author: Mr. Justice Craig Mr. Justice Walker,

text:
    Zimri A. Enos et al. v. The City of Springfield.

      Filed at Springfield

      January 30, 1885.

    1. Local improvements in cities and villages—as to the various modes of assessment—the general Incorporation law construed. The object of the legislature, by sections 116 and 132, chapter 24, article 9, relating to cities and villages, was to provide two modes for making local improvements,—one by special assessments, and the other by special taxation of contiguous property,—and to authorize the corporate authorities of cities and villages to determine by ordinance which mode should be adopted.
    2. Section 132, of article 9, chapter 24, of the Bevised Statutes of 1874, when considered in connection with the constitution, on the same subject, and the other sections of the same article, is not to receive a literal construction. These various provisions, when so considered, show that two distinct systems of local improvements are provided for, and section 132 is to be understood as requiring only such portions of the statute in regard to special assessments to be.followed as may be consistent with special taxation.
    3. Section 139 of the same article, which provides for ascertaining benefits in special assessment proceedings, has no bearing whatever in a proceeding by special taxation.
    4. Same—special taxation—in proportion to frontage. In case the council adopts special taxation as the mode in which a street improvement shall be made, it has the power to require that the cost of the same shall be assessed upon the lots abutting upon the streets in proportion to the frontage of the lots upon the same.
    5. Same—curbing—as part of a street pavement. It is no valid objection to an ordinance for the paving of a street by special taxation, that it provides also for a curb-stone on each side of the street to be included in the estimate of the expense of the improvement ordered, as such curbing may be regarded as a part of the pavement.
    6. Same—publication of ordinance for street improvements. An ordinance of a city for the paving and curbing of a public street, and for levying special taxes on contiguous property to pay the cost of the improvement, is not required to be published. It is only ordinances appropriating money that are required to be published.
    7. Same—of the costs—as part of the assessment. The costs of making and levying the assessment of contiguous property by special taxation for the curbing and paving of a street by a city, may properly, under the law, be taxed against the lots and lands abutting upon such street and included in the special tax.
    8. Same—practice—demurring to objections to confirmation. There is no rule of practice which authorizes a demurrer to be filed to objections to the confirmation of an assessment for special taxation upon contiguous property for a local improvement, and if one is filed it can not be- treated as an admission of the truth of each objection. It is incumbent on the party filing sucli objections to-prove them.
    Writ of Error to the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.
    Messrs. McClernand & Keyes, and Messrs. Palmers, Robinson & Shutt, for the plaintiffs in error:
    The city is authorized to make the assessment only under article 9, chapter 24, of the Revised Statutes, and was required to strictly pursue the powers therein given. Webster v. People, 98 Ill. 343; Cooley on Taxation, 418.
    Sections 17 and 18 of that chapter, (Rev. Stat. 1881,) required that the special taxes should be levied, assessed, etc., in the way provided for levying, etc., special assessments, which prohibits the levy of any greater sum on any lot than it shall be benefited. Sec. 24, chap. 24, Rev. Stat. 1881.
    The city, by section 6 of the ordinance, ascertained for itself what proportion of the total cost of the improvement would be of benefit to the public, and what on the abutting lots, instead of leaving this to the commissioners.
    The demurrer to the objections admits that the improvement and property on Jefferson 'street are hot contiguous to the improvement and property on Washington street, and the same is true in respect to other streets and alleys.
    The imposition of the cost according to the frontage of the lots is unjust, unreasonable and oppressive, and as to some lots amounts to confiscation. The ordinance must be reasonable, and not unfair or oppressive. Craw v. Tolono, 96 Ill. 259.
    The paving of the streets, and fencing the same with a curbing stone for the sidewalks on either side thereof, are separate and distinct improvements, and can not be united in one proceeding. Weclder v. Chicago, 61 Ill. 142.
    No power is conferred upon cities and villages to make local improvements by special taxation, and assess the cost of the same on the lots abutting the street in proportion to their frontage, except by the act of 1875, and that is confined to sidewalks. Taxing by frontage to pave a street is illegal. Cooley on Taxation, 453.
    The plaintiffs have been taxed with the costs of levying, assessing and collecting the assessment, which we think is error. Trustees v. Chicago, 12 Ill. 403; Morris v. Chicago, 11 id. 650.
    The ordinance under which the assessments were made was not published. All ordinances making any appropriation must be published. Eev. Stat. 1878, chap. 24, art. 5, sec. 64.
    The defendant’s general demurrer admits in law the truth of this fact, and of all other facts well pleaded. 1 Ghitty’s Pleading, (12th Am. ed.) 661, 662; Compiler v. People, 12 Ill. 290; Nespel v. Laparde, 74 id. 376; People v. Holden, 82 id. 93.
    • The charter treats all special assessments of property for any city improvement as per se an appropriation. Eev. Stat. 1878, chap. 24, art. 7, sees. 98, 99.
    Messrs. Stuart, Edwards & Brown, for the defendant in error:
    Special taxation is based upon the supposed benefit to contiguous property, and differs from special assessments only in the mode of ascertaining the benefits. White v. People, 94 Ill. 607; Craw v. Tolono, 96 id. 256.
    The statute must be construed with reference to the constitution, and so much of the provisions of section 17, chapter 24, of the Eevised Statutes, as provides that special taxation “shall be levied,” etc., “in the way provided in the sections of this act providing for the mode of making, levying,” etc., of “ special assessments, ” is to be construed as to embrace so much of such provisions relating to" special assessments as is consistent with the exercise of the grant of power to provide for special taxation.
    The practice does not justify the filing of a demurrer to objections, and the demurrer, if appropriate, would admit • only such facts as are well pleaded. All the objections resolve themselves into one—that the special tax can not be laid in proportion to frontage.
    The publication of the ordinance was unnecessary. Mix v. People, 106 Ill. 431; Port Byron v. Blount, 97 id. 65.
    In relation to the uniting more than one improvement, Weckler v. Chicago, 61 Ill. 145, has no application.
    The paving and the curbing constitute but one improvement. Ricketts v. Village of Hyde Park, 85 Ill. 112.
    Upon general principles, if the city council had power to select the mode of frontage as a basis for the special taxation, then the machinery which they use to carry out this object is part of the mode, and over it this court has no jurisdiction.
    The right to confer this power by general law, and the fact that it has been so conferred by the ninth article of chapter 24, has been expressly decided by this court. Falch v. People, 99 Ill. 140. See, also, Lake v. City of Decatur, 91 Ill. 596; People v. Cooper, 83 id. 585.
    The power of the city to levy this tax according to frontage is settled. White v. People, 94 Ill. 607; Craw v. Tolono, 96 id. 256.
    It is insisted that these decisions are only applicable in case of sidewalk improvements. The power is given in relation to any local improvement, including sidewalks, with a proviso as to sidewalks, giving the owner fifteen days to build or renew the sidewalk, and thus avoid the assessment. (Sec. 134, chap. 24, Rev. Stat.) The sidewalk is only a part of the street. Gridley v. Bloomington, 88 Ill. 556.
    The right to include costs in the assessment is specially allowed by section 135, chapter 24, of the Revised Statutes.
   Mr. Justice Craig

delivered the opinion of the Court:

This is a writ of error to reverse a judgment of the county court of Sangamon county, confirming a special tax assessed by three commissioners, for the purpose of improving certain streets in Springfield. Upon the return of the assessment roll, plaintiffs in error appeared in the county court and filed numerous objections, all of which were overruled.

It is impossible to tell from the abstract filed in this case, the nature of the action or the character of the judgment,— indeed, it contains nothing from which an intelligent conclusion can be reached as to a proper decision of the case. Upon an examination, however, of the record, it appears that the city council of Springfield, on the 23d day of April, 1883, passed an ordinance providing that certain streets in the city should be paved; that the cost of the improvement, except the street and alley intersections and crossings, should be paid by special taxation upon property touching or abutting on either side of said streets, in proportion to the frontage thereof upon the streets. The city council, by the ordinance, appointed three commissioners to make an estimate of the cost of the improvement. These commissioners, on the 7th day of May, 1883, made a. report of the estimate of the cost of the improvement, which was duly approved by the city council. A petition was then filed in the county court, which contained a copy of the ordinance, and also a copy of the report of the commissioners showing the cost of the proposed improvement, and prayed that the cost of the improvement might be assessed in the manner provided by law. The court, upon an examination of the petition, ordinance and report of the estimated cost, appointed three commissioners to assess the cost of the improvement by special taxation. The commissioners, under the order, proceeded and assessed a special tax, equal in amount to the cost of the improvement, upon the lots and lands abutting on either side of the streets, in proportion to the frontage of said lots and lands upon the streets. The assessment roll was returned to the court, and upon the hearing all the objections interposed were overruled, and the assessment as made and returned was confirmed.

