain to be considered.

On the trial the court permitted plaintiffs to read in evidence the deposition of the surviving maker, to prove the intestate executed the notes. It is not perceived there was any error in that ruling of the court. The witness was not a party to the suit, and conceding he was directly interested in the event of the suit, his interest, whatever it might be, was equally balanced. No matter in whose favor the suit might terminate, he was, and would ultimately be, liable for the whole sum due on the notes. The intestate was merely surety for the witness, and if plaintiffs succeeded, he would be obligated to reimburse the estate for anything the administrator might have to pay for him, but if the defence prevailed, he would still be liable on the notes to plaintiffs. So he was indifferent as to the result, so far as any legal interest was concerned. It was not of his own motion, or in his own behalf, that he testified, and he is not therefore within the provisions of that section of the statute that forbids a party to a civil suit, or a person directly interested in the event thereof, from testifying therein, of his own motion, or on his own behalf, where the adverse party sues or defends as administrator, or in any other representative capacity mentioned in that section of the statute.

The questions and answers excluded from the deposition of the witness related to matters irrelevant to the real issues being tried, and had the witness been contradicted as to them, as was proposed to he done, it would have been of no consequence one way or .the other. It has not been the practice to permit a party to ask questions touching irrelevant matters, and then prove the witness had made different statements concerning them, for the purpose of impeaching him.

The facts set forth in the affidavits in support of the motion for a new trial would, at most, constitute only cumulative evidence, and come within the rule a verdict will not be set aside and a new trial awarded to enable the unsuccessful party to introduce mere cumulative evidence, not conclusive in its character.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    City of Chicago et al. v. The Union Building Association.

      Filed at Springfield March 28, 1882.

      ■ 1. Street—rights of adjacent property owners—in respect to the use of a street. The owners of property bordering upon streets, have, as an incident to their ownership of such property, a right of access by way of the streets, which can not be taken away or materially impaired by the city without incurring legal liability to the extent of the damages thereby occasioned, and to this extent it may be said' there is a special trust in favor of adjoining property holders. But in no other respect do such owners or citizens of the municipality have a right in the streets other or different from that of the public generally.
    2. Same—breach of trust—increasing burdens—rights of individuals. Property holders in a city have an equitable right to have enjoined any breach of trust intended by the municipality, by w'hich their burdens of taxes or special assessments for the opening,"repairing or improving of streets, etc., will be materially increased.
    3. Same—vacating a street—rights of more remote property owners to prevent the same—and as to the grounds thereof. The owner of a lot and buildings thereon can not maintain a bill to enjoin the city and its authorities from vacating a part of a street in the city, some three and a half blocks distant from his property, where it does not appear that he will suffer some special injury different from that of. the public generally, though in a greater degree, and where the burdens of taxation are not thereby increased, and his property will not sustain any physical injury in consequence of the vacation. And the fact that in consequence of such vacation a corporation will change its place of business, thereby diminishing the complainant’s tenants, will not authorize suph a bill.
    4. The fact that property owners upon a street have been specially assessed as benefited by the opening of a part of the street some blocks off, and have paid such assessments, does not give them any special property in such street any more than to any other tax-payer, and gives them no equitable ground to enjoin the vacation of such part of the street.
    5. Actions—bemedies—rights of individuals as to an obstruction of common right, or breach of public 1/rust. For any act obstructing a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although in a much greater degree than any other person, but an action will lie for peculiar damages of a different kind, though even in the smallest degree.
    6. A private individual can not maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Babnum, 'Judge, presiding.
    The Union Building Association filed a bill in the circuit court of Cook county, against the city of Chicago, alleging therein that complainant was a property owner and tax-payer of the city of Chicago, and the owner of a building on the south-west corner of Washington and LaSalle streets, fronting on LaSalle street 100 feet; that there was located on the south-east corner of Washington and LaSalle streets a building, called the Chamber of Commerce, occupied by the Board of Trade of the city of Chicago, where its business was transacted; that because of said location, the members of said Board of Trade have their business offices in the immediate vicinity; that because of the location of said board at that" place, the complainant had built a more expensive building in 1872 and 1873.
    The bill further states, that about the 1st of January, 1881, divers persons, some connected with the city council or city government, commenced to agitate the removal of the Board of Trade to a certain piece of ground, bounded on the south by Van Burén street, on the east by Pacific avenue, on the north by Jackson street, and on the west by Sherman street, which would occupy the southern end of LaSalle street, lying between Van Burén and Jackson streets, and that the city of Chicago was taking a direct part in aiding said removal, and that the board is unwilling to remove unless that part of LaSalle street can be vacated; that a petition has been presented for such vacation to the council, which was referred to the committee on streets and alleys, and a report thereon made, and as a part of said report an ordinance vacating said street was recommended. On the 23d day of June, 1881, said ordinance was passed by a vote of 29 yeas to 6 nays. The ordinance is set out in the bill, and has been approved by the mayor.
    The complainants aver that if the street shall be vacated they will suffer great damage to their property, which they are unable to establish with accuracy, and that all the property owners upon La Salle street, and other streets in the vicinity of the Chamber of Commerce building, will also be damaged to a great extent, which will entail a liability on the city of Chicago in excess of the limitation established by the constitution. The bill avers that there is no provision at law by which the damage can be ascertained, or determine what persons or property may be damaged by reason of the proposed vacation. The bill avers that unless the city of Chicago is restrained it will tear up the bed of that part of LaSalle street so attempted to be vacated, and cause it to become impassable as a thoroughfare, and that the complainant will be prejudiced if an injunction is not issued immediately and without notice. The bill prays for an injunction against the city of Chicago, restraining it from proceeding to execute its orders for the vacation of that part of LaSalle street between Jackson and Van Burén streets. A temporary writ was ordered and served upon the city.
    The answer of the city of Chicago to the bill admits that the complainant is the owner of property; that the Chamber of Commerce is situated as in the bill described, and occupied by the Board of Trade; that many of the members of the board have offices in the vicinity of the said Chamber of Commerce; that persons about January 1, 1881, agitated the subject of the removal of the Board of Trade, as alleged in the bill, but neither admits nor denies that any persons connected with the city government participated in such agitation.
    The answer avers that the Board of Trade would be removed whether LaSalle street is vacated or not, and claims that all such matters are immaterial. The defendant admits that petitions were presented to the city council praying the vacation of LaSalle street between Jackson and Van Burén streets, and attaches copies thereof as exhibits; that the petitions were referred to the committee on streets and alleys, and an ordinance reported on the 23d day of June, 1881, which was passed, as alleged in the bill.
    The answer denies that there was any arrangement or agreement between the city or any of its officers with reference to the vacation of said street, or the removal of the Board of Trade. The answer sets out the location, and length of LaSalle street to be 3700 feet, and gives a diagram of the premises where the vacation was made, and shows that Pacific avenue and Sherman street, parallel with the vacated part of La Salle street, were widened by dedication, as a condition to the vacation.
    The answer further avers that all of the owners of property abutting on the vacated part released to the city all claims and demands for any injury caused thereby, and dedicated the ground necessary for the widening of, the parallel streets. Defendant also sets forth the petitions of persons owning property on LaSalle street for more than half its distance from the vacated part.
    The answer further shows that the vacated part of LaSalle street was obtained by condemnation proceedings in the year 1866, under the charter of the city, and avers that it is not liable for damages to the complainant or any other owner of property in the vicinity of the Chamber of Commerce, and if it is so liable there is ample remedy at law. The answer states that the complainant’s building is 1780 feet from the vacated part of La Salle street.
    The answer sets up. that the city was reorganized under the act of 1872, and that by one of the provisions of said act the city council was authorized to vacate streets, and the defendant denies that it intended to tear up the bed of any portion of La Salle street, or to interfere with the same in any manner whatever, but avers, on the contrary, that on the passage of said vacation ordinance the premises were abandoned by the city, and defendant ceased to have any control over the same.
    The following map shows the part of La Salle street to be vacated:

