author: Mr. Justice Mulkey

text:
    Indianapolis, Bloomington and Western Railway Company v. William W. Hall.

      Filed at Springfield March 29, 1883.

    1. Negligence—speed of railway trains—as affecting liability for negligence. A railway company may run its trains at any rate of'speed it chooses, so that, when taken in connection with the character of the road, its grades, curves, etc., and the various other questions affecting the question'of safety, it appears it does not increase the ordinary risks and dangers incident to travel by rail. So long as the increased speed of trains adds nothing to the dangers and risks of the traveling public, the courts have no right to interpose. Subject to this limitation, railway companies have the right to fix the rate of speed of their trains as they think best.
    2. Such companies may run their trains at such speed as, under all the circumstances, shall comport with the rule of law which requires them to exercise a high degree of care for the safety of passengers, and whether a given rate of speed is dangerous or not is to be determined by the surrounding circumstances, such as, condition of the track, fencing of right of way, etc.
    3. Instruction—construed, as to whether the running of a train of cars at a certain speed is negligence. In an action on the case for a personal injury, against a railway company, on the alleged ground of negligence in running and operating its train, and in running the train at a high and dangerous rate of speed, the court, on behalf of the plaintiff, instructed the jury that “if such train was being run by the employés of the defendant at a high and dangerous rate of speed, such speed being so high and dangerous as to become a negligent management of the train, and that such accident resulted in consequence thereof, the jury will find the issues for the plaintiff. ” The proof showed that the train, at the time of the accident, was running at the rate of fifty miles an hour, and upon a straight line, on which an animal on the track might have been seen in ample time to have checked the speed of the train: Held, that the instruction was not liable to the objection that it announced that a given high rate of speed for a passenger train was a dangerous rate, which would of itself render the company liable for damages arising-from accident.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. N. J. Pillsbuby, Judge, presiding.

      This was an action on the case, by William W. Hall, against the appellant, to recover damages for a personal injury alleged to have been caused by negligence, as stated in the opinion of the court.
    Messrs. Rowell & Hamilton, for the appellant:
    A high rate of speed can only become carelessness when connected with careless and negligent surroundings, such as, where the track is negligently constructed, and out of repair. Toledo, Wabash and Western Ry. Co. v. Apperson, 49 Ill. 480; Peoria, Pekin and Jacksonville R. R. Co. v. Reynolds, 88 id. 418.
    The rate of speed at which a passenger train is run is not, per se, negligence, so as to make the company liable for an accident resulting in his injury. Shearman & Redfield on Negligence, (3d ed.) 560, sec. 478; 1 Thompson on Negligence, 505; Heazle v. Indianapolis, Bloomington and Western Ry. Co. 76 Ill. 501:
    On a contested point of evidence, negligence is a question of fact, but when the material facts are admitted, then it is a question of law whether those facts constitute negligence. Chicago, Rock Island and Pacific R. R. Co. v. Boyce, 73 Ill. 513.
    Mr. James S. Ewing, for the appellee:
    We deny the proposition that any rate of speed whatever may not, in itself, amount to negligence, and there was no error in the giving or refusing of instructions in respect to this point.
    In determining the question of negligence on the part of the railway company, the jury had a right to consider the rate of speed at which the train was being moved, together with all the surrounding circumstances. This view is supported by Toledo, Wabash and Western Ry. Co. v. Apperson, 49 Ill. 400; Peoria, Pekin and Jacksonville R. R. Co. v. Reynolds, 88 id. 418.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action on the case, brought by William W. Hall, the appellee, against the Indianapolis, Bloomington and Western Bailway Company, the appellant, in the circuit court of McLean county, to recover for injuries received by appellee while a passenger on the train of appellant, alleged to have been occasioned by the negligence of the appellant’s servants and employés in running and operating its train. There was a trial upon the merits before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for $1125, which was subsequently affirmed by the Appellate Court for the Third District, and the case is brought from that court to this for review.

The declaration charged, in the usual way, negligence, 'generally, on the part of the company’s servants in running and operating its train, and also, specially, that at the time of the accident the train of the company was running at a high and dangerous rate of speed, whereby the injuries in question were occasioned. These allegations of fact were put directly in issue by the appellant’s plea of not guilty, and it is conceded the finding of both the lower courts upon the issues thus raised conclusively settles all controverted facts adversely to appellant.

The immediate cause of the injury was the train striking a cow on the track, which threw most of the cars off the rails, and upset and ditched the one in which appellee was riding. The train was a fast express, running, at the time, about fifty miles an hour,—schedule time. The road-bed, rolling stock, machinery, etc., so far as the record discloses, were all first class, and in good condition, and the accident occurred on a straight stretch of road, so that, assuming there was sufficient light, a cow or other object of that size on the track might have been seen by the fireman or engineer, had they been on the lookout, in ample time to have avoided the collision. The accident occurred early in the morning, and, as appellant contends, when, by reason of falling rain, mist and darkness, it was impossible for one to have seen a cow, or other like object, but a few yard£ in advance of the train. On the other hand, appellee contends that there was neither mist nor rain, and that it was so light that the cow might easily have been seen at least a half mile in advance of the train, and in ample time to have checked it up, had those in charge of it been on the lookout, as they should have been. There is evidence in the record tending to establish both these claims. B is therefore clear that on the trial- the turning point in the case was, whether the jury would adopt the one or the other of these theories,—or, in other words, whether they would believe appellant’s or appellee’s witnesses. The result of the trial shows they believed the latter, and consequently we must accept -appellee’s theory of the case as the true one. Such being the case, it is clear the judgment of the Appellate Court must be affirmed, unless it shall appear there is error of law upon- the face of the record.

The only instruction given to the jury, at the instance of appellee, to which appellant’s counsel, in their brief in this court, take any exception, is the following:

“If said train was being run by the employés of the defendant at a high and dangerous rate of speed, such speed being so high and dangerous as to become a negligent management of the train, and that such accident resulted in consequence thereof, then the jury will find the issues for the plaintiff.”

We see no objection to this instruction: It simply tells the jury, in substance, that if they find the train was run by the servants of the company at so high and dangerous rate of speed as to become a negligent management of such train, and that the accident causing the injury of appellee resulted therefrom, they should find the issue for the plaintiff. As we understand counsel for appellant, it is claimed that the circuit court, by the giving of this instruction, and refusing others asked by appellant, ■ in effect held as the law of the case, “that a given high rate of speed for a passenger train was a dangerous and negligent rate, which would, of itself, render the company liable for damages arising from accident. ” We fail to see anything in the instruction cited, or in the refused instructions referred to, which warrants the conclusion which appellant draws from them.’ And that the circuit court did not understand or hold the law as claimed by appellant’s counsel, is manifest from the following instruction, which was given to the jury on behalf of appellant:

“The jury are instructed that railway companies are permitted by law to run then: passenger trains at such high rate of speed as, under all the surrounding circumstances and conditions of train, track, etc., shall comport with the rule of law which requires them to exercise a high degree of care for the safety of the passengers; and whether a given rate of speed is dangerous or not, is to be determined by the surrounding circumstances, such as, condition of the track, fencing of right of way, that management of the train as shown by the testimony, and it must be such a degree of danger as is not ordinarily incident to railway travel. ”

This instruction is a fair and accurate presentation of the law of the ease, so far as the speed of the train was concerned. Whether the running of a train at any supposable rate of speed, without reference to any other conditions, would be regarded as negligence per se, is not presented by this record, and it is difficult to conceive how such a question could arise. So many conditions necessarily enter into the question as to what rate of speed a passenger train may run with due regard to the safety of passengers, it is not perceived how any general rule could be laid down on the subject, unless it be the general proposition that however great the speed with which a train is moved, such speed, when taken in connection with the character of the road, its grades, curves, etc., and the various other conditions necessarily affecting the question of safety, it must not materially increase the ordinary risks and dangers incident to traveling by rail. So long as the increased speed of trains adds nothing to the dangers and risks of the traveling public, courts have no right to interpose. Subject to this limitation, railway companies have the unquestioned right to fix the rate of speed as they think best.