Numerous objections were filed in the county court to the proceeding, but we do not understand that all of them are relied upon here,—indeed, but a few of them have been urged on the - argument, and they will be considered.

Section 132, chapter 24, of article 9, of the Be vised Statutes of 1874, page 234, provides: “When said ordinance under which said local improvement shall be ordered, shall provide that such improvement shall be made by special taxation of contiguous property, the same shall be levied, ■assessed and collected in the way provided in the sections of this act providing for the mode of making, levying, assessing and collecting special assessments.” Now, it is urged that the assessment was not made in conformity with the mode of making, levying and assessing special assessments, and hence its illegality. Section 116 of the same statute provides: “That the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall by ordinance prescribe.” It is plain if the mode of procedure is to be the same where the city proceeds by special taxation as it is where the city authorities proceed by special assessment, that part of the statute which confers the power to resort to special taxation is rendered nugatory, and can have no force or effect whatever in the statute. This certainly was never contemplated. But the object of the legislature was to provide two modes,—one by special assessment, the other by special taxation of contiguous property,;— and the corporate authorities óf the city or village might determine by ordinance which mode should be adopted. The language of section 132 is not to receive a literal construction, but in determining its object and meaning it must be considered in connection with the constitution, which authorizes the General Assembly to vest corporate authorities of cities, towns and villages with power to make local improvements by special assessments or by special taxation of contiguous property, and also in connection with the other sections of article 9, of chapter 24; and when so considered, in view of the fact that the two distinct systems have been provided for, it is manifest that section 132 is to be understood as requiring only such portions of the statute in regard to special assessments to be followed as may be consistent with a proper exercise of the power of special taxation.

Section 139, which provides for ascertaining benefits on special assessment proceedings, has no bearing whatever in a proceeding by special taxation. “Special taxation, as spoken of in the constitution, is based upon the supposed benefit to the contiguous property, and differs from special assessment only in the mode of ascertaining the benefits. In special taxation the imposition of the tax is of itself a determination that the benefits to the contiguous property will be as great as the burden imposed, while in the case of. special assessments the property to be benefited must be ascertained by a careful investigation, and the burdens distributed according to carefully ascertained proportion, in which each part will be beneficially affected.” Craw v. Village of Tolono, 96 Ill. 256. See, also, White v. The People, 94 Ill. 607, where it is said: “The objection that the special tax here exceeds the benefits to the lot, implies that the only mode of making the improvement is by special assessment, whereas the broad power is given under the constitution to make it either by special assessment, or by special taxation of contiguous property, or otherwise. * * ■ * This proceeding is in the special taxation of contiguous property; and in the adoption of that mode there is no requirement of benefits received, and no respect thereto further than may be had by the city council in determining upon which particular one of the several modes of special taxation of contiguous property open to them shall be resorted to.” Here the ordinance was passed providing for the improvement, and that it should be made by special taxation, and, as required by section 135, three persons were appointed to make an estimate of the cost of the improvement. Upon receiving and approving the report, the city council, as required by section 136, ordered a petition to be filed in the county court that the cost of the improvement might be assessed.' The petition was filed as required by section 137, and the court appointed three commissioners, •who made the assessment, and returned an assessment roll, which, so far as we are able to perceive, conforms to the requirements of the law.

The third section of the ordinance provided, in substance, that a stone curbing should be provided on each side of the pavement laid on the street, and it is contended that the paving of the streets and furnishing the stone curbing are separate and distinct improvements, which can not be united in one proceeding, and is condemned by Weckler v. City of Chicago, 61 Ill. 145. We do not think the case cited has any bearing here. It is manifest that the paving and curbing constitute but one improvement. The curbing is placed at the side of the pavement for its support, and may be regarded as a part of the pavement.

Objection is also made to the proceedings because the cost of the improvement, under the terms of the ordinance, was assessed upon the lots abutting upon the streets in proportion to the frontage of the lots upon the streets. Section 9, of article 9, of our constitution, provides: “The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, or by special taxation of contiguous property, or otherwise.” In pursuance of this provision of the constitution the legislature adopted article 9, of chapter 24, the first section^ of which declares: “That the corporate authorities of cities and villages are hereby vested with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they shall, by ordinance, prescribe.” The constitution and the section of the statute are silent on the point as to manner of the assessment,—whether it shall be in proportion of the frontage of the lot, or otherwise. But power is conferred on the city to make the assessment, and it is a matter within the discretion of the corporate authorities to determine for themselves, and any mode they may adopt to carry out the power conferred will be sustained,' so long as they do not violate the constitution or the statute. In White v. The People, 94 Ill. 607, where a special tax was assessed according to frontage, it is said: “Whether or not the special tax exceeds the actual benefit to the lot is not material. It may be supposed to be based on a presumed equivalent. The city council have determined the frontage to be the proper measure of probable benefits. That is generally considered as a very reasonable measure of benefits in the ease of such an improvement, and if it does not in fact, in the present case, represent the actual benefits, it is enough that the city council have deemed it the proper rule to apply. ” It is true that this decision was made under a proceeding which arose under the act of 1875, in relation to sidewalks, which expressly authorizes an assessment per frontage, but we do not regard that as important.

Complaint is also made that plaintiffs in error have been taxed with the costs of making and levying the assessment. This is authorized by section 135 of the act under which the proceedings were had.

Another objection interposed to the proceedings is, that the ordinance under which the assessment was made was not published. The charter of the city requires all ordinances appropriating money to be published. ’ In Mix v. The People, 106 Ill. 426, we held' that an ordinance levying the city tax was not required to be published, but only ordinances making appropriations of money. This case is conclusive of the question raised.

To the various objections which were filed to the assessment a demurrer was interposed and sustained, and it has been taken for granted in the argument that the demurrer admitted the truth of each objection so filed. We are aware of no statute or well settled practice which authorizes a demurrer tó be filed in such a case. Where objections are filed in such a case it is incumbent on the party filing them to' sustain them by proof, unless they appear on the record. We are not inclined to sustain a practice which will admit the truth of every objection which may be filed, however" frivolous, although a demurrer may be interposed to the objection.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Walker,

dissenting:

There is perhaps no more indefinite term in the English language than the words “local improvements. ” I can imagine no improvement, public or private, that is not in some sense local. It is made, in a particular locality, and is therefore local. But the term can not have been used in that sense in the nintti.' section of article 9 of the constitution. It would be unreasonable to hold it was used in this broad and unrestricted sense, and would be liable to great if not ruinous abuse. Had the constitution simply created the legislature, and vested it, as was done by the fourth article, with legislative power, it could. have levied or. authorized the levy of taxes to any extent, for any purpose, and in any manner it might choose. The whole of that article is a limitation on the exercise of the taxing power. It is in all liberal and constitutional governments a legislative function, and our constitution limits or 'restrains the manner of its exercise. That instrument limits the power to the value of the property taxed, and not only so, but imperatively demands that it shall be imposed by a uniform rate, upon an ascertained value. It also provides for uniformity of burthen when taxes are imposed on business, professions, occupations, franchises, persons and corporations. It leaves the legislature free to adopt such manner as it may choose in imposing such taxes, but requires in terms that it shall be by general law, and shall be uniform as to the class upon which it shall operate. It is also provided that “the General Assembly shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for State purposes; nor shall commutation for such taxes be authorized in any form whatever. ” This, like the previous provisions, was intended to enforce equality and uniformity of burthen upon the tax-payers. In the same spirit and for the same purpose it is provided by the ninth and tenth sections of that article, that municipal taxes shall be uniform as to persons and property within the corporate limits.

It is thus seen that the great central and controlling idea of the constitution is, in levying taxes, that there shall be equality and uniformity in their imposition and burthen. That purpose pervades the entire article, and is too plain to be misunderstood, and I presume none will question its truth. This being true, every rule of construction requires that it should be kept in view in construing every clause or provision of that article. That principle is the touchstone by which every clause of the article must be tried, and to which the various provisions should conform.

What, then,- in the constitutional sense, is a local improvement? We have seen that it is not such an improvement because it is made at a particular place. Improvements are private or -public, and public improvements may be divided into such as affect or benefit the general public, and local, such as affect or benefit the local public or a small number of persons of the local public. An improvement that is or may be used by the entire public, or is designed to and does accommodate the whole community, is a public improvement that may be denominated as general, as contradistinguished from a local improvement, A local improvement, in the sense of the constitution, is one in which there is no intention to accommodate or benefit the general public, but to benefit a few individuals of the local public. Such an im- ■ provement is not private, but is quasi public.