      On the 3d day of December, 1881, an amended and supplemental bill was filed making the Board of Trade of the city of Chicago, and John R. Bensley, parties defendant, as well as the city of Chicago. On the same day the Board of Trade of the city of Chicago filed its separate answer to the amended and supplemental bill. On the same day John B. Bensley filed an answer, adopting that of the Board of Trade. Replications were filed t'o the answers. On the same day a pro forma decree was rendered, granting the relief prayed for by the complainant, and declaring the ordinance of vacation illegal and void, and from this decree an appeal was prayed to the Appellate Court.
    In the Appellate Court, on the filing of the record on the 14th day of December, 1881, the decree of the circuit court was, pro forma, affirmed, and an appeal taken -to this court. The appellants now assign as error the decision of the Appellate Court in affirming the decree of the circuit court.
    Mr. Francis Adams, for the City of Chicago:
    The city of Chicago has the power, by its charter, to vacate streets by ordinance passed by a majority of three-fourths of all the aldermen authorized by law to be elected, the vote to be taken by ayes and nays, and entered on the record of the council. Bev. Stat. ch. 24, art. 5, sec. 1, sub-secs. 7, 96; id. ch. 145, sec. 1.
    The motives which influenced the city council to pass the ordinance can not be inquired into. Fletcher v. Peck, 6 Cranch, 129; Cooley’s Const. Dim. 186, 208, note 3; Dillon on Municipal Corp. (3d ed.) 313; New York and Harlem R. R. Co. v. Mayor of New York, 1 Hilton, 588; Buell v. Ball, 20 Iowa, 292; Borough of Freeport v. Marks, 59 Pa. St. 253; Jones v. Loving, 55 Miss. 109; Paine v. Boston, 124 Mass. 190.
    The power to vacate a street is a discretionary power, to be exercised or not, as the public good may require, and the city council- is necessarily the sole judge of the necessity for, and the expediency of, the exercise of the power. Dillon on Municipal Corp. (3d ed.) 945, old ed. 753, sec. 94; Goodrich v. Chicago, 20 Ill. 445; City of Joliet v. Verley, 35 id. 63; Brush v. Village of Carbondale, 78 id. 77; Spiegel et al. v. Gausberg et al. 44 Ind. 418; Gray v. Iowa Land Co. 26 Iowa, 387; Gazler v. Corporation of Georgetown, 6 Wheat. 593; Utica Ins. Co. v. Lynch et al. 3 Paige, 212; Sugar Refining Co. v. Mayor of Jersey City, 11 C. E. Green, 250; Des-Moines Gas Co. v. City of DesMoines, 44 Iowa, 505; Wells v. Mayor of Atlanta, 46 Ga. 67; Danielly v. Cabaniss et al. 52 id. 213; Baker v. City of Boston, 12 Pick. 192. Merely consequential damage by reason of a public improvement, where no property is taken, is not within the meaning of either section 13 of the Bill of Rights, or the Eminent Domain law. Stetson v. Chicago and Evanston R. R. Co. 75 Ill. 75; Patterson v. Chicago, Danville and Vincennes R. R. Co. id. 588; Peoria and Rock Island R. R. Co. v. Schertz, 84 id. 135; Truesdale v. Peoria Grape Sugar Co. 101 id. 561; Fearing et al. v. Irwin et al. 55 N. Y. 490; Sugar Refining Co. v. Mayor of Jersey City, 11 C. E. Green, 250.
    Appellee has not shown sufficient interest to entitle it to the relief sought by the bill.
    Mr. C. Beckwith, for the appellant John R. Bensley:
    An interference with a right enjoyed simply and solely as one of the public, is not actionable, except when such inter- ' ference deprives an individual of some private right different in kind from the one enjoyed by the rest of the world. Caledonia Ry. Co. v. Ogilvy, 2 McQueen’s Sc. App. 229; Ricket v. Metropolitan Ry. Co. L. R. 2 H. L. 175; Duke of Buccleagh v. Board of Works, L. R. 5. H. L. 418; Board of Works v. McCarthy, L. R. 7 H. L. 252; Attorney General v. Conservators of River Thames, 1 H. & M. 1; Lyon v. Fishmonger’s Co. L. R. 1 App. Cases, 662; Mayor v. Drummond, id. 384; Bell
      v. Quebec, L. R. 5 App. Cases, 100; Rhodes v. Airdale Comm. L. R. 1 C. P. D. 402; Hopkins v. Railroad Co. L. R. 22 B. D. 224.
    The power of the city council to vacate streets is not dependent on or restricted by the mode in which they were laid out. The payment of an assessment for benefits occasioned by the opening of a street, does not create a contract on the part of the city never to vacate the same, nor to restrict the power so to do.