We are clearly of opinion the court properly refused appellant’s first, fourth, fifth and sixth instructions. As to the first, it is so wanting in perspicuity that it was liable to mislead the jury, and should have been refused for that reason. Neither of the others laid down any principle of law applicable to the facts before the jury. In short, we find no error in the record. Indeed, we have seldom found a record so entirely free from error.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Adeline C. Moore, Ex’x. v. The People ex rel. Thomas A. Lewis.

      Filed at Springfield March 29, 1883.

    1. Special assessment—under the Drainage law—to what extent of tract the assessment is limited. Section 14 of the Drainage act, which provides that the commissioners shall assess to each tract of land its proportionate share of the entire cost of the work, does not require that a tract of land shall be divided into the smallest legal subdivisions, in making the assessment, but the more reasonable rule is, that two or more tracts disconnected shall not be valued and assessed together. The assessment of a tract of 420 acres, all situated in one section, and in one body, and levying a gross sum upon the whole, was held no ground for defeating judgment on the assessment.

      2. Same—of a second assessment—when allowed—and whether the reasons therefor must be stated. A second special assessment by the commissioners of a drainage district is not void merely because the record of their proceedings fails to show for what purpose it is made. A second one is allowed where the first one proves inadequate to complete the work proposed, or when necessary for maintenance and repairs.
    3. Same—remedy of party aggrieved. If it be claimed that a second assessment has been made for any other than a proper purpose, the party affected should interpose his objection before the commissioners, at their meeting to confirm the assessment.
    4. Same—as to what property is benefited—time to object. In making assessments under the Drainage law, it is made the duty of the commissioners to determine what property "will be benefited by the proposed work, and what not, and their determination, when called in question for the first time on the application for judgment against the land assessed, in the absence of fraud, must be held conclusive. The remedy of any one aggrieved, is to make his objection to the confirmation of the assessment, and if relief is denied, then by an appeal.
    5. Drainage law—constitutionality—as to the rule of uniformity in taxation. The Drainage act is not in violation of the rule of uniformity in taxation prescribed by sections 1, 9 and 10, article 9, of the constitution. Those sections have no bearing on special assessments, and if they once did, the amendment of section 31 of article 4 of the constitution, relating expressly to drainage, must control.
    Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Mr. J. O. Cunningham, for the appellant:
    The first assessment is void. The" roll shows a gross sum of $600 assessed against the land of Moore, described therein by four distinct descriptions. The statute requires that each tract shall be assessed its proportionate share of the entire cost of the work. Sec. 14 of Drainage act.
    Where the statute prescribes a mode and purpose of taxation, it must be pursued, and no other mode or purpose can be substituted by officials exercising the power. People v. Otis, 74 Ill. 384; Webster v. People, 98 id. 343; Mix v. People, 72 id. 241; Chicago v. Rock Island R. R. Co. 20 id. 286 ; Rex v. Croke, 1 Cowp. 30.

      The statute is not merely directory, but confers a right upon owners of land which can not be disregarded. French v. Edwards, 13 Wall. 506; Cooley on Taxation, 215; Cooley’s Const. Lim. marg. page 518.
    If the first assessment was illegal and void, the second assessment, having no legal basis, is void also, for there must be a first assessment as a basis before there can be a second. Bowen et al. v. City of Chicago, 61 Ill. 268 ; Union Building Association v. City of Chicago, 61 id. 349; Workman et al. v. City of Chicago, 61 id. 463.
    It will be seen from the statute (sec. 32) that to justify a second or a third assessment, one of two contingencies must arise. The first sum must be insufficient to complete the work proposed, or an additional sum must be necessary for maintenance or repairs. Neither of these contingencies is shown to have existed. See Ayer v. Town of Lake, 11 Bradw. 564.
    Presumptions can not help out a record which is so defective as not to answer the requirements of the law. Cooley on Taxation, 332.
    The necessity for the exercise of the power should appear on the face of the proceedings. Smith v. Hileman, 1 Scam. 323; Moffitt v. Moffitt, 69 Ill. 641; Bree v. Bree, 51 id. 367; Chicago, Burlington and Quincy R. R. Co. v. Chamberlain, 84 id. 335.
    This assessment is void ón account of the failure to assess the right of way and franchise of a certain railroad, and the public roads, with some portion of the burdens. Chicago v. Baer et al. 41 Ill. 306; Chicago City Ry. Co. v. Chicago, 90 id. 574; Gilkerson v. Scott, 76 id. 509.
    Errors in the assessment are not cured by its confirmation, it not being a judicial act. Scammon v. Chicago, 42 Ill. 196; Creote v. Chicago, 56 id. 424.
    The act under which these proceedings were had is unconstitutional, as it violates the uniformity enjoined by sections 1, 9 and 10, article 9.

      Mr. Wm. W. Webber, for the appellee :
    The lands assessed in gross all laid together, constituting one tract or farm, and was proper. Spellman v. Curtenius, 12 Ill. 409; Pitkin v. Yaw, 13 id. 257.
    Objections to the fairness of a special assessment, or the basis on which it is made, should be made at the proper time, and before confirmation. Chicago v. Burtice, 24 Ill. 489; Wright v. Chicago, 48 id. 285; Jenks v. Chicago, id. 285.
    As to what should be included and what omitted in the assessment of special benefits to be derived in the contemplated improvement can not be questioned, except for fraud. It can not be overthrown by the testimony of other persons that property benefited by the improvement was not assessed. Elliott v. Chicago, 48 Ill. 293.
    If assessments are too high, the only remedy is by application to the assessor, as provided for by section 86 of the Revenue law, except when the assessment has been fraudulently made. (English v. People, 96 Ill. 566.) Sections 18, 19, 20 and- 21, of the Drainage law, are similar to section 86 of the Revenue law. The court will not inquire into irregularities which do not affect the substantial justice of the tax. Buck v. People, 78 Ill. 560; Thatcher v. People, 79 id. 597; Chiniquy v. People, 78 id. 570; Speight v. People, 87 id. 595; Edwards v. People, 88 id. 340; Beers v. People, 83 id. 488; Fisher v. People, 84 id. 491.
    As to the objection the railroad company was not assessed, I refer to Elliott v. Chicago, 48 Ill. 293; Jenks v. Chicago, id. 296; Ottawa v. Chicago and Rock Island R. R. Co. 25 id. 43.
    The cases cited as showing these objections were not cut off by the judgment of confirmation were all made under the constitution of 1848, and cases where no appeal was allowed from the order of confirmation.
    The Drainage act is not in violation of the constitution. The cases cited on this point were decided before the amendment to the constitution, which clearly authorizes the act.
   Mr. Justice Craig

delivered the opinion of the Com-t:

This was an application by the county collector of Champaign county for judgment against certain lands owned by appellant, for the non-payment of two special assessments made by the commissioners of Union Drainage District No. 2, of the townships of St. Joseph and Ogden, in Champaign county. The lands of appellant consisted of 420 acres, in a contiguous tract, located in section 7. The commissioners, in making the assessment, assessed a gross sum of $600 against the entire tract of land, and it is contended that the assessment is unauthorized and void,—that the law required the lands to be divided, and a separate assessment made upon each tract.

Section 14 of the Drainage act, which provides that the éommissioners shall assess to each tract of land its proportionate share of the entire cost of the work, does not, as we understand the act, require that a tract of land shall be divided into the smallest legal subdivisions in making the assessment, but the more reasonable view is, that two or more tracts, disconnected, should not be valued and assessed together. This is the construction placed upon a similar statute in Spellman v. Curtenius, 12 Ill. 409, where it was held that the statute requiring each tract of land to be listed and valued separately, does not require that such listing shall be upon the smallest legal subdivisions of land, but that two or more disconnected tracts shall not be listed and valued together. Here, the land of appellant was located in the same section, in one body, and for the purposes of this assessment may be regarded as one tract of land.