The question then arises, was the improvement of these streets, by laying cedar-block pavements therein, and costly dressed stone sidewalks, a local improvement ? I think not. The streets are public highways, constructed and maintained for the use of the general public,—for all citizens, strangers or aliens, who may desire to use or travel over them. This is the primary purpose of their construction. They are open and free to all persons, and I am at a loss to imagine any improvement more general and public than common highways in counties and streets in cities. They do not have a single element of private or local use beyond all other public improvements conceded by all to be general in their character.

Again, the term “local improvements, ” being uncertain in its meaning and as to what it shall be applied, and as it pertains to the exercise of legislative power to levy or authorize to be levied a tax, it is a function of the legislature to construe its meaning, and apply the power to such improvements as it. shall declare local. In the exercise of this power the General Assembly has declared the making or repairing sidewalks on streets is a local improvement, within the meaning of that section of the constitution, but has not declared that the paving of streets or other public highways is a local improvement. The court, in such cases as this, has no power to say that such improvements are local, and that the power may be exercised, under the constitution, without legislation. The first clause of section 9, of article 9, provides that the General Assembly may vest the power in the corporations named, to make local improvements by special taxation of contiguous property. This clause does not invest such bodies with the power, but authorizes the legislature to confer the power. These bodies can not so act until so empowered, and no power has been conferred to pave streets or highways, and the attempt to exercise the power is unauthorized, and the action is void, and the city is not liable. The constitution has not authorized the courts to say what are local improvements, nor to confer the power on municipalities. It provides that the General Assembly may confer the power, not that such bodies may exercise the power. The General Assembly, in conferring the power to so make sidewalks, withheld the power to make or pave streets in that manner. To hold that the term “sidewalks” embraces streets, would be a perversion of terms and violation of every rule of interpretation. To hold that the law empowers cities, towns and villages to so make streets, is to enact another provision to embrace streets. It is not construction, but it is enactment, and an encroachment upon legislative functions.

Nor can there be the slightest pretence that the power to make local improvements by special taxation is conferred by the seventh clause of section 62 of the general law for the incorporation of cities, towns and-villages. It authorizes such municipalities “to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same. ” This provision manifestly empowers these bodies to make such improvements in the usual manner, and not by resort to extraordinary means or by the employment of extraordinary powers. It simply confers the usual corporate powers, but not by the arbitrary and unjust burthen of taxing ' the few for the benefit of the many,—provisions to prevent which pervade the entire ninth article of the constitution. If streets may be paved in this manner, then all the enumerated improvements of this clause may be for the same reason and by the same construction embraced. If it confers power to do one thing in that mode, it does for all the enumerated objects. No person can, with the slightest pretence of reason, claim that all these objects may be so constructed or repaired. The only power ever conferred1 by the General Assembly, so far as I can find, to make such improvements, is by the act of April 15, 1875. (Sess. Laws, p. 63.) That act provides that sidewalks may be constructed by special taxation on contiguous property. The act provides in detail for levying and collecting the tax and making the improvement, but the paving of streets is not named or authorized in that manner. The fact that streets are not provided for, is strong evidence that the General Assembly did not intend, to confer the power to improve streets in that mode; and -when it is remembered that, under the constitution, cities, etc., can not exercise the power until it is conferred by the General Assembly, it is apparent the city was destitute of all power to adopt and enforce this ordinance, and it and all liability under it must fail.

There is another view of the case, even if the act of 1875 did authorize the ordinance, that is equally fatal to the proceeding. There are in the act several modes of levying the tax on contiguous property, for making local improvements. One is, to apportion the cost on contiguous property according to its assessed value for taxation, previously made. This would be in harmony with the central and controlling purpose of the framers of the ninth section of the ninth article. Another mode provided is, to assess the cost of the improvement, or any portion thereof, on the lot in front of which the improvement is made, or a pro rata portion thereof. And still another way is, to tax the cost on the adjoining lots according to their frontage. These last modes manifestly are opposed to the spirit, if not the' letter, of that entire article of the fundamental law. In modern times the word “taxation” has come to mean, unless otherwise restricted, a certain rate or per cent levied on the value of property ascertained for the purpose of its imposition. To hold that a tax may be levied on property without regard to value, is arbitrary, unequal, and highly unjust. If a tax may be thus imposed for paving-streets, it may, for the same reason and on the same principle, be imposed on adjacent property to build a ward school house, a city prison, a market house, a fire engine house, bridges, and other structures, no matter how costly or how ruinous to property holders. On the same reasoning the city might construct a sewer through the entire length of the city, costing hundreds of thousands of dollars, and impose the burthen on contiguous property, to its entire confiscation.

All these improvements are less general in their character than the streets of a city, and partake more of the nature of local improvements than streets.

In the case at bar, from the extent of the improvements we have a right to suppose- the lots in front of which the pavement is made are of unequal value. Doubtless, some of the same frontage and dimensions, owing to their proximity to the business portion of the city, their improvement, location, and other causes, are worth double, treble or quadruple that of others. This being true, one owner will be compelled to pay double, treble or quadruple more than another on the value of his property, for the construction of an improvement that is not local, in the constitutional sense, but is in every sense general and public. I, for these and other reasons that might be specified, am unable to concur in the opinion of the majority of the court.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Clara H. Bangs et al. v. John J. Brown et al.

      Filed at Ottawa

      January 22, 1885.

    1. Partition—allowance for board and care of the common ancestor, as against the other heirs. The owner of a lot of ground conveyed the same, in 1854, by his deed, directly to his wife, and died in the same year. His heirs never questioned the conveyance during their mother’s lifetime. She died in 1881. Prior to her death one of her daughters and her husband occupied the residence on the premises, and continued such occupancy until after the mother’s death. A bill for partition by the other heirs against such daughter sought to have her interest charged with the rents of the premises, and she filed a cross-bill asking for compensation for boarding, nursing and taking care of her mother, and that it be made a charge on the lot as against the other heirs. The proof showed that the rent of the dwelling house was a fair compensation for the board and care of the mother, and the court, in addition to the rent of the premises, allowed the daughter $100 for extra care of the mother in her sickness: Held, that the decree was reasonable and fair.
    2. Same—as to rents received by one holding under the owner of equitable title. Where a husband, in 1854, shortly before his death conveyed certain lots directly to his wife, which conveyance, although void at law, was never assailed or sought to be set aside by any of the heirs, and the widow, in 1865, let one of the heirs (her son) into possession of one of the lots, who continued to hold such possession and collect and receive the rents until in 1879, when he acquired the entire interest in the same, it was held, on bill for the partition of another lot after the death of the widow, in 1881, that the widow was entitled to the rents of the first named lot, and might give them to whom she pleased, and that the son so receiving such rents was not legally chargeable with them in the partition suit as to the other lot. ¡

    3. Conveyance from husband to wife—ripening into an equitable title by acquiescence. Although a déed of land made by a husband in 1854, just before his death, to his wife, is void at law, yet if all the heirs acquiesce in such conveyance during the grantee’s lifetime, and take no steps to have it set aside, it may be regarded and allowed to stand as an equitable disposition of the property, and the widow will be entitled to receive the rents and profits, and dispose of them as she chooses.
    Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

      Mr. M. Millard, for the plaintiffs in error:
    At common law a deed from a husband to his wife for all his property is void, even in equity. Beard v. Beard, 3 Atk. 72; 2 Story’s Eq. Jur. 1374; Shepard v. Shepard, 4 Johns. Ch. 57; Coates v. .Gerlach, 44 Pa. 43; Fowler v. Trebein, 16 Ohio St. 493; Wells v. Wells, 35 Miss. 665; Crookev. Crooks, 34 Ohio St. 610; Whitcomb v. Sutherland, 18 Ill. 578; Manny v. Rixford, 44 id. 129; Newman v. Willets, 48 id. 545; Pike v. Baker, 51 id. 164.
    Equity will only sustain a deed from husband to wife when it appears to do otherwise would work an injustice. Dale v. Lincoln, 62 Ill. 23.
    Before a court will maintain a deed from husband to wife, equity must be manifest. Loomis v. Brush, 36 Mich. 45; Aultman v. Obermeyer, 6 Neb. 260; Schouler on Husband and Wife, sec. 397.
    Sarah Brown, as widow of John Brown, held this land as a homestead, and neither her dower nor homestead had ever been assigned. Musham v. Musham, 87 Ill. 80.
    She had the right to the possession until her dower and homestead were set off. Trask v. Baxter, 48 Ill. 407.
    Her possession was not adverse. The heirs had no right to immediate possession until the dower was assigned. Higgins v. Crosby, 40 Ill. 261.
    When equity acquires jurisdiction of an estate, it will not compel a resort to a probate court, where the circumstances are of such a nature that equity can be best subserved in the equitable form. Vansycle v. Richardson, 13 Ill. 171; Freeland v. Dazey, 25 id. 266; Townsend v. Radcliffe, 44 id. 446; Heustis v. Johnston, 84 id. 61.
    Where one tenant in common appropriates the entire property to his own use, the other tenants may have an accounting. (Chambers v. Jones, 72 Ill. 276.) And then accounting falls under the same principle as trustees. Story’s Eq. Jur. secs. 465, 466.