    A court of equity will not exercise its powers simply to remove an obstruction in a public highway, upon the complaint of an individual who has no interest in its .removal differing in kind from the rest of the public.
    Mr. A. McCoy, also for the appellant Bensley:
    The city council, in passing this ordinance, acted in the capacity of a legislative body, and the ordinance, when passed, had the force and effect of a law enacted by the legislature of the State. Mason et al. v. City of Shawneetown, 77 Ill. 537; People v. Reynolds, 4 Gilm. 13; Tugman v. Chicago, 78 Ill. 410.
    The intention and policy of a legislative body in enacting a law can only be determined from the act itself. No issue can be formed to make this, inquiry from parol or extrinsic facts. Wright v. Deefrees, 8 Ind. 298; McCulloch v. State, 11 id. 431.
    That -the courts have nothing to do with the propriety or expediency of a statute or ordinance, see Sherlock v. Village of Winnetka, 59 Ill. 398; Burr v. City of Carbondale, 76 id. 461; Hensley Township v. People ex rel. 84 id. 550; Spiegel v. Gausberg, 44 Ind. 492; State v. Higgins, 47 id. 589; Sedgwick on Stat. and Const. Law, 208, 209.
    Mr. W. C. Goudy, for the appeUant the Board of Trade:
    Of the necessity or expediency of exercising a power conferred upon municipal authorities which involves a discretion. the opinion and judgment of such authorities is conclusive ujdou the courts. Chicago, Rock Island and Pacific R. R. Co. v. Lake, 71 Ill 330; Dillon on Municipal Corp. sec. 465 ; Curry v. Mt. Sterling, 15 Ill. 320; Dunlap v. Mt. Sterling, 14 id. 251; Dunham v. Hyde Park, 75 id. 377; Brush v. Carbondale, 78 id. 77; N. Y. and N. H. R. R. Co. v. Mayor, 1 Hilton, 563; High on Injunctions, secs. 1270, 1271; Burr v. Carbondale, 76 Ill. 455; Parks v. Boston, 8 Pick. 218; Crockett v. Boston, 5 Cush. 182.
    The property of the Union Building Association was not damaged by the vacation, within any rule of law, so as to enable .the owners to maintain a suit, either at law or in equity.
    To entitle the complainant to a legal remedy, it was' required to prove—
    First—That it’ had suffered an injury for which it could recover damages, if it were deprived of the vacated part of LaSalle street without legislative authority.
    Second—That it owned property, or a right appurtenant to its property necessary to its proper enjoyment, which will be damaged by the vacation.
    Third—-That the right affected is not a public one-, or one enjoyed in common with the public.
    Fourth—That the effect of the vacation is such as to decrease, substantially, the value of its property at the corner of LaSalle and Washington streets. Smith v. Boston, 7 Cush. 254; Castle v. Berkshire, 11 Gray, 26; Brightman v. Fairhaven, 7 id. 271; Paul v. Carver, 24 Pa. St. 207; Brady v. Shinkle, 40 Iowa, 576; Barr v. Oskaloosa, 45 id. 275; Ellsworth v. Chicasaw Co. 40 id. 571; Shaubert v. Railroad Co. 21 Minn. 502; Wilder v. De Core, 21 id. 11; Pollack v. Orphan Asylum, 48 Cal. 490; Schulte v. U. P. T. Co. 50 Cal. 892; Fearing v. Irwin, 55 N. Y. 486; Coster v. Mayor, 43 id. 339; Sargent v. Railroad Co. 1 Handy, 52; Lansing v. Smith, 8 Cow. 146; People v. Supervisors, 20 Mich. 95; Riggs
      v. Detroit, 27 id. 202; Hinchman v. Detroit, 9 id. 103 ; Transylvania University v. Lexington, 3 B. Mon. 27; Higbee v. Railroad Co. 19 N. J. Eq. 276; Bailey v. Railroad Co. 4 How. 389 ; Kittle v. Fremont, 1 Neb. 329; Haynes v. Thomas, 7 Ind. 38; Venard v. Cross, 8 Kan. 248;. C. B. U. P. R. R. Co. v. Twine, 23 id. 585; Railroad Co. v. Combs, 10 Bush, 382.
    Mr. E. H. Kales, and Mr. M. W. Fuller, for the appellee:
    Upon the evidence in this case the ordinance is merely part of a contract made to promote a private object, and as such it is unauthorized and void.
    The distinction between public and private acts, and the jurisdiction of the court to inquire into the objects and purposes' of the. latter, is well settled. Charles River Bridge v. Warren Bridge, 11 Pet. 600; Edwards v. Pope, 3 Scam. 465; 1 Blackstone’s Com. 181.