Section 32 of the Drainage act provides, that where the assessments hereinbefore made shall be inadequate to complete the work proposed, or where assessments shall be necessary for maintenance and repair, each tract of land shall be assessed such proportion of the additional cost as its original assessment bore to the total original assessment, and the said additional assessment shall be made by the commissioners in the same manner that the original assessment was made. At a meeting of the drainage commissioners, November 23, 1880, it was, on motion, ordered that an additional assessment of $1812 be levied on the lands in the district. This order was, at the meeting of January 7, 1881, amended to read as follows: “That eighty-three cents additional assessment be levied on each dollar of the previous levy. ” It is claimed by appellant that the second assessment is^void, for the reason the record of the commissioners fails to show the object of this assessment,—that the amount was necessary to complete the work, or necessary for maintenance and repair. It is true the commissioners had no authority to make a second assessment unless the amount first assessed was inadequate to complete the work, or unless it was necessary to raise money for maintenance and repair; but the statute does not require that the commissioners should place upon the record the reason or object which led to the second assessment, and in the absence of such a requirement by the act, the action of the commissioners can not be held void. If the second assessment was not required for either of the purposes named in section 32 of the act, appellant, as well as every other property owner in the district, had a remedy which would have afforded relief had they appeared before the commissioners when they met to confirm the assessment, and there interposed the proper objection.

It is also urged that the assessment is void for the reason that the right of way and franchise of the Indianapolis, Bloomington and Western Railway Company, which runs through the district, and the public highways, were not assessed, while they were benefited. It was a duty resting upon the commissioners to determine what property was benefited and what was not, and their determination, when called in question for the first time on the application for judgment against the land assessed, must be held conclusive, in the absence of fraud. (Elliott v. Chicago, 48 Ill. 293; Jenks v. Chicago, id. 296.) The judgment of the commissioners in regard to the assessment of property can not, where they have acted honestly and fairly, be overthrown by the mere opinions of witnesses as to what property has been benefited, when application for judgment is made against the land. This, and other like objections, if appellant desired to rely upon them, should have been made at the meeting of the commissioners to confirm the assessment. If the commissioners had denied the relief, the statute gave an appeal. A complete remedy was therefore open to appellant, if he had availed of it at the proper time.

It is also claimed that the act is. unconstitutional,—that it is in violation of the uniformity enjoined in sections 1, 9 and 10, of article 9, of the constitution. We do not think the uniformity here enjoined has any bearing whatever on the question. The amendment of section 31, of article 4, of the constitution, found in the laws of 1877, page 219, which became a part of the constitution by a vote of the people, in express terms authorized the General Assembly to pass laws permitting the owners of lands to construct drains, etc., for agricultural, sanitary or mining purposes, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain drains, etc., and keep them in repair, by special assessments upon the property benefited. The act under which the proceedings were had was passed under the authority of this amendment, and authorized by it, and if sections 1, 9 and 10, of article 9, ever had any bearing upon an assessment of this character, after this amendment became a part of the organic act, it would control, regardless of the provisions of the original constitution.

Other questions of a technical character have been urged, but it will not be necessary to consider them here. We do not regard the objections urged to the application for judgment as valid, and the court, in our opinion, properly overruled them, and rendered judgment against the land for the amount of the assessments.

The judgment will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    William J. Dobbins v. Sarah J. Cruger et al.

      Filed at Ottawa March 28, 1883.

      Appeal—directly from trial court—creditor’s bill. A decree in the circuit court dismissing a creditor’s bill, the purpose of which was to subject certain premises to the payment of a judgment, can not be brought directly from that court to the Supreme Court for review.
    Writ of Error to the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Hopkins & Hammond, for the plaintiff in error.
    Messrs. Puterbaugh & Puterbaugh, for the defendants in error.
   Per Curiam :

This is a creditor’s bill, in the usual form, and was to subject certain premises to the payment of a judgment represented by complainant. On the hearing in the circuit court the bill was dismissed for want of equity, and complainant brings the case directly to this court on error. The case is precisely within the rule declared in Sawyer v. Moyer, 105 Ill. 192, and the writ of error must be dismissed, which is done.

Writ of error dismissed.


author: Mr. Justice Scholfield

text:
    Anthony McNamara et al. v. Thomas Garrity.

      Filed at Springfield March 29, 1883.

    1. Statute of Frauds—sale of land by parole-part performance. The payment of the purchase money for land, taking possession under the contract to convey, and the making of lasting and valuable improvements upon the land, in equity, will take a parol sale out of the Statute of Frauds.
    2. Resulting trust—whether it arises. Where two persons purchased forty acres of land, under a verbal agreement between themselves that one was to pay one-fourth of the price for ten acres off a certain side of the tract, and he paid his fourth of the purchase money, which in effect was used directly in the purchase of the entire tract, and the other took a deed to himself for the whole, it was held, that a trust resulted by operation of law in favor of the party so bargaining for the one-fourth as to his part of the tract, and that the Statute of Frauds had no application to the case.
    3. If one person purchases land with the money of another, and takes a deed in his own name, though done under a verbal agreement between them, a resulting trust is created by operation of law in favor of the one furnishing the money, which a court of equity will enforce.
    4. Limitation—as against one in possession. Two persons purchased a tract of land, each to have a certain portion thereof, and one of them took a deed for all, giving back a mortgage to the vendor to secure the price, which mortgage was afterward discharged J>y the money of both the purchasers, so that a resulting trust was created against the one taking the deed. The other took possession of his part, and made lasting and valuable improvements on the same, and continued in the undisputed possession for more than twenty years, during -which time he paid his share of the taxes, and for some years leased his part to his co-purchaser, in whose name the title rested, who paid rent. It was held, on bill filed by the one so occupying his land to compel the other to convey to him, that the Statute of Limitations was no bar to the equitable relief sought.
    Appeal from the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. James E. Ward, for the appellants:
    The Statute of Frauds was set up and"relied upon by appellants in their answer. Its effect can not be avoided. The decree, therefore, can not he sustained by mere parol proof of a contract or express trust. Carpenter v. Davis, 72 Ill. 17; Hovey v. Holcomb, 11 id. 665; Hurd’s Stat. 1881, secs. 2, 9, chap. 59.
    A resulting trust can not be created by contract or agreement. If a trust of any kind is created by contract, it will be an express and not a resulting trust. Loomis v. Loomis, 28 Ill. 457; Holmes v. Holmes, 44 id. 169; Sheldon v. Harding, id. 69; Remington v. Campbell, 50 id. 516.
    After the lapse of twenty years the law will require the clearest and most satisfactory proof of the trust before relief will be granted. Enos v. Hunter, 4 Gilm. 218; Kane County v. Herrington, 50 Ill. 232; Lantry v. Lantry, 51 id. 466; 1 Perry on Trusts, 151, sec. 137.
    Payment at the time of the purchase is indispensable to the creation of the trust. Loomis v. Loomis, 28 Ill. 456; 1 Perry on Trusts, sec. 133.
    After the legal title has vested, and there is no fraud, payment of the unpaid purchase money by a third person will not raise the trust. Walter v. Klock, 55 Ill. 362; Beach v. Dyer, 93 id. 301; Lear v. Choteau, 23 id. 39.
    As to what is essential to the existence of a resulting trust, see Alexander v. Tams, 13 Ill. 225; Perry v. McHenry, id. 233; Bruce v. Roney, 18 id. 73; Lantry v. Lantry, 51 id. 458.
    If this is a resulting trust, we insist that the Statute of Limitations, set up and relied on in our answer, bars the suit. Quayle v. Guild, 91 Ill. 384; Albrecht v. Wolf, 58 id. 190; Kane County v. Herrington, 50 id. 237.
    Mr. Henry G. Withers, for the appellee:
    Possession of land by a person having an interest therein is sufficient to charge all persons with notice of his rights, legal or equitable. Reeves v. Ayers, 38 Ill. 418; McMannis v. Keith, 49 id. 388.