      Clara H. Bangs ought to have been allowed the value of her services for over three years in earing for her mother at her request, and with the assent of the other heirs. The law will imply a promise to pay what the services are reasonably worth. Bradbury v. Helms, 92 Ill. 35.
    When two persons are subject to a common burden, it shall be borne equally between them. Golsen v. Brand, 75 Ill. 145.
    Messrs. Hutchinson & Partridge, for the defendants in error:
    That a court of equity will and does sustain conveyances from husband to wife without a trustee, when made upon meritorious grounds, see Wallingford v. Allen, 10 Pet. 594; News v. News, 21 Eng. L. & Eq. 556; Stanning v. Hyle, 3 P. Wms. 334; Shepard v. Shepard, 7 Johns. Ch. 57; Lucas v. Lucas, 1 Atk. 269; Putnam v. Bicknell, 18 Wis. 338; Jones v. Obensham, 10 Gratt. 259; 2 Story’s Eq. Jur. sec. 1.
    The provision being a reasonable one for the maintenance of the wife, will be upheld. Moritz v. Hoffman, 35 Ill. 557; Bridgford v. Riddell, 55 id. 262; Hunt v. Johnson, 44 N. Y. 27; Dale v. Lincoln, 62 Ill. 22; Majors v. Everton, 89 id. 56.
    If the deed from John Brown to Sarah Brown is sustained in equity, then Sarah Brown could convey an equitable title to John J. Brown, and he succeeded to the right to take the rents.
    We also say that Clara H. Bangs, by her laches, is estopped from setting up any claim to the rents received by John J. Brown.
    Clara H. Bangs has no claim upon the other heirs for boarding Sarah Brown. The evidence shows clearly that when she moved into the house she did so with the intention to board her for the rent of the house. If there was no such agreement, and the rents, together with the $100 allowed by the court, was a fair compensation, there was no error in the decree below.
   Mr. Justice Scott

delivered the opinion of the Court :

The original bill in this ease was brought for the partition of a tract of land, described as lot 2, among the heirs of Sarah Brown, deceased. It seems to be admitted the land to be divided originally belonged to John Brown. Before his death, which occurred in 1854, he deeded it, with other lands, to his wife, Sarah Brown, in whose name the title stood until her death, which occurred in 1881. Whether the title to the property described in the bill belonged to the heirs of Sarah Brown or John Brown is a matter of no consequence, as they are the identical same persons. It appears all the heirs of both Sarah Brown and John Brown were made complainants, except one daughter, Clara H. Bangs, who, with her husband, Isaac W. Bangs, was made defendant. Prior to and since the death of Sarah Brown, Clara H. Bangs and her husband have resided on the premises, and complainants claim they are entitled to rents from them since the death of the common ancestor, and that in the partition to be made, these rents be adjusted, and the interest of Clara H. Bangs charged with the same, which was done by the decree rendered.

The principal controversy is as to the validity of the deed of John Brown to his wife, Sarah, which was made November 15, 1854. That question is made on the answer of defendants, and upon a cross-bill filed by them. In 1866 Sarah Brown conveyed to her son, John J. Brown, a part of the land conveyed to her-by her husband, and which was subsequently platted as lot 7. The cross-bill charges, that as the deed from John Brown to his wife, Sarah Brown, was void at; law, John J. Brown took nothing by the deed from his mother, and that the title to lot 7 remained in the heirs of John Brown up to 1879, when a partition of all the estate except lot 2, now involved, was made between the heirs by mutual conveyances, and by which it is conceded John J. Brown obtained the title to lot 7. It also appears that John J. Brown was in possession of what is described as lot 7, since 1865 or 1866, and received the rents for the same, amounting in the aggregate to quite a large sum, and Clara H. Bangs, in her cross-bill, claims he should be compelled to account to her for a share of the rents of lot 7, as one of the heirs, up to 1879, when the partial partition was made among the heirs. Prior to her death Sarah Brown lived with Clara H. Bangs and her husband in the house on lot 2, and by her cross-bill she alleges she boarded her mother, and gave her that kind and affectionate care for her comfort which a person so old and infirm as she was, so much needed, and asked that she be allowed a reasonable compensation therefor, and that it be made a charge on the lot to be partitioned, against the other heirs. The master, by his report, found the rent of the premises occupied by Clara H. Bangs and her husband was a fair compensation for the board, and so disallowed the claim for board and care of her mother, except as to the sum of $100, which was allowed for extra care during her sickness. The master’s report was approved, and the decree of the court is based upon it.

The testimony contained in this record has been carefully , examined, and no reason is perceived for setting aside the decree of the court. It is satisfactorily proven the rent of the dwelling house in which complainants in the cross-bill resided, was a fair compensation for the board and care of their mother. In addition to the rent of the premises they were allowed $100 for extra care in the sickness of Mrs. Brown, which, from the evidence, would seem to be a reasonable compensation, and to leave no ground for complaint on that score.

But the point most strongly pressed on the attention of the court is, that John J. Brown should have been compelled to account to complainant in the cross-bill, Clara H. Bangs, for a share of the rents of lot 7, from the time he entered into possession of it, under the pretended deed from his mother, up to the time of the partition that was made in 1879. "Whatever equitable considerations there may be in support of this claim, no legal ground is perceived on which it can be maintained. It is conceded the deed made by John Brown to his wife, Sarah Brown, in 1854, just prior to his death, was void at law, and whether it could be maintained in equity it will not now be necessary to decide. All the heirs acquiesced in the making of the deed by John Brown to Sarah Brown,—at least no steps were ever taken to set it aside, or to have it declared void. Unless assailed by parties in interest, it would ■ stand as an equitable disposition of the property. So long as the title to the property remained in Mrs. Brown, under the deed, it is clear she would be entitled to rents and all income from it as her individual property, subject to her own disposal. She could do as she pleased with the rent, and could bestow the same upon whom she pleased. She chose to give the rents that would come to her from lot 7, to her son, John J. Brown. She might have given such rents to any other one of her children, or divided the same equally among them all, or kept the same to her own use. The income from the property became absolutely her own so long as the heirs permitted the deed to stand, whether it was valid in equity or not. It is wholly immaterial whether she first collected the rent for lot 7, and then gave the same to her son, or gave the lot, by deed or otherwise, to him, that he might collect the same to his own use. It matters little how it was,—the result is the same in the end. This view of the case renders it unnecessary to discuss a number of questions raised on the record that have been elaborately argued by counsel.

The decree of the court below will be affirmed.

Decree affirmed,


author: Mr. Chief Justice Scholfield

text:
    James Chalcraft v. Louisville, Evansville and St. Louis Railroad Company.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Appeal—as to amount involved—whether applicable to suit for an injunction. A bill for an injunction only, not being a suit to recover money or chattels, is not affected by the statute limiting appeals and writs of error in certain cases to $1000, and an appeal lies from the final judgment of the Appellate Court, in such case, to this court, without regard to the magnitude of the interests involved.
    2. Bailroad—farm crossings—duty in respect thereto—securing the public safety. The word “necessary,” in the statute requiring railroad corporations to construct farm crossings “when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad,” was used in its more popular sense, and is equivalent to the words, “reasonably convenient. ”
    3. "Where the erection and maintenance of a proposed farm crossing over a railroad track will directly affect the operation of the road as a means of public transportation, by seriously tending to increase the danger of collisions, this will be a sufficient reason why such crossing should not be made, and if attempted to be made by the land owner, he may be restrained from doing so, by injunction.
    4. Eminent domain—measure of damages—farm crossings. In the condemnation of land for a right of way for a railroad across a farm, the necessities and conveniences of location for farm crossings should be taken into consideration, and after the condemnation they will be presumed to have been considered, and that damages were estimated upon the hypothesis that a farm crossing would not be constructed and maintained at any particular point where it would directly and seriously affect the safe and efficient operation of the road.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Edwards county; the Hon. C. S. Conger, Judge, presiding.
    This was a bill in equity, to enjoin the construction of a bridge for a farm crossing over a railroad track. The track of the road of defendant in error runs across the land of plaintiff in error, cutting off from the main body, the barn, stock-sheds, cribs, etc., and a tract of wood land. The length of the railroad track through the land of plaintiff in error is twenty-three hundred feet, and there are over that part of the road, within convenient distances, two public crossings, five private or farm crossings for vehicles and cattle, and two foot crossings. But plaintiff in error claims these do not sufficiently accommodate him, and having notified the railroad company to erect a bridge for him at a point indicated, and the company having refused, he was proceeding to erect it himself, when enjoined by this proceeding. The Appellate Court rendered a decree reversing that of the circuit court, and making the injunction perpetual.
    Mr. J. M. Campbell, and Mr. William F. Foster, for the plaintiff in error.
    Mr. J. H. Strawn, and Mr. C. H. Patton, for the defendant in error.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The motion to dismiss for want of jurisdiction to entertain this writ of error, must be overruled. This is not a suit to recover money or chattels, and is not, therefore, affected by the statute limiting appeals and writs of error to $1000, and the writ hence lies, without regard to the magnitude of the interests involved. Baber v. Railroad Co. 93 Ill. 342.