    No power of sale or exchange of streets can be found in the charter, whether to accomplish a public or private object, and the law forbids the employment of the forms of legislation to advance a merely private enterprise. Loan Association v. Topeka, 20 Wall. 655; Commercial Bank v. City of Iola, 2 Dill. 353; Allen v. Joy, 60 Maine, 124; Lowell v. Boston, 111 Mass. 454; 1 Dillon on Mun. Corp. sec. 381.
    The principle is ivell established that powers conferred upon public officers in relation to corporate property, are trusts, ■ and that they hold the public property in trust, and equity has jurisdiction to prevent a breach or abuse of such trusts. Jackson v. Norris, 72 Ill. 366; Schofield v. Eighth School District, 27 Conn. 499; Lewis v. City of Providence, 10 R. I. 100.
    This jurisdiction has been exercised by courts of equity, to see that trusts and public duties have been observed, and to prev.ent acts in violation of such duties, in the following cases: Cotton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 id. 160; Prettyman v. Supervisors, etc. 19 id. 406; Campbell v. Paris and Decatur R. R. Co. 71 id. 612; Chestnutwood v. Hood, 68 id. 132; Devine v. County Comrs. 84 id. 590; Mayor of Springfield v. Edwards, id. 626; Leitch v. Wentworth, 71 id. 146 ; Shaw v. Hill, 67 id. 455 ; Schofield v. Eighth School District, 27 Conn. 499; Hurd v. Walters, 48 Ind. 148; McIntyre v. Perkins, 9 Phila. 484; Comrs. v. Templeton, 51 Ind. 256; Lovell v. Philadelphia, 4 Brews. 133.
    It is well settled that the city authorities hold the streets in trust for the benefit of all the corporators. Hence, in case of a violation of such trust by an excess or abuse of power, or by acts of bad faith by public officers, which would result in injury, courts of equity will interpose, and will not pause to inquire, in cases of breaches of trust, whether the injury is irreparable. Carter v. City of Chicago, 57 Ill. 283; City of Chicago v. Wright, 69 id. 318; Dunham v. Hyde Park, 75 id. 371; Brush v. Carbondale, 78 id. 74; State v. Cincinnati Gas Light Co. 18 Ohio St. 262; Lutterloh v. Mayor, 15 Fla. 306; Methodist Church v. Hoboken, 33 N. J. L. 13.
    So, where grounds are dedicated to public use, the city holds them only for the purposes for which they were dedicated, and can not alienate or divert them to other uses, and if this is attempted an injunction lies to prevent "it. Kreigh v. Chicago, 86 Ill. 410; City of Alton v. Transportation Co. 12 id. 60; City of Quincy v. Jones, 76 id. 231; Jacksonville v. Jacksonville Ry. Co. 67 id. 540; State v. Mayor, 15 Fla. 52; City of Peoria v. Johnston, 56 Ill. 52; Carter v. Chicago, 57 Ill. 288; Sherlock v. Village of Winnetka, 59 id. 398; Milium v. Sharp, 15 Barb. 194; Davis v. Mayor, 1 Duer, 494.
    Complainant’s interest as a corporator and tax-payer is sufficient to sustain its bill on behalf of itself and all other corporators and tax-payers. City of Springfield v. Edwards, 84 Ill. 631; Devine v. Board of Comrs. id. 590; Cotton v. Hanchett, 13 id. 616; Percy v. Kinnear, 42 id. 160; Sherlock v. Winnetka, 59 id. 389; Chestnutwood v. Hood, 68 id. 132;
      Campbell v. Paris and Decatur R. R. Co. 11 id. 612; Prettyman v. Tazewell County, 19 id. 406; New London v. Brainard, 22 Conn. 552; Mayor v. Grill, 31 Md. 375; Newmeyer v. Mo. and Miss. R. R. Co. 52 Mo. 81; Merrell v. Plainfield, 15 N. H. 126; Page v. Allen, 58 Pa. St. 338; Hurd v. Walters, 14 Ind. 148.
    Complainant has an individual interest distinct from that which belongs to every citizen, sufficient to give it a standing in a court of equity. Its lot contributed to the costs and expenses of extending and opening La Salle street, in special assessments made for benefits received. Complainant, as an original promoter of the extension of this street, and as a party who contributed thereto on a basis of benefits, has a special interest in this street, in its whole extent, over and above the public not similarly situated.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We are of opinion that appellee has shown no such special or peculiar injury to its property as entitles it to an injunction, even if it be conceded that the proposed vacation and closing up of a part of La Salle street is illegal.