      Where one person purchases real estate with the money of another, a resulting trust arises in favor of the person furnishing the money. Franklin et al. v. McIntyre et al. 23 Ill. 91.
    Where two parties agree that one shall purchase land, which is done, each paying one-half the price, and the deed is made to the one making the purchase, a resulting trust will arise in favor of the other as to an undivided half of the land, notwithstanding he paid his part of the money under an express agreement that the party taking the deed should convey him one-half interest. Smith v. Smith, 85 Ill. 189.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Thomas Garrity exhibited his bill in chancery in the Greene circuit court, against Anthony McNamara and others, praying for the conveyance to him of a certain ten-acre tract of land therein specifically described. The substance, in brief, of the allegations of the bill is this: On the 23d of April, 1859, Garrity and McNamara agreed, between themselves, to buy a designated forty-acre tract of. land of one Davidson. Garrity was to pay one-fourth of the purchase money, and McNamara was to pay the other three-fourths thereof, and one-fourth of the land, in a ten-acre strip off the west side thereof, was to belong to Garrity, and the balance was to belong to McNamara. Davidson was to deed the land to McNamara, and McNamara was To secure the payment of the purchase money by a mortgage back to him on the land; and when the purchase money should all be paid, McNamara was to convey to Garrity his ten acres of the tract. The, deed "and mortgage were executed, at that date, in conformity with this agreement. Garrity promptly paid one-fourth of the purchase money, and with the consent of McNamara took possession of his ten acres, fenced and cleared the same, and thenceforth has had the actual and exclusive possession thereof, and used and cultivated it, until the filing of the bill,—a period of more than twenty years. The mortgage has been fully paid and satisfied, and McNamara has recently denied Garrity’s right in the ten acres, and now refuses to execute a deed therefor. These allegations were put in issue by the answer. The circuit court, after hearing the evidence, decreed in conformity with the prayer of the bill. Several objections are urged against this decree.

First—It is contended the bill was not framed with the view of having declared and enforced a trust which results or is created by construction, implication, or operation of law; but its real claim was to compel the performance of an alleged parol agreement to convey the land in controversy, and to this the Statute of Frauds, which is pleaded, is a defence. Assuming the frame of the bill to be as thus claimed, we can not yield our assent to the conclusion. The payment of the purchase money, taking possession under the contract, and the making of lasting and valuable improvements,—all of which distinctly appear here from the allegations,—take the case out of the operation of the Statute of Frauds. Blunt v. Tomlin, 27 Ill. 93; Mason v. Bair, 33 id. 194; Keys v. Test, id. 316; Fleming v. Carter, 70 id. 286; Ramsey v. Liston, 25 id. 114. But we are of opinion that the averment that Garrity promptly paid one-fourth of the purchase money may be regarded as equivalent to an allegation that that proportion of the purchase money was paid by him, and used directly in the purchase of the land; and such being its effect, that fact, although it was paid pursuant to a parol agreement, establishes a resulting trust, and brings the case within the rule in Smith v. Smith, 83 Ill. 189. The rule is familiar, and needs no elaboration, if one person purchases land with the money of another, but takes the deed in his own name, a trust results, by operation of law, in favor of the person whose money is used. (Coates v. Woodworth, 13 Ill. 654; Williams v. Brown et al. 14 id. 200.) And such, in effect, is the allegation here. Being a resulting trust, the Statute of Frauds can have no application. Rev. Stat. 1874, chap. 59, sec. 9.

Second—Counsel insist the evidence does not sustain the decree.' There is- some conflict in the evidence, it is true; hut there is evidence sustaining the decree, and it is impossible for us to say the court below erred in giving credence to that evidence. By it it is shown one-fourth of the purchase money for the forty-acre tract was $75. Of that amount McNamara had $72, belonging to Garrity, in his hands when the purchase was made, and used it in making the purchase, and the other $3 Garrity subsequently paid to Davidson in corn. It shows Garrity at once took possession of his ten acres, fenced it, and cleared all of it that was susceptible of - cultivation, erected a cabin upon it, in which he resided for many years, cultivated the land, and in several instances rented it to McNamara, who paid him rent therefor, paid McNamara his proportion of the taxes, and for a period of more than twenty years, and until shortly before the filing of the bill, exercised absolute and exclusive domin-"" ion over it. This possession was sufficient against all the world. Brooks v. Bruyn, 18 Ill. 539 ; Turney v. Chamberlain, 15 id. 271; Fairman v. Beal, 14 id. 244; McLean v. Farden, 61 id. 106.

Third—The final objection urged by counsel is, that Garrity’s claim is barred by limitation. If Garrity had not been in the actual possession of the property, this defence might be -well founded; but the evidence on behalf of Garrity, and to which the court below was authorized to, and must, have given credence, shows that he has been, as we have just seen, in the actual and exclusive possession of the property for more than twenty years. Consequently, at most, McNamara has had, during that time, but the naked legal title. Garrity’s possession has been notice of his rights, and lapse of time, therefore, instead of impairing has confirmed and strengthened them.

Perceiving no cause to disturb the decree below, it is affirmed.

Decree affirmed.


text:
    Champaign County v. Thomas A. Reed.

      Filed at Springfield March 29, 1883.

    1. Taxation—of Illinois Central railroad lands which have been sold by the company, and contract forfeited for non-payment—refunding taxes paid on land not subject to taxation. Where the contract of the Illinois Central Railroad Company for the sale of land given it by the State has been forfeited for non-payment of any part of the deferred payments, and rightfully canceled by that company, such land thereafter in the hands of the company is not subject to taxation, and a person purchasing such land at tax sale after such forfeiture, and paying subsequent taxes thereon, will be entitled to have the payments so made refunded to him, as provided in section 268, chapter 120, of the Revised Statutes, and may recover the same of the county in which the land is situate.
    2. Jurisdiction—when party estopped from questioning. Where a party appealed from an order of the county board in refusing to refund to him taxes paid on land not subject to taxation, and judgment was rendered in his favor by the circuit court, and that judgment, on appeal by the county, was reversed for error and the cause remanded, whereupon a second recovery is had against the county: Held, that on a second appeal this court would not listen to the objection that the circuit court had no jurisdiction of the subject matter.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Francis M. Wright, and Mr. M. W. Matthews, for the appellant:
    There is no substantial difference in the facts of the case as now presented from its presentation to this court at a former term, (100 111. 304,) and if for no other reason, this court should reverse the judgment on the ground that the matters involved can not be reconsidered i-n this manner, and are, in effect, res judicata. Rising v. Carr, 70 Ill. 597; Beveridge v. Park Commissioners, 100 id. 75.
    If the purchase money has all been paid the land is taxable. Champaign County v. Reed, 100 Ill. 306.
    In Illinois Central R. R. Co. v. Goodwin, 94 Ill. 262, the court say: “If the purchase money had all been paid, or it had all been due, and .the contract had not been declared forfeited, then, it may be, a different question would have been presented.” That is the case we have here. This land was taxed in 1867, and subsequent years, when the'purchase money was due, and the contract of sale was not forfeited until June 26, 1877,—ten years afterwards.
    Under the provisions of the act of February 16, 1865, there can be no question but what the lots were taxable. It may be conceded that the lots were irregularly sold for taxes, but this gave the board no power in the premises, if the assess^ ment was authorized by law.
    That act is not unconstitutional, as its object is to reach the interest of the purchaser of the company,—not the company itself.
    The circuit court has no power, on appeal, to exercise the functions of the county board, under the provisions of section 268, chapter 126, of the Revised Statutes.
    Mr. J. W. Sim, for the appellee:
    In this record it appears that the purchase money of the land had not been paid, and for want of such payment the sale has been declared forfeited, which fact did not appear when the case was here before.
    It is claimed that no appeal lies from the county board to the circuit court. Upon this point we refer to section 35, chapter 34, Rev. Stat. 1874.