The statute provides that “every railroad corporation shall * * * erect and maintain fences on both sides of its road, * * * with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad, ” and authorizes the owner or occupant to "do so if the railroad company, after notice, shall refuse. If the word “necessary,” in this connection, should, according to its primary meaning, be considered as the equivalent of “indispensable” or “inevitable,” it is quite clear the ruling of the Appellate Court is right, for the evidence shows that plaintiff in error can use all of his farm, and lands, and barns, and other buildings, etc., with the farm crossings that he already has, though probably not with the same facility and convenience that he could with the aid of this proposed crossing. Using the word, however, as we think we should, in its more popular sense, as equivalent to “reasonably convenient,” and relying on the mere opinions of witnesses, without regard to the facts proved, as to whether the proposed crossing is, in that sense, “necessary,” we should, doubtless, feel inclined to affirm the ruling of the circuit judge, since the number of witnesses expressing opinions in favor of the plaintiff in error is as great as that expressing ojñnions in favor of the defendant in error, and he had the advantage of seeing and hearing them testify. But the mere opinions of witnesses as to the necessity of this farm crossing, depending, as they do, much upon fancy and speculative theories, can not be controlling as against unquestioned repugnant facts. In giving construction to the statute, it is quite evident it could not have been intended the interests of the land owner or occupant are alone to be consulted, for the question also affects the interests of the railroad company and the public. It would not be reasonable to suppose that it was contemplated that a railroad company should be compelled to erect and maintain a crossing at a point where the expenses of so doing would be very greatly in excess of all benefits that could result therefrom to the land owner or occupant. Moreover, the rule is general that where a conflict arises between a mere private convenience on the one side and the public welfare on the other, . and one must give way, the former must yield to the latter. The public welfare demands as high a degree of safety in the transportation of persons and property by railroad as is reason ably attainable in view of the character and exigencies of that mode of transportation, and anything, therefore, which tends to directly and materially imperil the safety of such transportation, is so far inconsistent with the public welfare, and ought not to be allowed for the mere sake of a private convenience. It is here proved, and there is no conflict in the evidence in that regard, that the track of the railroad on the land of plaintiff in error is sharply curved to the south, with the center of the curve not far from the point of the proposed crossing; that at that point, and extending some small distance on each side, there is a cut, in which the top of the rail is eight feet below the natural surface; that the ■ proposed bridge will have to be elevated so that its lowest part will be nineteen and one-half feet above the top of the rail; that to give this elevation, embankments must be erected on each side of the cut, above the natural surface, to the requisite height; that the unavoidable effect of such embankment, on the north side of the cut, will be to obstruct and exclude from those operating the trains, all view of the track for a considerable distance on each side of the proposed crossing; that the danger of collisions on this part of the road will be thereby inevitably much increased, and by necessary consequence the transportation rendered, very materially, more perilous to persons and property. In the condemnation of the right of way over this land, the necessities and conveniences of location for farm crossings should have been, and we must presume were, taken into consideration, and if so, the damages were estimated upon the hypothesis that a farm crossing would not be constructed and maintained at this point or at any other point where such crossing would directly and very materially affect the safe and efficient operation of the road. ■ t

This undisputed fact, that the erection and maintenance of the proposed crossing would directly affect the operation of the road as a means of public transportation, by seriously tending to increase the danger of collisions, is, in our opinion, a conclusive reason why the crossing should not be constructed.

The decision of the Appellate Court is affirmed.

Judgment affirmed.


text:
    David Matthews v. Charles Hoff.

      Filed at Ottawa

      January 22, 1883.

    1. Jurisdiction—presumption—as to county courts. Every presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction. County courts in this State are courts of general jurisdiction in respect to all matters coming within the purview of their jurisdiction, and the same presumptions in favor of their jurisdiction in proceedings for the sale of land by administrators prevail as in favor of circuit courts.
    2. Service of process—evidence thereof—by recitals, or otherwise. Where a court of general jurisdiction in its judgment or decree finds that the defendant was duly notified of the suit by the service of process upon him in apt time, it is at least prima facie evidence of' such fact, and must be taken as well found, unless contradicted by the record itself.
    3. A summons was issued in a proceeding by an administratrix for an order to sell lands to pay debts of an estate, on July 12, 1867, returnable to the July term, fixed by law to commence on July 15, 1867, and was returned duly served on the only heir, who was made a defendant. No court was held at the July term, but at the August term following, a decree of sale was entered, which recited that the defendant “had due and legal notice of the filing of the petition in this case by said administratrix, as appears from the return of the sheriff to a summons issued in this cause against O. H., which service was made more than ten days before the first day of the present term of this court. ” No summons issued after the July term could be found some twelve years afterward, nor since, upon diligent search: Held, that the finding of the summons issued July 12, 1867, in the files, and failure to find any other one, were not sufficient to overcome the presumption of the issue and service of another summons arising from the recital in the decree.
    4. Summons—issued and made returnable to a term, less than ten days intervening.- On the filing of a petition by an administratrix for leave to sell lands to pay debts of the estate, the summons was issued July 12,1867, returnable to the July term, 1867, of the county court, which commenced on July 15, 1867. This was returned served on the defendant: Held, that the summons was void, and that service upon it gave the court no jurisdiction over the person of the defendant, as less than ten days intervened between tire date of the writ and the return day.
    Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Mr. William Lane, and Mr. James McCoy, for the appellant :
    The county court has jurisdiction to sell land to pay debts of a decedent, where there is a deficiency of the personalty. Hurd’s Stat. p. 116, sec. 95, chap. 3.
    The filing of the petition in the county court for the sale, gave the court jurisdiction of the subject matter. Goudy v. Hall, 36 Ill. 313; Gibson v. Roll, 27 id. 91.
    The court acquires jurisdiction of the subject matter of the suit from the death of the party seized of the real estate, the grant of letters, his indebtedness and the filing of the petition showing these facts. Bottsford v. O’Connor, 57 Ill. 72; Harris v. Lester, 80 id. 307.
    Jurisdiction of the person is obtained by the issuance of a summons, and legal service thereof made on the defendant; and in the absence of such process from the files, by loss or abstraction, such service may be shown by the recitals in the decree, when the court finds that such service had been made; and such finding of the court is conclusive, unless it is rebutted by other parts of the same record. Bottsford v. O’Connor, 57 Ill. 72; Miller v. Handy, 40 id. 448; Barnett v. Wolf, 70 id. 76; Turner v. Jenkins, 76 id. 228; Bowen v. Bond, 80 id. 351; Andrews v. Bernhardi, 87 id. 365; Searle v. Galbraith, 73 id. 269.
    If insufficient service is made on the defendant, of process issued, to give jurisdiction to the court over the person of the defendant, and the court finds that legal service was made on such defendant, such finding is conclusive in all collateral proceedings, unless it is impeached by the record itself in such a manner as to preclude all presumptions in its favor. Barnett v. Wolf, 70 Ill. 76; Bottsford v. O’Connor, 57 id. 72; Bowen v. Bond, 80 id. 351; Miller v. Handy, 40 id. 448.
    Where the validity of acts done under a judicial proceeding is collaterally called in question, the court will only look to the jurisdiction. If the court finds that it has jurisdiction of the subject matter and of the person, then it matters not how erroneous the proceedings of the court may have been, the rights of third persons acquired while such proceedings are unreversed, and by virtue of them, will be protected. Goudy v. Hall, 36 Ill. 313.
    Messrs. Bennett & Green, for the appellee:
    The record shows that the county court had no jurisdiction of the person of appellee. The summons was clearly void, as the law of 1857 required a summons issued within ten days of a term to be made returnable to the next term thereafter. The record of the court can not be contradicted, varied or explained by evidence outside of the record itself. Barnett v. Wolf, 70 Ill. 81; Bottsford v. O’Connor, 57 id. 72.
    In the case at bar there is nothing in the record to show that there was any other summons either issued or served, while the record of the clerk as to the fees and costs in the ease shows that the July summons was the only one issued.
    Appellant has referred to numerous cases to sustain his position that it must be presumed from the record that another summons issued and was served; but in many of them the finding of the court related to service by publication, where the rule is entirely different from that which governs when the service is by summons. This is so in the cases of Bowen v. Bond, 80 Ill. 351, Andrews v. Bernhardi, 87 id. 365, and Reddick v. State Bank of Illinois, 27 id. 145. And in the cases of Miller v. Handy, 40 Ill. 45, and Jenkins v. Hunter, 79 id. 230, the findings of the court were peculiar, and clearly-stated both the existence and service of other process than that found in the record.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was commenced in ejectment, in the name of Charles Hoff, by his guardian, William Crawford, against David Matthews, in the circuit court of Whiteside county, to the October term, 1879, of that court. There seem to have been three trials of the case in the circuit court, a new trial under the statute having been granted to each party. On the last trial, the court to whom the cause was submitted for decision, without the intervention of a jury, found that plaintiff was the owner in fee simple of the lands described in the declaration, and that defendant was guilty of withholding the possession of the premises from him, and rendered judgment accordingly.