Appellee’s building and. lot are some three and a half blocks distant from the part of La Salle street proposed to be vacated and closed up. It is not, nor could it reasonably be, claimed that the closing up of this portion of the street in any degree interferes with access to appellee’s lot, or with its use and enjoyment. The streets adjacent to it all remain in the same condition as to. width,, character of. improvements, etc., that they were in before, and it is not pointed out how appellee will be otherwise specially or peculiarly injured by the proposed closing up of the portion of the street in question. The removal of the place of business of the Board of Trade will, doubtless, diminish the number of those desiring to become tenants of appellee; but it is not insisted that appellee has any legal right to control the movements or location of that corporation. Its dissolution, or removal for a like or greater distance to any other locality, would in all probability have the same effect in diminishing the number of those desiring to become appellee’s tenants.

It has never been claimed that adjacent property holders have a right to insist that corporations or individuals shall continue to do a particular business at a given locality, in order that such adjacent property holders may continue to enjoy the incidental benefits resulting from such business, and to so hold would be an end to all improvement.

All persons having to pass from appellee’s property to Van Burén street, or to the depot of the Chicago, Bock Island and Pacific, and. Lake Shore and Michigan Southern railroads, will, if the proposed vacation be effected, have to go a little farther than they otherwise would, and this will be, so far as concerns appellee, the only proximate effect of an illegal permanent obstruction placed in the part of LaSalle street proposed to be vacated. Precisely the same injury will result to every one, wherever located, having to pass that route. They may, to accomplish their journey, have to make an additional turn, and travel a little farther. Is this such an injury as authorizes a private party (one who has no authority, by statute or otherwise, to represent the public,) to have the aid of a court of equity ?

In McDonald v. English, 85 Ill. 236, we said: “We regard the rule as well settled, that for 'any obstruction to streets not resulting in injury to the individual, the public only can complain. Where, however, the obstruction is such that a public prosecution is authorized, and, at the same time, an individual has been specially injured thereby, as well as where the act has been private and an offence against the individual solely, he may maintain an action and recover for his special injury; but in such case the special injury is the gist of the action, and unless it is° alleged and proved, there can be no recovery. ”

In the American Law Register for October, 1880, one of the learned editors of that periodical, Mr. Edmund H. Bennett, in a note to Fritz v. Hobson, after a very elaborate review of the principal cases bearing upon the question now before us, comes, as we think very correctly, to the conclusion : “First, for any act obstructing a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although in a much greater degree than any other person; second, an action will lie for peculiar damages of a different kind, though even in the smallest degree; third, the damages, if really peculiar, need not always be direct and immediate, like the loss of a horse, but may be as remote and consequential as in other cases of tort; fourth, the fact that many others sustain an injury of exactly like kind, is not a bar to individual actions of many cases of a public nuisance. ”

The present case, it will be apparent from what we have already said, falls within the first of these conclusions. The damages -sustained are of the same kind as those sustained by the general public, differing, if at all, only in degree, and this will be found to be amply ■ sustained by the following cases cited by counsel for appellants: Smith v. Boston, 7 Cush. 254; Castle v. Berkshire, 11 Gray, 26; Brightman v. Fairhaven, 7 id. 271; Paul v. Carver, 24 Pa. St. 207; Brady v. Shinkle, 40 Iowa, 576; Barr v. Oskaloosa, 45 id. 275; Ellsworth v. Chickasaw Co. 40 id. 571; Shaubert v. Railroad Co. 21 Minn. 502; Wilder v. De Core, 26 id. 11; Pollak v. Orphan Asylum, 48 Cal. 490; Fearing v. Irwin, 55 N. Y. 486; Jackson v. Jackson, 16 Ohio St. 163; People v. Supervisors, 20 Mich. 95; Riggs v. Detroit, 27 id. 262; Hinchman v. Detroit, 9 id. 103; Transylvania University v. Lexington, 3 B. Mon. 27; Higbee v. Railroad Co. 19 N. J. Eq. 276; Coster v. Mayor, 43 N. Y. 399; Bailey v. Railroad Co. 4 Harr. 389; Delaware and Maryland R. R. Co. v. Stump, 8 Gill & Johns. 479; Kittle v. Fremont, 1 Neb. 329; Sargent v. Railroad Co. 1 Handy, 52; Haynes v. Thomas, 7 Ind. 38; Venard v. Cross, 8 Kan. 248; Railroad Co. v. Combs, 10 Bush, 382; C. B. and U. P. R. R. Co. v. Twine, 23 Kan. 585; Schulte v. U. P. T. Co. 50 Cal. 592; Lansing v. Smith, 8 Cow. 146.

It has been supposed, in argument, that our constitution, in providing that “property shall not be damaged for public use without due compensation, ” necessarily modifies the doctrine of these cases, to some extent. • So far as affects the present question, we are of opinion this supposition is not well founded. In the recent case of Rigney v. The City of Chicago, (ante, p. 64,) we had occasion to consider the effect of this provision of the constitution, in a case in which access to property on one side and from one street was cut off, and we there, among other things, said: “There are certain injuries which are necessarily incident to the ownership of property in towns or cities, which directly impair the value of private _ property, for which the law does not and never has afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street—if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery, it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value; and that by reason of such disturbance ■he has sustained a special damage with respect to his property, in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.

“The English courts, in construing certain statutes providing compensation for injuries occasioned by public improve- , ments, in which the language is substantially the same as that in our present constitution, after a most thorough consideration of the question, lay down substantially the same rule here announced. Chamberlain v. West End R. R. Co. 2 Best & Smith, 605, 110 E. C. L. R. 604, id. 617; Beckett v. Midland Ry. Co. L. R. 1 C. P. 241; on Appeal, 3 C. P. 82; McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508.”