      Where land not taxable is sold for taxes, section 268, chapter 120, of the Revised Statutes, makes provision for the refunding by the county of such money on the application of the person paying the same; and the county board being satisfied of the facts, shall cause the State and county taxes to be refunded, etc., clearly implying that the board sits as a court in the investigation of the claim, and if so, an appeal undoubtedly lies, under section 35, chapter 34, above cited.
    That the lands of this railway company are exempt from taxation, see Illinois Central R. R. Co. v. McLean County, 17 Ill. 291; Newstadt v. Illinois Central R. R. Co. 31 id. 484; Illinois Central R. R. Co. v. Irwin, 72 id. 452; Illinois Central R. R. Co. v. Goodwin, 94 id. 262.
   Per Curiam :

The facts of this case are sufficiently stated in the opinion of this court in the same case, reported in 100 111. 307. The judgment was there reversed and the cause remanded because it did not sufficiently appear from the record that the purchase money had not been paid, and that the contract for the sale of the land by the Illinois Central railroad, to John C. Smith, had been forfeited and canceled. It now appears that said contract was, in 1877, forfeited and canceled, and that no part of the principal of the deferred payments was ever paid, and hence, for the reasons stated in the former opinion, the land in question was not subject to taxation. Not being subject to taxation, Reed, who purchased the same at a tax sale, and who has since paid taxes, thereon, is entitled to be refunded the same, as provided by section 268, chapter 120, Revised Statutes of Illinois. Application was made to the county board by Reed for the repayment to him, as provided in section 35, chapter 34, of the Revised Statutes. His claim being disallowed, he appealed, as provided in that statute, to the circuit court. That court entered a judgment for the same, from which an appeal is now taken to this court. In the opinion of this court the judgment of the circuit court is correct.

The point is made that the circuit court did not have jurisdiction of the matter in controversy by appeal. It is now too late to raise that question. That proposition was before this court in the former appeal, and necessarily determined in remanding the case to the circuit court, and we will not now* listen to it upon this second appeal.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


text:
    Charles Hook v. Richard Richeson et al.

      Filed at Mt. Vernon May 7, 1883.

    1. Appeal—decree in vacation—when it becomes a final decree, so that an appeal will lie. Where a cause in chancery is taken under advisement, and a decree entered in vacation, the decree is not such a final decree as to authorize the complainant to proceed under it until after an intervening term of court, so as to afford any one affected by it an opportunity to question its correctness; and being in fieri until after a term of court has intervened, an appeal taken before the next term after it is entered is premature, and must be dismissed.

    2. Same—when prematurely brought, its dismissal no bar to subsequent appeal or writ of error. Where an appeal taken from a decree entered in vacation before the next term of the court, is dismissed as having been prematurely taken, the defendant will still have the right to prosecute another appeal or writ of error after such decree becomes final, at the next term.
    3. Decree in vacation—restraining proceedings under the decree until objections can be heard at the next term. Where the chancellor takes a case under advisement, and renders a decree in vacation as of the term of the hearing, the decree will not be regarded as final until after the succeeding term, and if the complainant is about to proceed at once upon such decree, the judge, upon a proper application, may enter a temporary restraining order until the defendant can have an opportunity, under the statute, of being fully heard upon his objections to the decree.
    Appeal from the Circuit Court of Perry county; the Hon. Geo. W. Wall, Judge, presiding.
    Messrs. Patton & Watson, for the motion.
    Mr. F. M. Youngblood, contra.

       See, also, Owens et al. v. Crossett, 104 Ill. 468.

   Mr. Justice Mulkey

delivered the opinion of the Court:

This is a motion by appellees to dismiss the appeal, on the ground the record was not filed by the second day of the present term, as required by law. The motion is resisted hy appellant on the ground the decree at the time the appeal was taken was not, and is not even now, final.

While it appears from the certified copy of the appeal bond which is before us, that the decree appealed from was rendered at the October term, 1882, nevertheless it is shown by the counter suggestions of appellant, that in point of fact no such decree was rendered at that time, but that the case was then taken under advisement, against the objections of appellant, and that no conclusion was reached in it till about the 17th of February, 1883, when the chancellor having the case in charge prepared and sent in vacation to the clerk of the Perry circuit court, where the cause was pending, a written statement of his findings, with directions to the clerk to enter a decree in the cause in conformity therewith, as of said October term, 1882, which was accordingly done. This decree also authorized any of the parties desiring to do so, to prosecute an appeal therefrom, at any time on or before the 10th day of April then next following, by filing bond as in the decree provided. Appellant having been informed that appellees were about to proceed at once under the decree, with the view of preventing a sale of his land under it, on the 2d of April following the entry of the decree, and before any term of court had intervened, filed the appeal bond in this ease. It is further shown that on the 1st day of May following, it being the second day of the April term, 1883, of said court, and the first and only term of said court after the entry of said decree in vacation, as just stated, the appellant appeared and entered a formal motion in said cause to set aside said decree, and for a new hearing of the cause. Appellees thereupon entered a counter motion to strike appellant’s motion from the files, and from the partial record before us it appears these motions are both now pending in the Perry circuit court.

As the whole of the record is not before us, so as to enable us to verify the truth of appellant’s suggestions, and as they are not denied by appellees, we must, for the purposes of the present motion, accept them as true.

Section 65, chapter 37, of the Bevised Statutes, provides: “When a cause or matter is taken under advisement by a judge of a circuit court, * * * and the cause or matter is decided in vacation, the judgment, decree or order therein may be entered of record in vacation; but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to, at the next term of the court, upon motion filed on or before the second day of the term, of which motion the opposite party or his attorney shall have reasonable notice. If not so set aside or modified, it shall thereupon become final.” Assuming, as we do, the suggestions of appellant to be true, it is manifest from this statute that the decree entered in the cause was not, at the time of taking the appeal, such a final decree as to have authorized the appellees to proceed under it until after an intervening-term of court, so as to have afforded any one to be affected 'by it an opportunity to -question its correctness.

Begarding the decree, then, as merely in fieri until after a term of court has intervened, it follows this appeal was prematurely taken, and ought, for that reason, to be dismissed. Nor do we think the fact the appellees were threatening to proceed at once under the decree, without affording appellant an opportunity to assail it upon the convening of the court, makes any difference in this respect. Doubtless, under the circumstances stated, upon a proper application to the judge, he would have entered a temporary restraining order until appellant could have been fully heard upon his objections to the decree, as provided by the statute. An appeal, under the circumstances, was not the proper remedy. If, on the other hand, the decree is to be regarded as a final decree, for the purposes of an appeal, from the date of its entry, it is clear the appeal would have to be dismissed because the record was not filed in time, ijpr the rule in this respect is inflexible,—so that, in either view, appellees’ motion to dismiss must prevail. But serious hardship can not result to appellant by reason of the allowance of this motion. When the cause is finally disposed of in the circuit court, he may then prosecute an appeal or sue out a writ of error, as he may be advised, if he desires to do so, without being at all prejudiced by the order now made in this cause.

Appeal dismissed.


author: Mr. Chief Justice Scott

text:
    Henry B. Kepley v. Joseph Luke.

      Filed at Mt. Vernon May 7, 1883.

      1. Forcible entry and detainee—title not involved. In the action of forcible entry and detainer, or forcible detainer, the title to the land can not be inquired into for any purpose. The question of title is immaterial. The right to possession is all that is involved or can be determined. Nor is the rule in this regard changed under the statute extending the remedy hy forcible detainer in favor of a purchaser of land at an execution sale, where the possession is withheld from him by the execution debtor.

      2. Appeal—in forcible detainer—no freehold involved. .As a freehold is not involved in an action of forcible detainer, a writ of error does not lie from this court to the trial court to review the proceedings. • Such writ should emanate from the Appellate Court.
    Writ of Error to the County Court of Effingham county; the Hon. Joseph B. Jones, Judge, presiding.
    Mr. Henry B. Kepley, pro se.

    Messrs. Wood Bros., for the defendant in error.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This case comes before this court on a writ of error to the county court of Effingham county. The action is forcible detainer, and was brought 0 by Henry B. Kepley, against Joseph Luke. Plaintiff alleges he is entitled to the 'possession of the land, described in his complaint made before the justice of the peace before whom the action was commenced. On the trial in the justice’s court judgment was rendered in favor of plaintiff, and on defendant’s appeal a trial ele novo was had in the county court, where judgment was rendered for defendant, and plaintiff brings the case directly to this court.

A preliminary question is, whether this court has jurisdiction, in the first instance, to entertain this writ of error, and determine the ease on its merits. Unless a freehold is involved it is clear the writ of error should have been sued out of the Appellate Court of the proper district. No other question is involved that would give this court jurisdiction.