It was admitted on the trial that both parties claim title to the lands from a common source,—that is, from Charles Hoff, who died intestate on the 4th day of May, 1865; that the intestate in his lifetime was the owner, in fee simple, of such lands, and that plaintiff is his only heir at law. It is in this way that plaintiff claims title to the property in controversy. On behalf of defendant it was proven that Maggie Hoff became, by appointment- by the county court, administratrix of the estate of Charles Hoff, her deceased husband, and, after qualifying, entered upon the duties of such office.

Afterwards, such proceedings were had in the county court, on the application of the administratrix, that the lands of which her husband died seized, were ordered to be sold to pay the debts of his estate, and in pursuance of the order and decree of the county court the lands were sold at public sale, after proper notice, to Sherman Smith, to whom the administratrix made a deed, in the usual form, conveying the lands in controversy. Subsequently, Smith, by deed, conveyed the lands to defendant, and it is the title derived through that source that defendant now insists is paramount, and should prevail.

Of course plaintiff would be entitled to recover unless his title to the lands which descended to him from his father was cut off by the administratrix’ sale, and the conveyance made in pursuance of such sale. The petition presented by the administratrix to the county court for the sale of the lands to pay the debts owing by the estate, was in the usual form, and was sufficient to confer on the court jurisdiction of the subject matter of the suit. But it is insisted the county court, in that proceeding, did not have jurisdiction of the person of the infant defendant, and for want of jurisdiction the sale was without authority of law, and hence it is said the title of defendant wholly fails. The question of most importance then is, whether the county court, on the petition of the administratrix, ever obtained jurisdiction of the person .of plaintiff in the proceedings to sell the lands that had belonged to his father, to pay the debts of his estate, and thus cut off the title plaintiff would otherwise have had to such lands.

It appears the petition for the sale of the lands was filed in the county court on the 12th day of July, 1867, and the summons issued therein to the minor defendant was made returnable to the July term of that court, which, by law, should have convened on the 15th day of the same month. That summons is found in the record, and seems to have been duly served on the defendant in that proceeding. No term of the county court was held in July of that year, and no record of any proceedings whatever as having been had at that term, appears in this record. The decree under which the property was in fact sold, was rendered at the August term of the county court,—that is, on the 28th day of August, 1867. It is recited in the decree for the sale of the property, that on the 28th day of August, 1867, the cause coming on to be heard, it appeared to the court the defendant therein “had due and legal notice of the filing of the petition in this case by said administratrix, as appears from the return of the sheriff to a summons issued in this cause against Charles Hoff, which service was made more than ten days before the first day of the present term of this court. ” When the files of this case in the county court were first examined, about the time this suit was commenced, no summons to the August term was found. That was some eleven or twelve years after the decree was rendered under which the property was sold. Nor has any summons to that term of court been since .found, although diligent search has been made by the proper officer. There is oral testimony to the effect that it was not the habit of the clerk then in office to keep any record of the issuing of summons in such cases, so there is absolutely no record evidence other than the finding of the court in its decree, that any summons was ever issued for defendant to the August term of the county court at which the decree of sale was entered. The testimony of the attorney that conducted the proceedings in the county court for the administratrix is, that after it was discovered .the summons issued to the July term was void, another summons was by his order issued for defendant in that suit, and delivered to the sheriff to be served. Of this fact the witness states he has a distinct recollection, but whether such summons was ever served he did not know, and did not assume to state. It may be true that a summons was issued for the defendant to the August term of the court, yet that fact by no means proves that it was ever served upon the defendant in the manner directed by statute. Rejecting all oral testimony, as must be done, as of no value whatever, the question remains, is the recital in the decree of the county court, the defendant “had due and legal notice” of the filing of the petition in the cause, “as appears from the return of the sheriff to a summons issued in this cause against Charles Hoff, which service was made more than ten days before the first day” of that term of the court, sufficient to support the jurisdiction of the court to pronounce the decree it did? That was a jurisdictional fact, which it was the duty of the court first to find, and as there is absolutely nothing in the record itself that contradicts the finding of the court touching the fact of service of process in.apt time, it must be regarded as well found, and prima facie evidence, at least, of the jurisdiction of the court over the person of the defendant. Every presumption will be indulged in favor of the" jurisdiction of a court of general jurisdiction, and county courts in this State are courts of general jurisdiction with respect to all matters coming .within the purview of their jurisdiction as given by law. Were the rule of law otherwise, there would be no safety for purchasers at judicial sales. As much reliance ought to be placed on the finding of a court as respects its jurisdiction, as to other facts in the case, unless contradicted by the record itself,—otherwise opportunity might be afforded in many instances, by the destruction of the files by parties interested, or by mere accident, to defeat sales made in the utmost good faith, upon full consideration paid by the purchaser. The case being considered illustrates the necessity for the rule. It is conceded the summons .to the July term of the county court was without authority of law, and that service upon it would have given the court no jurisdiction over the person of the defendant. But between that term and the convening of the court for the August term there was ample time in which another summons might have been issued and served. It must have so appeared to the court, for it solemnly found defendant “had due and legal notice” of the filing of the petition, from the return of the sheriff on the summons. There is nothing to show the court acted on the void summons to the July term of the court. The presumption is the court knew that summons was void, as having been issued contrary to the provisions of tlie statute, and that service of it by the sheriff did not give the defendant “due and legal notice” of the filing of the petition. How, then, did the court find it had jurisdiction of the person of the defendant ? It must have been from a summons issued to the August term, upon which there was the proper return of service by the sheriff, otherwise its finding on the question of jurisdiction would be absolutely untrue. All reasonable presumptions are in favor of the jurisdiction of the court, and the law will presume prima facie, at least, from the finding of the court, that such was the fact that such summons, with the proper return on it, was before the court, and may have, been abstracted or lost from the files.

But this is no new question in this court. In Miller v. Handy, 40 Ill. 448, on the question of jurisdiction, the court found two writs of scire facias had been returned nihil. ' That/ it was said, was strong presumptive evidence of that fact, to be rebutted only by the clearest proof. The fact the first writ issued to the August term was void, it was insisted, the return on it could not be counted as a return of one nihil. To that proposition the court assented, but as there was time and opportunity before the term of court at which the decree was rendered, to do so, it was presumed, on the faith of the finding of the court, that such was the fact that two nihils had been, returned. In support of the conclusion reached in that case, the court referred to Reddick v. Bank, 27 Ill. 145, where the necessity for the rule adopted was fully discussed. The rule announced in these cases has been followed in many subsequent cases in this court: Barnett v. Wolf, 70 Ill. 76; Turner v. Jenkins, 79 id. 228; Bowen v. Bond, 80 id. 351; Mulvey v. Gibbons, 87 id. 367. The reasoning in Turner v. Jenkins applies with equal force to the case being considered. It was there said: “Confessedly the service upon John Turner to the September term of court was defective. Without any steps having been taken, the cause was continued. At the ensuing term, the decree recites, defendants ‘were duly served ten days before the -first day of the October term.’ Only the summons to the September term is found in this record. Non constat, but a summons may have been issued to the October term, duly served on defendant, and-lost from the files. Every reasonable presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction, and its finding in the decree, defendants were ‘duly summoned,’ will be held prima facie evidence of the existence of that jurisdictional fact.” It will be noticed a close analogy exists between the facts in the case last cited and the one now before this court. Here, only the summons to the July term of the court is found in the record. It is possible another summons may have been issued to the August term, duly served on defendant, and lost from the files. It is to be presumed, on the faith.of the finding of the court in its decree, that such was the fact. The mere absence from the files, of the summons, ought not to be allowed to overcome the presumption arising from the finding of the court that it had jurisdiction. That would be a dangerous rule. As nothing appears in this record that rebuts the presumption in favor of the jurisdiction of the court, arising from the finding of jurisdictional facts in its decree, it must be held the county court had jurisdiction of the person of the defendant to pronounce the decree of sale, and its decree, in all collateral proceedings, at least, will be regarded as valid.