In the McCarthy case, thus approvingly referrred to, Lord Chelmsford, in stating the rule governing, said: “The learned counsel for the respondent proposed the following rule as a guide to the decision of each case: Where, by the construction of works authorized by the legislature, there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation. I think the rule, as thus stated, may be accepted, with this necessary qualification, that where the right which the owner of the house is entitled to exercise, is one which he possesses in common with the public, there must be something peculiar to the right, in its connection with the house, to distinguish it from that which is enjoyed by the rest of the world. ” See 10 Eng. Rep. (Moak’s notes,) 1. See, also, to like effect, Lyon v. Fishmongers’ Co. (1 Appeal Cases, 662,) 17 Eng. Rep. (Moak’s notes,) 51.

Counsel for appellee, however, contend that the principle is well established that powers conferred upon public officers in relation to corporate property, are trusts, and that they hold the public property in trust, and that a court of chancery therefore has jurisdiction to prevent the common council from vacating the street as an inducement to the Board of Trade to remove its place of business, on the application of any tax-payer of the city, and Colton v. Hanchett, 13 Ill. 615, Prettyman v. Supervisors, etc. 19 id. 406, Perry v. Kinnear, 42 id. 160, Chestnutwood v. Hood, 68 id. 132, Campbell v. Paris and Decatur R. R. Co. 71 id. 612, Shaw v. Hill, 67 id. 455, Leitch v. Wentworth, 71 id. 146, Jackson v. Norris, 72 id. 366, Devine v. County Comrs. 84 id. 590, and Mayor of Springfield v. Edwards, 84 id. 626, are cited in support of the proposition. In all of these cases, except Shaw et al. v. Hill, and Jackson ex rel. v. Noms et al., relief was granted upon the ground that an unjust and illegal burden was being imposed upon the tax-payer to the extent of his pro rata part of the tax necessary to satisfy thé demand, the collection of which was sought to be restrained, and so the complainant had a direct personal interest to be protected.

In Shaw et al. v. Hill, the bill was to enjoin the removal of records, pending the contest of an election for the removal of a county seat. It was held, the right to the writ was an incident to the right to file a bill to contest such election, as authorized by section 12 of the “act to provide for the removal of county seats, ” approved March 15, 1872. In Jackson ex rel. v. Norris, it is only necessary to. say the bill was by the State’s attorney, as the representative of the public.

Counsel further contend that it is equally well settled that city authorities hold the streets in trust for the benefit of all the corporators, and, among other cases, refer to Carter v. Chicago, 57 Ill. 283; City of Chicago v. Wright, 69 id. 318; Dunham v. The Village of Hyde Park, 75 id. 371; Brush v. Carbondale, 78 id. 84.

The general expression, in these cases, that the city holds the streets in trust for the benefit of all the corporators, although accurate enough in its application to the facts there involved, is not, as we have shown in Chicago v. Rumsey, 87 Ill. 355, and People ex rel. v. Walsh et al. 96 id. 232, strictly accurate. In the last named case we said: “The city, as the agent or representative of the public, holds the fee for the use of the public,—not the citizens of the city alone, but the entire public,—of which the legislature is the representative. ”

As held in Rigney v. Chicago, supra, property holders bordering upon streets have, as an incident to their ownership of such property, a right of access by way of the streets, which can not be taken away or materially impaired by the city without incurring legal liability to the extent of the ■damages thereby occasioned, and to this extent, perhaps, it may be said there is a special trust (not shown in the present case to have been affected) in favor of adjoining property holders. But' in no other respect do the property owners or citizens of the municipality have a right in the street other or different than that of the public generally.

The point is made, however, that appellee’s property, and other property in the vicinity, on LaSalle street, was specially assessed as benefited by the opening of that part of LaSalle street which it is now proposed to vacate and close, and the owners were compelled to, and did, pay considerable sums of money in consequence thereof, wherefore such owners have a special property in that part of the street. The point is not tenable. No case is referred to where it has been held that the payment of a special assessment gave the party paying, a special property right in the street. If such a right were once recognized, it is impossible to perceive why the principle would not recognize in every tax-payer a special property in the streets to-the extent of the amount paid for opening or improving them, and thus, in effect, hold that the streets are the private property of those' from whom the money was obtained which was paid out for their opening and improvement. Money raised by special assessment, as well as by taxation, becomes the property, of the municipality in trust for the use for which it is raised, and all private ownership in it ceases the moment it goes into the hands of the proper officer. There is certainly a strong natural equity in favor of a party who has been assessed for special benefits, that he should have the use of the streets for which he is thus made to pay, but it has never been deemed advisable to invest him, as a means of protection, with an equitable ownership in so much of the street.

There is, nevertheless, still another view to be considered. Every property holder in the city owes the duty of paying taxes and special assessments, lawfully imposed, for the opening, repairing and improving of streets, and we shall not at present, and for the purpose of the argument, question but that such property holders have an equitable right to have enjoined a breach of trust intended by the municipality, by which their burdens of taxes, or special assessments for the opening, repairing or improving of streets, etc., will be materially increased.

The general doctrine, according to Bispham’s Principles of Equity, (2d ed.) p. 512, is: “A corporation * * * can not be compelled ■ to perform a public duty at the suit of a private individual, without some special right or authority.”