Plaintiff purchased the property in controversy at sheriff’s sale, under an execution against the property of defendant, and hence claims the right of possession as against him. This suit was commenced under the 6th division of section 2 of the act entitled “Forcible Entry and Detainer,” passed in 1861, as the same was amended by the act of 1881, (Session Laws, page 96,) which provides, among other things, that “where any lands or tenements have been conveyed by any grantor in possession, or sold under the judgment or decree of any court of this State, * * * and the party to such judgment or decree * * * refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent,” the action of forcible detainer may be maintained. Prior to the passage of this act, in 1861, it was uniformly held the title to the land could not be inquired into for any purpose in this form of action, and since then this court has frequently decided the rule is the same. Johnson v. Baker, 38 Ill. 98; McCartney v. McMullen, id. 237 ; Huftalin v. Misner, 70 id. 205.; Thompson v. Sornberger, 59 id. 326; Smith v. Hoag, 45 id. 250; McGuirk v. Burry, 93 id. 118.

In Johnson v. Baker, it was said: “As the law stood before the passage of this amendatory act” (the act of 1861) “title could not be inquired into for any purpose in this action. Nor can it now; but the plaintiff claiming the right to recover as a purchaser at a sheriff’s sale must show that his purchase conformed to the law authorizing the officer to sell. To do this he must produce a valid judgment, an execution, and a deed for the premises, on a sale by the sheriff under such a judgment. When this is shown, the- defendant in the execution and judgment will not be permitted to show an outstanding title, or in any manner try the validity of the title.” The other cases cited are to the same effect. It is obvious the title to the land in question is in no way involved. In such cases the title is immaterial. (Brooks v. Bruyn, 18 Ill. 539.) It will be perceived plaintiff only claims in his complaint that he is entitled to the possession of the land, and in that respect it conforms to the statute. The remedy is only given in case “a person is entitled to the possession of lands or tenements.” The immediate right of possession is all that is involved, and the title can not be inquired into for any purpose. That being the case, no freehold is involved, and the writ of error must be dismissed.

Writ of error dismissed.


author: Mr. Justice Sheldon Mr. Chief Justice Scott,

text:
    The Monticello Female Seminary v. The People of the State of Illinois.

      Filed at Mt. Vernon May 7, 1883.

    1. Taxation—seminary buildings and grounds—extent of exemption. The Monticello Female Seminary was originally located upon a tract of eight acres of land, upon which were erected the buildings of the institution. Afterward the corporation acquired three other tracts of land, of forty acres, twenty acres, and fourteen and three-quarter acres. All these tracts are within the common inclosure of the seminary grounds, with dividing fences within that common inclosure. These several tracts are used, a portion for walks and lawns for the exercise and benefit of the scholars, a part for gardening to supply the institution with vegetables, a part for an orchard to supply necessary fruit for the institution, a part for raising feed for stock, for pasturage, and for woodland, all for the exclusive use of the institution, and not “otherwise used with a view to profit:” Held, the lands are exempt from taxation, under the statute of exemption relating to property of institutions of learning.
    2. But a separate block not in the common inclosure, without proof of its situation with respect to the rest of the property, or of what use is made of it, can not be held to be exempt. Ownership alone does not bring it within the statutory exemption.
    Appeal from the County Court of Madison county; the Hon. Michael G-. Dale, Judge, presiding.
    Messrs. Baker & Brenholt, and Messrs. Irwin & Springer, for the appellant,
    cited Northwestern University v. The People, 80 Ill. 333; The same parties, 86 id. 141; and Presbyterian Theological Seminary v. The People, 101 id. 578.
    Mr. J. H. Yager, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an application by the county collector of Madison county for a judgment against four certain tracts of land belonging to and listed in the name of the Monticello Female Seminary, for the unpaid taxes for the year 1881. The courthelow gave judgment against the lands, and the defendant, by appeal, brings the case here for review.

The only question presented by the record is, whether the lands are exempt from taxation.

Article 9, section 3, of the constitution of 1870, provides that such property “as may be used exclusively for agricultural and horticultural societies, for schools, religious, cemetery and charitable purposes, may be exempted from taxation. Such exemption shall be made by general law. ” Accordingly the General Assembly has enacted that “all property of institutions of learning, including the real estate on which the institutions are located, not leased by such institutions, or otherwise used with a view to profit, ” shall be exempt from taxation. Eev. Stat. 1874, p. 857.

The Monticello Female Seminary is an institution of learning, situate at Monticello, about five miles from the city of Alton, adjoining the town of Godfrey, a country place of about one hundred and seventy-five inhabitants. The evidence shows that the institution was originally located upon a tract of land of about eight acres; that since then it has acquired four other tracts of land, of forty acres, twenty acres, fourteen and three-quarter acres, and block 17 in Monticello, which four tracts are the same tracts of land against which the judgment for taxes is sought; that all these four tracts of land, with the exception of block 17, are within the common inclosure of the seminary grounds; that there are dividing fences within that common inclosure, by which a part of the land is used for gardening to supply the institution with vegetables, a part for orchard to supply necessary fruit for the institution, a part for raising corn, oats and hay to feed the necessary stock connected with the institution, part for pasture and woodland to supply the necessary pasturage for cows connected with the institution, and furnishing the wood required for fuel; that for these purposes, and no other, the forty and twenty-acre tracts are exclusively used; that the fourteen and three-quarter acre tract is within the immediate inclosure of the original tract upon which the main buildings of the institution are located; that upon this fourteen and three-quarter acre tract there is a building occupied by the superintendent of the grounds and out-door work of the seminary, and which building is also occupied, when necessary, by the scholars of the institution, and that this tract is laid out in walks, avenues, lawns, etc., for the exercise and benefit of the scholars.

The evidence further shows that all this property is necessary for the proper carrying on of the institution; that- said tracts of land are used exclusively for the purposes of the institution, and that no part of the same has been leased or otherwise used with a view to profit; that it is necessary, in connection with the institution, to have cows to supply milk for the scholars and teachers, all of whom, numbering about 175 persons, reside and live within and upon the grounds of the institution; that horses are required to do the necessary hauling connected with the seminary, and that all tlie hay, corn and oats raised on the place go to the feeding of the stock thereon; that nothing is ever sold off the premises, and that what is raised is but a partial supply for the institution; that the object of the institution is, as far as possible, to make it a self-sustaining one, and that what is realized over and above actual expenses is used as a fund for the education of indigent females.

We do not see why the facts of this case do not bring these lands within the very words of the exemption from taxation of the constitution, and the legislation upon the subject. They form one connected body of land, upon which the seminary buildings are situated. They are not lands which are leased by the institution or otherwise used with a view to profit, but they are used strictly in the carrying on of this seminary of learning, and are used exclusively for that purpose, and we think they should be held, under the statute, to be exempt from taxation, This, however, is with the exception of block 17. The proof seems to be silent as to its situation with respect to the rest of the property, and as to what use is made of it. All the case made in regard thereto is ownership, merely, by the institution. That alone does not exempt from taxation.

The judgment, except as to block 17, is reversed, and the cause remanded.

Judgment reversed,

Mr. Chief Justice Scott,

dissenting:

Dissenting, as I do, from the conclusion reached by a majority of the court, the public importance of the questions involved would seem to justify me in expressing my views at length of the whole case.

The Monticello Female Seminary is a corporation created by a special charter granted by the legislature of the State in 1843. It is “an institution of learning,” in the sense those terms are used in the statute. Originally the corporation owned about eight acres of land. It is upon this tract the principal buildings are situated. Since the original buildings were erected the corporation has acquired four other distinct tracts of land, all contiguous to the tract it first owned, and all join it, except, perhaps, block 17. The record does not disclose whether block 17 joins the original tract or not. These four tracts of land were all assessed for taxation for the year 1881, in like manner as other real property was assessed for that year. The taxes not having been paid the property was returned delinquent, and the county collector made application to the county court for judgment against v such lands. The corporation appeared and filed objections to rendering any judgment against lands owned by it, as follows: First, because the defendant is an institution of learning; second, because all the property of the defendant institution, including the real estate on which the same is located, is used exclusively for the interests of the institution, and is not leased by said institution, or otherwise used with a view to profit; and third, because the property, real and personal, of the defendant institution is exempt from taxation under section 2 of the revenue laws of the State of Illinois. All the objections taken were overruled by the court,..and judgment rendered against the lands for the taxes due thereon, together with costs. The ease is brought to this court by the objector.