It is not thought necessary, at this time, to discuss some minor questions that are supposed to be involved. At most they are mere irregularities, and if found to exist they may be correctly determined on another trial, without any suggestions from this court.

The judgment of the circuit court will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    John T. Johnson v. The People of the State of Illinois.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Indictment—for statutory offences—requisites. An indictment for a mere statutory offence must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself. That it may so appear, the pleader must either charge the offence in the language of the statute, or specifically set forth the facts constituting the same.
    2. Where the statute creating a new offence does not describe the act or acts constituting such offence, the pleader is bound to set them forth specifically.
    3. Same—of the rule in respect to larceny by bailee, v/nder the statute. Section 170 of the Criminal Code, making a conversion of property by a person to whom it has been entrusted, a larceny, is not intended to apply to any case which is a larceny at common law; and all cases falling within it are mere statutory larcenies, and are subject to the rule of pleading applicable to statutory offences.
    4. Larceny—at common law—in what cases. At the common law there are three cases in which a conviction for larceny may be sustained when the apparent possession is in the accused: First, where the accused has the mere custody of the property, as contradistinguished from possession, as in the case of servants and the like; second, where he obtains the custody and apparent possession by means of fraud, or with the present purpose to steal the property; and third, where one having acquired possession by a valid contract of bailment, which is afterward terminated by some tortious act of the bailee, or otherwise, whereby the possession reverts to the owner, leaving the custody, merely, with the former, and he feloniously converts the property to his own use.
    5. Same—larceny at common law defined. Larceny at the common law is defined to be “the felonious taking and carrying away of the personal goods or property of another. ” Every larceny at common law includes a trespass to personal property, and no one lawfully in the possession of goods can commit a larceny of them at common law.
    6. Same—possession of goods, as distinguished from mere custody. Goods on the premises of the owner, to be used by himself and family, including his servants, are always deemed to be in the possession of the owner, although the ordinary duties of the servants and other members of the household require them, from time to time, to handle, occupy or use them, or even to sell or dispose of them. So where chairs, beds, etc., are occupied by a guest, whether in a hotel or private family, or where plates or other articles are used by one at the table of another, or where the owner delivers a chattel to another to be examined or used for some temporary purpose in the presence of the owner, the same rule applies. In all such cases the possession remains with the owner, and those having the temporary use or occupancy are deemed to have only the mere custody, and a felonious taking of the same by them is larceny.
    7. But when the owner of a chattel delivers it to one, other than a mere servant, in trust, upon a contract that the latter will faithfully execute the trust, the rule is different. In such case, which is an ordinary bailment, the possession as well as the custody passes to the bailee with its delivery, and while the bailment exists the bailee can not, by the common law, commit a larceny of the chattels.
    8. Same—in case the possession is obtained by fraud. Where the possession is not fairly and honestly obtained, as, when there is an original purpose on the part of the bailee to steal the property, and the bailment is a mere pretence on his part to hide a felonious intent, the possession will not pass; and if the property is subsequently converted in pursuance of such criminal purpose, it will be larceny, by the common law.
    9. Same—where owner parts with the possession, arid intends also to part with the title. Where the owner intends to part both with the title and possession, and the property is delivered in pursuance of such intention, the person receiving it can not be convicted of larceny, although the transfer was induced by the fraud of the latter, and with a purpose to steal the property.
    10. Same—larceny by bailee—at common law. Where the possession has passed, under a valid bailment, to the bailee, if he is guilty of any tortious act in respect to the subject of the bailment whereby the contract'is
    : terminated, the possession will revert back to the bailor, although the actual custody remains in the bailee; and if the latter then appropriates the property to his own use with intent to steal it, he will be guilty of larceny at common law.
    11. Same—larceny by bailee—under the statute. Under section 170 of the Criminal Code, a bailee may commit a statutory larceny of the subject of bailment, notwithstanding the possession is in him. The effect of this statute is to make that a crime which before was a mere breach of trust.
    12. Same—allegations and proof—as to the common law and statutory offence. Under an indictment for a common law larceny, no conviction can be had for the statutory offence made larceny by section 170 of the Criminal Code.
    13. Instetjction—on hypothesis which evidence tends to prove. Where there is evidence tending to show that one indicted for larceny at common law received the money alleged to have been stolen, as a bailee, for safe keeping, it is error in the court to refuse to instruct the jury, at the instance of the defendant, that there could be no conviction .under the indictment as framed, for the statutory offence.

      Writ op Error to the Circuit Court of Johnson county; the Hon. D. M. Browning; Judge, presiding.
    Messrs. Gregg & Parish, for the plaintiff in error:
    The indictment being for a common law larceny, to sustain it the proof must have shown that defendant took the coin with intent to steal the same at that time. The court, however, instructed the jury that it was not necessary for the People to prove that defendant, at the time he took possession of the coin, intended to steal it; but if the proof showed that he came into possession of the coin lawfully, as bailee, without intention at the time to steal it, and afterward converted the same to his own use with intent to steal, they should find him guilty as charged.
    The instruction conflicts with the rule that the allegations and proof must agree, and is in conflict with Kibs v. People, 81 Ill. 600, Welsh v. People, 17 id. 339, and Stinson v. People, 43 id. 397.
    Where a statute makes a conversion by a bailee larceny, and the bailee guilty of larceny as if the original taking was felonious, the relation of bailee must be stated in the indictment. Bishop on Statutory Crimes, secs. 419-421; People v. Smith, 23 Cal. 280; People v. Jersey, 18 id. 337; People v. Poggi, 19 id. 600; People v. Peterson, 9 id. 313; People v. Cohen, 8 id. 42.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the November term, 1883, of the Johnson county circuit court, John T. Johnson was convicted, and sentenced to. the penitentiary for two years, for the larceny of five twenty-dollar gold pieces, the property of one Charles Grattan. The present writ of error is brought to reverse that conviction.

The evidence tends to show the money charged to have been stolen was voluntarily delivered by the owner to the accused for safe keeping, the former being on a spree, and considerably intoxicated at the time. ' The indictment under which the conviction was had, was in the ordinary form, charging the defendant with a common law larceny, merely. It was contended on behalf of the accused, in the court below, and the claim is renewed here, that the facts proven do not establish a larceny at common law, and that consequently there can be no conviction under the indictment as framed, even conceding the evidence makes out a case against him as bailee, under the 170th section of the Criminal Code. If it be conceded as a matter of fact that the evidence does not establish a larceny at common law, but at most a mere statutory larceny, then we agree with counsel for the accused the conviction was improper, for no principle of criminal pleading is better settled than that an indictment for a mere statutory offence must be framed upon the statute, and that this fact must distinctly appear upon the face of the indictment itself. That it shall so appear, the pleader must either charge the offence in the language of the act, or specifically set forth the facts constituting the same. It sometimes happens, however, that the language of a statute creating a new offence does not describe the act or acts constituting such offence. In that case the pleader is bound to set them forth specifically. This elementary rule is laid down in all standard works on criminal law, and is fully recognized by this court. 1 Wharton on Crim. Law, secs. 164, 372; Kibs v. The People, 81 Ill. 599.

The 170th section of the Criminal Code, just referred to, is as follows: “If any bailee of any bank bill, note, money, or other property, shall convert the same to his own use, with intent to steal the same, or secretes the same with intent so to do, he shall be deemed guilty of larceny. ” This provision of the statute, according to a well settled construction given to similar statutes, both in this country and in England, was not intended to apply to any eases which are larcenies at common law. (2 Archbold’s Crim. Proc. & Pleading, 574; 2 Wharton on Crim. Law, sec. 1905.) Hence all cases falling within it are mere statutory larcenies, and are therefore subject to the rule of pleading applicable to statutory offences, as above stated.