In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured thereby. See Angell on Highways, sec. 284; Bigelow v. The Hartford Bridge Co. 14 Conn. 565; O’Brien v. N. and W. R. R. Co. 17 id. 372; Delaware and Maryland R. R. Co. supra; Paul v. Carver, supra; Sargent v. Railroad Co. supra. Indeed, in a number of the States the courts have expressly denied the right of a private tax-payer to have restrained a threatened illegal municipal act that will result in increased taxation, holding that the only remedy therefor must be sought through those representing the public. Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Roosevelt v. Draper, 23 id. 318; Hale v. Cushman, 6 Metc. 425; Croft v. Jackson County, 5 Kansas, 518; Conklin v. Comrs. 13 Minn. 454; Bogg v. Detroit, 5 Mich. 336; Chaffee v. Granger, 6 id. 51.

It is said by Dillon* in his work on Municipal Corporations, (1st ed.) sec. 136 : “The author may observe that there appears to be no difference of judicial opinion as to the right of the taxable inhabitants, whenever the threatened illegal corporate act will increase the burden of taxation, to invoke the aid of equity to prevent it. The difference is as to the proper party plaintiff in a bill of this character. If the ordinary principle is applied, it must be admitted that where the duty about to be violated by the corporation or its officers is public in its nature, and affects all of the inhabitants alike, one not suffering any special injury can not, in his oion name, or by uniting with others, maintain a bill to enjoin it. * * * But it is agreed that any taxable inhabitant, or, perhaps, any citizen of the municipality, has such an interest to prevent or avoid illegal corporate acts that he may be a relator, on whose application the proper public officer of the commonwealth may, on behalf of the public, filé the requisite bill to enjoin the menaced illegal act, or if it has been consummated, to have relief against it.” * * *

The proofs here show that all parties having property adjoining the part of the street proposed to be vacated, as well as adjoining the parts of the streets proposed to be widened, have given their consent to the proposed vacation and widening, and. it is not shown that any one will be damaged, within the principles laid down in the cases to which we have heretofore referred, in consequence of such vacation and widening, in such way as to fix a legal liability upon the city; nor is it shown how, otherwise, the burdens upon the tax-payer will be materially increased. Neither, therefore, upon the ground that its property is legally affected by the proposed acts, nor that its burdens as a tax-payer will thereby be materially augmented, has the complainant shown a case entitling it to relief.

We think the judgments of the Appellate and circuit courts should be reversed and the bill he dismissed, and the judgment of the Appellate Court will accordingly be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Sheldon took no part.


author: Per Curiam:

text:
    Edward F. Pulsifer v. Elizabeth Winterhoff et al.

      Filed at Ottawa March 28, 1882.

    1. Practice—exception to ruling of the court. In a case coming to this court from the Appellate Court, in which the judgment of the trial court is affirmed, no questions of fact can be considered, and in such case, if the record fails to show any exception to any ruling of law by the court below, as to the admission of evidence, or the instructions, it will be presumed the Appellate Court properly affirmed the judgment.
    2. Appeal—when it lies from Appellate Court. No appeal will lie from the Appellate Court, in affirming a judgment for the defendant for costs, in an action on the casé for obstructing the natural flow of water from the pdaintifFs land.
    Appeal from the Appellate Court for the First' District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. John M. Gartside, for the appellant.
    Messrs. Campbell & Custer, for the appellees.
   Per Curiam:

This is an action on the case, brought by’ Pulsifer against the Winterhoffs, for an alleged obstruction by them of the natural flow of water from his land, by which he alleges the water falling upon his land was prevented from its natural escape over adjoining land. Defendants pleaded the general issue. A trial was had in the Superior ■Court of Cook county, which resulted in a verdict for defendants. A motion for a new trial was overruled, and judgment was entered upon the verdict. Pulsifer appealed to the Appellate Court, where the judgment was affirmed. Pulsifer appeals to this court.

The evidence in the ease as to the facts is elaborately discussed by counsel,' and the law supposed to be applicable to the facts supposed to be shown by the evidence is fully presented in the printed arguments submitted, but on a careful examination of the abstract of the record we fail to find any statement of any ruling of the Superior Court, either as to the competency of evidence, or the law applicable to the case. No exceptions seem to have been taken to any ruling upon any question of law made by the court in the whole progress of the trial.

The determination of the facts by the Appellate Court we can not review, no question of law being presented on which any allegation of error can be founded, the presumption being that the Appellate Court held the law correctly, •unless the error appears of record. The abstract shows that instructions were given, and others refused, by the Superior Court of Cook county, but none of them are set out, nor does it appear that any exceptions were taken to the rulings in that regard.

On looking more closely into the record, we find this case does not fall within any class, of cases in which the statute allows appeals "to this court. The appeal is therefore dismissed, at the costs of appellant.

Appeal dismissed.


text:
    William Ilett et al. v. Thomas F. Collins et al.

      Filed at Ottawa March 28, 1882.