There is no disagreement as to the facts of this case, and as the law applicable in such cases has been settled by the previous decisions of this court, it would seem there could be no need of much discussion. Northwestern University v. The People, 80 Ill. 333; Northwestern University v. The People, 86 id. 141; Presbyterian Theological Seminary v. The People, 101 id. 578. It is settled by these decisions that lands belonging to an institution of learning, upon which the buildings or “institutions” are not located, and which are not shown to be “used exclusively” for the interests of the corporation, are subject to taxation, as is the property of the citizen, and it makes no difference such lands might be leased and the profits devoted to the proper purposes of the corporation. Section 3, article 9, of the constitution, provides that property, both real and personal, “used exclusively” for certain charitable purposes enumerated, may be exempted from taxation. Accordingly the General Assembly has enacted, that among property exempted from taxation is “all property of institutions of learning, including the real estate on which the' institutions are located, not leased by such institutions, or otherwise used with a view to profit. ” It is under this clause of the statute the objecting corporation seeks exemption from taxation. It is proper the statute cited should be read in connection with the constitution on the same subject, and if there is any conflict the statute will be construed as conforming to the constitution. As was said in The Theological Seminary v. The People, it must therefore be understood the legislature only intended to exempt such property of institutions of learning as “may be used exclusively” for the objects and purposes of such institutions. The statute is imperative that lands belonging to institutions of learning, to be exempt from taxation, shall not be “leased by such institutions, or otherwise used with a view to profit. ” Keeping this construction of the statute in mind, the ease presents no serious difficulty.

As has been seen, the original grounds belonging to the corporation, upon which its principal buildings are situated, consisted of about eight acres. This tract has never been listed for taxation. It is conceded it is exempt. The tracts of land assessed, of which complaint is made, have since been acquired by the corporation. The exact location of block 17 does not appear from anything in the record, nor does it appear what use, if any, is made of it. It would seem to be clear this tract is subject to taxation as is other property. There is no proof it is used for educational purposes, or for the use of the institution in any manner whatever. All that is shown is, this block of land is owned by the corporation, and there is, and can be, no reason assigned why it is not subject to taxation.

There are two other tracts of land, one consisting of forty acres and the other of twenty acres, adjoining the original tract on which the seminary buildings are located, and only separated from it by division fences, that are used by the objector for pasturage, and for raising ordinary farm and garden products. The pasturage is used exclusively for horses and cows belonging to objector, and whatever hay, oats or corn is raised on these farm lands is fed to the stock. Nothing is sold from the premises. Connected with the institution there are about one hundred and seventy-five persons,— scholars, teachers and employés. The teachers and scholars are boarded in the seminary building, and the milk from the cows kept on these lands is used on the table and otherwise, as is done in families. The horses, kept in the same way, are used for conveying teachers, scholars and others to and from the station at the railroad, distant about three-fourths of a mile, and for hauling coal, and other work necessary to be done about the premises. Farm and garden products are raised that persons having charge of the institution may have the benefit of them. It is shown it is more profitable to do so than to depend on the market for needed supplies. What else is all this but using these lands “with a view to profit, ” within the meaning of the statute ? Using lands for pasturage and raising ordinary farm and garden products is not the “exclusive” use of such lands for the purposes of institutions of learning. It was certainly never intended by the legislature to exempt farms, either large or small, owned by institutions of learning, from taxation, although the profits derived therefrom might be used in the interests of such institutions, and the statute will bear no such construction. The General Assembly has manifested no intention to exempt farm lands belonging to institutions of learning from taxation. Exemptions to that extent would come within constitutional restrictions, and would, for that reason, be inoperative. The utmost the legislature has done is to exempt from taxation the lands on which the buildings or institutions are located, and which are used “exclusively” foi* the purposes of an institution of learning, and “not leased by such institution, or otherwise used with a view to profit,” and such exemption should not be enlarged by judicial construction. Of course these lands are not “leased” by the institution, but where they are used for raising the ordinary farm and garden products upon, I do not understand how it is possible to say they are not “used with a view to profit. ” It can only be done by arbitrarily saying so, without assigning any reason for the conclusion. As was said in The Northwestern University v. The People, supra: “An accurate description of the property, the tax upon which is in controversy, would seem to be, ‘property used for profit for the benefit of the university.’ ” It was held in that case that property to be used in farming, for manufacturing, or in trades, is property for farming, for manufacturing or for trade, and the purposes to which the resulting profits may be devoted does not change its character, and that, notwithstanding the “resulting profits” might be used for the benefit of an institution of learning, the property was not exempt from taxation under the statute. All the previous decisions of this court seem to be ignored in the opinion of a majority of the court, and not the slightest attention is paid to them. The decision of the county court conformed to the previous decisions of this court, and now its decision is reversed, and for what reason I am unable to discover. There ought to be some stability in the decisions of this, court, and when the constitution and a statute on any given subject have received a construction, that construction should not be departed from except for the most cogent reasons. So far as these tracts are concerned, I am also of opinion they are subject to taxation.

As respects the other tract assessed, consisting of fourteen and three-fourths acres, I concur with the majority of the court that it is not subject to taxation. It is “not leased, or otherwise used with a view to profit. ” It is used “exclusively” for the purposes of the institution, as much as is the smaller tract upon which the principal buildings are located.

In the views expressed in this dissenting opinion I am authorized to say that Mr. Justice Walker and Mr. Justice ScHOLFIBLD COnCUl'.


text:
    Anna Bach et al. v. Thomas Ammons.

      Filed at Mt. Vernon May 7, 1883.

    1. Stock sunning at large—of elections in respect thereto—by counties, and by towns, or other legal subdivisions. A county, after the adoption of township organization, although a number of the towns of the county have already adopted the Stock law, prohibiting stock from running at large, may vote upon the question of Stock law as a county.
    2. Towns that have adopted the Stock law as towns, can vote again on that question at a county election, within five years from the date of their having voted to restrain stock in such towns.
    3. The act known as the “ Stock law, ” expressly provides for two kinds of elections,—one to be held by counties, as such, and the other by certain legal subdivisions of the county, namely: precincts, townships, incorporated cities, villages and towns.
    4. Where an election is held under the act by the county, resulting in favor of restraining cattle from running at large, such vote is binding on the county, and every precinct, township or other integral part thereof, for a period of five years, without regard to whether such integral subdivision voted for or against the law. In such ease there is no power in the county, or in any subdivision thereof, to call or hold another election for the purpose of reconsidering the question until after the expiration of five years.
    5. But if, at such county election, a majority of the votes cast are in favor of stock running at large, the county may, from year to year, resubmit the question until a majority vote is obtained in favor of the prohibition. And the vote at such county election resulting in permitting stock to run at large will only be binding on such townships, precincts, etc., as vote that way, and the Stock law, prohibiting stock from running at large, will nevertheless be in full force and effect in such towns, precincts, etc., as vote for its adoption.
    6. Moreover, so long as the county votes against the law, or in favor of stock running at large, any township or precinct may, under section 5, call an election for the purpose of submitting the question again to the voters thereof, and this may be done without regard to how such town or precinct voted at the county election; and if a majority of the votes cast at such election is against adopting the law, the question may be again submitted to the voters of such town or precinct until the law is adopted, after which such town or precinct can not resubmit it again until after the expiration of five years.