Assuming the accused to be guilty of either the statutory or the common law offence, it was the duty of the jury to determine, as matter of fact, from the evidence before them,1 which of the crimes had been committed. On the other hand,11 it was the duty of the court, if requested, to instruct the jury as to all matters of law arising out of' the evidence, calculated to aid the jury in the performance of this and other-duties. On the trial of the cause the court declined to. instruct the jury, at the instance of the accused, that there. could be no conviction, under the indictment as framed, for the statutory offence. The ruling of the court in this respect, of course, was erroneous, if there was evidence before the jury upon which to base the instruction. But before further discussing the facts, it will be proper to state, as near as may be, the essential elements that enter into the crime of larceny at common law, and to particularly point out wherein it differs from the statutory offence.

Larceny, by the common law, is defined to be “the felonious taking and carrying away of the personal goods or property of another. ” From this definition it follows that every larceny necessarily includes a trespass, for a trespass to personal property is nothing more than the unlawful and forcible taking of the goods of another without such felonious intent; and as trespass is an injury to the possession only, it logically and legally follows that no one in the lawful possession of goods can commit a larceny of them, for it were idle and absurd to talk of one committing an injury to his own possession,—and such is the well settled doctrine of the common law.,/ One, however, may have the actual custody of goods, and yet not have the possession. Thus, goods on the premises of the owner, to be used by himself and family, including his servants, are always to be deemed in the pos: session of the owner, although the ordinary duties of the servants and other members of the household require them, from time to time, to handle, occupy or use them, or even to sell or dispose of them to others. So where chairs, beds, etc., are occupied by a guest, whether in a hotel or in a private family, or where plates or other articles are used by one at the table of another,- or where the owner delivers a chattel to another to be examined or used for some temporary purpose in the presence of the owner, the same rule applies. In all these cases, and in all others analogous in principle, ■ the possession remains with the owner, and those having the temporary- use or occupancy of the property are deemed, in. law, to have the mere custody of it, as contradistinguished from the possession. But where the owner of a chattel delivers it to one, other than to a mere servant, in trust, upon a contract, express or implied, that the latter will faithfully execute the trust, the rule is different. In such case, which is one of ordinary bailment, the possession as well as the custody of the chattel passes to the bailee with its delivery; and it follows from what we have said, while the contract of bailment subsists, the bailee can not, by the common law, commit a larceny of the chattel. Such is undoubtedly the common law rule with respect to larceny by bailees. It is to be borne in mind, however, that in all cases where this rule is properly applicable, the delivery of the property must have been fairly and honestly obtained, otherwise the legal possession will remain with the owner, notwithstanding the- delivery. In such case the apparent contract of bailment is, at the election of the bailor, in contemplation of law really no contract at all, by reason of the fraud, for it is. a familiar principle that fraud vitiates whatever it enters into. On this principle, whenever there is an original purpose on the part of the bailee to steal the property, and the bailment is á mere pretence on his part to hide a felonious intent, the' possession will not pass; and if the property is subsequently converted, in pursuance of such criminal purpose, it • will be larceny by the common law. But even in cases where the contract of bailment is valid, and the possession has passed to the bailee, if the latter is guilty of any tortious act in respect to the subject of bailment, whereby the contract is terminated, the possession will result to the bailor, although the actual custody of the property bailed remains in the bailee; and if the latter, after the contract has been thus terminated, appropriates it to his own use with intent to steal it, he will be guilty of larceny at the common law. Thus, where a carrier of goods broke a package, and fraudulently converted a part of them, it was held to.be larceny, u So where one to whom was handed a letter containing money, to be carried to the post office, broke it open on the way, and afterwards converted the money, it was held the same way. The tortious acts of breaking the package in the one ease, and the breaking open the letter in the other, severally terminated the contracts of bailment, an^f^ the legal possession resulted to the respective owners. "

From this review of the subject it will be perceived there are three classes of cases in which convictions for larceny at common law are sustained where the apparent possession is in the accused: First, where the accused has the mere custody of the property, as contradistinguished from possession, as in the case of servants and the like; second, where he obtains • the custody and apparent possession by means .of fraud, or with a present purpose to steal the property.; and "third, where one having acquired possession by a valid contract of bailment, which is subsequently terminated by some tortious act of the bailee, or otherwise, whereby the possession reverts to the owner, leaving the custody, merely, in the former, and the bailee, while being thus a mere custodian, feloniously converts the property to his own use. But in all these cases the legal possession is in the owner at the' time of the felonious conversion, the accused, in contemplation of law, being regarded as a mere custodian of the property. It is to be further noted, that in those cases where the contract of bailment has been induced by the fraud of the accused, and convictions are permitted on that ground, the owner does not, either in fact or in law, part or intend to part with the property itself, and the constructive possession which he has of it by reason of his general ownership, is held to be superior to a quasi possession or custody acquired by mere fraud or other wrongful act. But where the owner intends to part both with the title and possession, and the property is delivered in pursuance of such intention, the person receiving it can not be convicted of larceny, although the transfer was induced by the fraud of the latter, and with a purpose to steal the property. In these cases the title actually passes, subject to the right of the owner to reclaim the property on account of the fraud, and thus reinvest himself with the title; but until he does this, both the title and possession are in the fraudulent vendee, and hence the latter can not be convicted of a larceny of it. The general doctrines of the common law in respect to larceny, as affected by the possession of the property, will be found, upon an examination of the following authorities, to be substantially as stated above: 2 Archbold’s Crim. Proc. & Plead. 442; 2 Wharton on Crim. Law, secs. 1840, 1843; Rex v. Bazely, 2 East’s P. C. 571; Bull’s case, id. 572; Lavender’s case, id. 566; Rex v. Mucklow, 1 Moore, 160; 2 East’s P. C. 692; Baxter v. People, 3 Gilm. 368; Welsh v. People, 17 Ill. 339 ; Stinson v. People, 43 id. 399; Zschocke v. People, 62 id. 127; Phelps v. People, 55 id. 334.

As a bailee is one who has the possession and a qualified property in goods or other personal property under a contract with the owner, either express or implied, it follows from what we have said, and the authorities just cited, that he can not commit a larceny of the subject of the bailment so long as the contract under which he holds the same is subáísting; but when the contract by any means terminates, he, of course, ceases to be a bailee, and the possession, as we have already seen, results to the owner, although the bare custody may still remain with the bailee. In short, as we have heretofore seen, a bailee can not, at the common law, commit a larceny of the subject of bailment, for the reason the possession is in the bailee. Under the 170th section of the Criminal Code, however, a bailee may commit a statutory larceny of the subject of bailment, notwithstanding the possession is in the bailee. Indeed, by the very, terms'of the act a bailee in possession alone, can commit the statutory offence, for there can be no such a thing as a bailee out of possession. The effect of the statute therefore is, to make that a crime which before the act was a mere breach of trust.

The question then recurs, assuming the defendant to be guilty, does the evidence tend to show he is guilty of the statutory offence? Of this there is absolutely no doubt. The prisoner swears positively the money was given to him by Grattan for safe keeping, and in this statement he is certainly somewhat corroborated by others. This, of course, assuming it to be true, constituted a bailment of the money, and assuming the contract of bailment to have continued in force until the time of conversion, (and there is nothing in the evidence showing the contrary,) it afforded a complete answer to the common law indictment. But for the purposes of the question before us it is wholly immaterial whether the evidence tending to show the bailment was true or false. The evidence was before the jury. Of that there is no doubt; and it was the right of the accused to have the jury instructed as to what his rights were, in the event they found the facts as stated by him. The denial of this right was error, for which the case will have to be reversed. If there was an original intent to steal the money, the prisoner might well have been convicted under the indictment as framed, as that would have been larceny at the common law, and it was the right of the People to have the jury so instructed. But this was but one side of the case,—both should have been given. It may be the jury convicted the accused upon the hypothesis there was an original intent to steal the money; but upon the record before us no one can tell. Whether the jury would have been justified in convicting upon this theory, is a question about which we express no opinion, and with which we are not, as the case is now presented, concerned. If the court ' had given the defendant’s instruction presenting this theory of the case, to the jury, then this question would become important ; but as it did not, the question is immaterial. If a conviction under the statute was relied on, the indictment should clearly have set out the fiduciary relation of the accused with respect to the money,—or, in other words, should have set out the facts constituting the bailment. This was not done. The- accused not being charged with the statutory offence, it is therefore clear he can not, under the present indictment, be convicted of it. Some statutes, in other respects like our own, expressly provide that a conviction may be had under a common law indictment. The present English statute contains such a provision, but ours does not,—hence the common law principles of pleading are to be applied with us, while a different rule would prevail in those States or countries where such a statutory provision exists. In the absence of such a provision the authorities uniformly hold as we have stated.

The judgment of the circuit court is reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Judgment reversed.