      1. Continuance—requisites of affidavit. An affidavit by the plaintiffs’ attorney, stating, generally, that “plaintiff's can not safely go to trial, for want of material testimony,” giving neither the name nor the residence of any witness, and failing to show the substance of the testimony sought, or any diligence used, or excuse for want of diligence, is wholly inadequate to obtain a continuance.
    2. Assumpsit—when it will lie. Where the purchaser of real estate practices such a fraud on the vendor as will subject him to an action on the case for fraud, and the vendor in apt time claims to rescind the sale on that ground, offering to restore the purchaser to his former condition, by a tender of all that was paid or pledged, and demands a reconveyance of the land, which is refused, the vendor may maintain assumpsit for the price of the land, whether he received bonds of the purchaser in payment or merely as a security.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county.
    This was an action of assumpsit, by Ilett and others, appellants, brought by them in the Superior Court of Cook county, to recover the price of certain real estate, conveyed by them to defendants, appellees. On trial, judgment was rendered for defendants in the action. Plaintiffs appealed to the Appellate Court, where the judgment was affirmed. After the “action was begun, plaintiffs, on affidavit, sued out an attachment in aid of the action. The trial was had on general issue pleaded to the declaration, and upon a plea traversing material statements on which the writ of attachment was issued.
    While the cause was pending, defendants were compelled by the court to produce a written agreement made between plaintiffs and defendants at the time of the sale of the land. To procure the attachment writ, an affidavit of the attorney of plaintiffs was made, stating, in substance, that the price of the property was $10,000, and the sale was on a credit of three months, the purchasers delivering to the vendors certain “gas bonds, ” to the amount of $10,000, face value, and representing that the same were worth more than par, and agreeing to pay the purchase money in three months and take up the bonds, and that a written memorandum was made of the terms of the trade; that plaintiffs soon ascertained that they had been cheated, and found that the gas bonds were not worth twenty-five cents on the dollar; that plaintiffs then tendered the bonds to defendants, and, rescinding the contract, demanded a reconveyance of the land.
    On the production of the written memorandum of the transaction by defendants, under the rule of court supra, it turned out that it declared that the bonds were taken and accepted as payment for the land, reserving to the vendees an option to buy the bonds within ninety days. The production of this memorandum was delayed until the cause was about to he called for trial. On its production, plaintiffs’ attorney at once prepared and presented to the court his own affidavit, saying (as stated in the abstract), “that, from information he received from plaintiffs, he brought suit in assumpsit, hut has just seen the writing between the parties, produced here to-day under order of court; that he is surprised at its contents; that it will defeat the cause of action in assumpsit, hut plaintiffs have good cause of action in case; that he believes plaintiffs can not safely go to trial, for want of material testimony.” On this affidavit plaintiffs asked leave to amend the declaration and change the form of action, and also moved for a continuance. . Each of these motions was overruled by the court, and plaintiffs excepted.

      Mr. Morton Culver, for the plaintiffs in error:
    The paper, when produced under rule of court, was not an agreement to sell. the house and lot, by plaintiffs,' but an option to Collins to buy his bogus stock given for the house and lot. The declaration being in assumpsit, no recovery could be had, and hence a continuance should have been granted to enable the plaintiffs to amend the declaration and proceedings. Hurd’s Stat. 1874, p. 490, sec. 9; p. 778, see. 24; p. 137, sec. 1.
    This court has held that under the statute (Eev. Stat. 1874, p. 777, sec. 22,) abolishing the distinction between trespass and trespass on the case, counts in each of these actions can be joined. Krugg v. Ward, 77 Ill. 603; Barker v. Koozier, 80 id. 206.
    That the rulings of this court upon the statutes allowing amendments, have been and should be liberal in the furtherance of justice, see McCarthy v. New, 91 Ill. 127; Drake v. Drake, 83 id. 528; Sidway v. Marshall, 83 id. 438; Dickson v. Chicago, Burlington and Quincy R. R. Co. 81 id. 218; Litchfield Coal Co. v. Taylor, 81 id. 592; Walsh v. People, 79 id. 523; Healey v. Charnby, 79 id. 592; Challoner v. Niles, 78 id. 78; Thompson v. Sornberger, 78 id. 354; Misch v. McAlpine, 78 id. 508; Teutonia Life Ins. Co. v. Mueller, 77 id. 22; Scheel v. Eidman, 77 id. 301; Kirkpatrick v. Cooper, 77 id. 566; Chicago and Pacific Ry. Co. v. Stein, 75 id. 42; Chester and Tamaroa C. and R. R. Co. v. Lickiss, 72 id. 522.
    Mr. P. McHugh, for the defendants in error:
    The amendment sought was to change entirely the cause of action—to convert a claim for money due on a contract of sale into damages for an alleged tort or wrong. Amendments must be confined to restating the cause of action, and not to make a wholly new and different cause of action. Illinois Central R. R. Co. v. Phelps, 4 Bradw. 238.

      False representations of matters of opinion, such as the value of property or securities, do not constitute fraud. Bigelow on Frauds, 18; Cooley on Torts, 483; Story’s Eq. Jur. sec. 207; Noetling v. Wright, 72 Ill. 390; Tuck v. Downing, 76 id. 71; Ellis v. Andrews, 56 id. 83.
   Mr. Justice Dickey

delivered the opinion of the Court:

No cause for continuance was shown. A general statement that “plaintiffs can not safely go to trial, for want of material testimony, ” is wholly inadequate for such a purpose. Before a party can demand, as a legal right, that a cause shall be continued, he must produce an affidavit, such as is prescribed in the Practice act. The affidavit, as stated in the abstract, gives neither the name nor the - residence of any witness, nor does it state the substance of the testimony sought, nor does it show any diligence used, or any excuse for want of diligence.

As to the application to change the form of action, it would seem to have been entirely unnecessary. If it be true that such a fraud was practiced upon plaintiffs in this sale as would subject defendants to an action on the case for fraud, and if it be true that plaintiffs in apt time claimed to rescind on that ground, and offered to restore defendants to their former condition by a tender of all they had received from them, and demanded the land, and this was refused, it is not perceived why an action of assumpsit would not lie in case the bonds were taken as payment, as well as in a case where they were taken merely as security. Even if this were not so, we can not, from the meagre statement contained in the abstract, say that the refusal to permit the change was an abuse of judicial discretion.

Finding no error apparent, the judgment of the Appellate Court is affirmed.

Judgment affirmed.