      7. If, however, in the meantime a county election is legally called to vote on the question, such town or precinct adopting the law will have the same right to vote upon the question as every other town or precinct, notwithstanding five years may not have elapsed since such town or precinct election; and should its vote at such county election be again in favor of the law, its provisions will continue to be in force in such precinct or town, notwithstanding a majority of the county may have voted against it.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Clinton county; the Hon. George W. Wall, Judge, presiding.
    Messrs. Van Hoorebeke & Ford, for the appellants.
    Messrs. Murray & Andrews, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The trespass complained of in this ease consists of an entry by appellants’ cattle into an uninclosed wheat field belonging to appellee, and the right of recovery depends upon whether, under the circumstances disclosed by the record; appellee was legally bound to maintain a fence around the premises. Whether any such legal obligation existed or not, of course depends upon the several provisions of our statute relating to stock running at large.

The facts in this case, as stipulated by the parties, are, in substance, as follows: At a county election in November, 1872, a majority of the legal voters of Clinton county voted in favor of permitting stock to run at large. In 1874 the county adopted township organization. In 1882 the question was again submitted to the people of the county, at the regular county election, resulting in a majority of 263 against stock running at large. It appears, however, that between the adoption of township organization in 1874, and the general county election in 1882, six of the townships of the county, under the 6th section of the act, severally held elections, resulting in the adoption of the Stock law,—or, in other words, in prohibiting stock from running at large. The elections in three of these townships were held more than five years before the general election by the county in 1882, and the other three in less than five years before that election. Excluding the votes of these six townships, the county, at the election in 1882, gave a majority of 549 against the law, —or, in other words, in favor of stock running at large; but by merely excluding the votes of the three townships which did not hold elections within the five years, the majority is only 89. On the other hand, if the vote of all these townships is taken into the estimate, there is, as before stated, a majority in the county of 263 for the law,—that is, in favor of restraining stock from running at large. Santa Fe, the township in which the alleged trespass occurred, voted at the county election in 1882 in favor of stock running at large, and has never voted any other way.

On the foregoing state of facts the following questions are submitted for our determination: First, can the county, after adopting township organization, and a number of towns of said county having adopted Stock law, vote upon the question of Stock law, as a county; second, can towns that have adopted Stock law, as towns, again vote upon that question at a county election within five years from the date of their having voted to restrain stock in such towns. These questions practically amount to the same thing, and must both be answered in the affirmative.

This whole subject is regulated and governed by sections from 1 to 7, inclusive, of chapter 8, of the Revised Statutes, entitled “An act to revise the law in relation to permitting animals to run at large, ” commonly called the Stock law. The 1st section contains a general prohibition against owners of stock permitting them to run at large in this State, except when authorized by the provisions of that act. The 2d section provides for submitting the question whether stock shall be permitted to run at large in any particular county of the State, to a vote of the people of such county. The 3d section prescribes the form of the ballots, the manner of holding elections, canvassing the returns, etc. Sections from 4 to 7, inclusive, are as follows:

“Sec. 4. If a majority of all the votes cast in the county at such election shall be in favor of domestic animals, or any species thereof, running at large, it shall be lawful in such county for domestic animals, or any species thereof, to run at large: Provided, that if at any such election the vote in any precinct in counties not under township organization, or any town in counties under township organization, or in any incorporated city, village or town in any county, shall be against domestic animals, or any species thereof, running at large, it shall not be lawful for such animals to run at large in such precinct, or town, or incorporated city, village or town.
“Sec. 5. In any county wherein animals, or any species thereof, are allowed to run at large, pursuant to any vote heretofore had- or which may hereafter be had, on the petition of twenty legal voters of any precinct, if such county is not under township organization, or town, if such county is under township organization, or any incorporated city, village or town, in either case, being filed with the county clerk of such county, a vote may be taken in such precinct, etc., in the manner provided in this act; and if a majority of the votes cast shall be against such animals running at large, then it shall not be lawful for them to run at large in such precinct, etc. The vote provided for in this section may be taken in such precinct, etc., whether it shall previously have voted against or in favor of such animals running at large therein.
“Sec. 6. This act shall not be so construed as to prohibit the running at large of domestic animals in any county or town, etc., where the same is allowed pursuant to an election held by virtue of any law in force at the time this act shall take effect.
“See. 7. Where, in any county, town, etc., domestic animals shall have been restrained from running at large, and such county, town, etc.,_ shall vote to permit such animals to again run at large therein, such vote shall not take effect so as to permit such animals to run at large within one year after the election: Provided, that no vote to permit such animals to again run at large in any county, town, etc., where the same have been restrained by any election after the adoption of this act, shall be taken within five years after such restraining. ”

Our view of these several provisions of the statute is in substance this: The act expressly provides for two kinds of elections, one to be held by counties, the other by certain legal subdivisions of the county, namely, precincts, townships, incorporated cities, villages and towns. The rights of the inhabitants in one of these integral parts of the county, under an election held therein, are, necessarily, under certain circumstances, subordinate to the rights of the people of the county in general, under an election held by the entire county. Where an election is held under the act by the county, resulting in favor of restraining cattle from running at large, such vote is binding on the county, and every precinct, township or other integral part thereof, for a period of five years, without regard to whether such integral subdivision voted for or against the law. In such case there is no power in the county, or in any subdivision thereof, to call or hold another election for the purpose of reconsidering the question until after the expiration of five years. On the other hand, if, at such county election, a majority of the votes east are in favor of stock running at large, or, in other words, are against adopting the law, the county may, from year to year, resubmit the question, until a majority vote is obtained in favor of it. Moreover, the vote at any such county election resulting in permitting stock to run at large, will only be binding on such townships, precincts, etc., as vote that way. In such case, notwithstanding the vote of the majority of the county is against enforcing the Stock law, it will, nevertheless, be in full force and effect in such towns, precincts, etc., as vote for its adoption.

Moreover, so long as the county votes against the law, or, in other words, in favor of* stock running at large, any township or precinct may, under section 5, call an election for the purpose of submitting the question again to the voters thereof, and this may be done without regard to how such town or precinct voted at the county election; and if a majority of the votes cast at such election is against adopting the .law, the question may be again, from year to year, resubmitted to the voters of such town or precinct until the law is adopted, after which such town or precinct can not resubmit it again until after the expiration of five years. If, however, in the meantime, a county election is legally called to vote upon the question, such town or precinct so adopting the law will have the same right to vote upon the question as any other town or precinct, notwithstanding five years may not have elapsed since such town or precinct election; and should its vote at such county election be again in favor of the law, its provisions will continue to be in force in such precinct or town, notwithstanding a majority of the county may have voted against it, while, on the other hand, if a majority of the county should have voted for the law, the same would, as we have already seen, have become operative in such town or precinct although a majority of the legal voters thereof may have voted the other way.

It will be thus seen that it was clearly the intention of the legislature to favor the adoption of the law, as far as it possibly could, without depriving the people of the right to vote upon the question altogether,—and so it was held in Vogt v. Dunley et al. 97 Ill. 424.

We see nothing in the act sustaining the view that a county, after having adopted township organization, and some of the townships composing it have voted in favor of the law, is precluded from again submitting the question to a vote of the entire county. The very words of the act seem to authorize a vote by the county under just such a contingency. ' Nor can we give our sanction to the view that in such case the vote should be confined to such precincts or towns, etc., as have not, by a previous vote, adopted the law, whether such vote was more or less than five years before such county election. County election, by its very terms, implies an election at which every legal voter of the county has a right to vote, if he thinks proper' to do so. It follows, therefore, that an election at which the voters of one or more precincts or townships of the county are excluded from voting, can not properly be considered a county election.

The judgment will he affirmed.

Judgment affirmed.


author: Per Curiam:

text:
    The People of the State of Illinois v. The St. Louis and Cairo Railroad Company.

      Filed at Springfield May 9, 1883.

      Appeal—in suit against a railroad company for unjust discrimination—to wliat court. An action of debt, brought by the State’s attorney in the circuit court, against a railroad company, for the recovery of penalties for alleged extortion and unjust discrimination, which is dismissed by the court, not being a criminal case above the grade of a misdemeanor, and not involving á franchise, or freehold, or the validity of a statute, or construction of the constitution, and not relating to the revenue, and the State not being interested in it, as a party or otherwise, when the only question involved is the right of the State’s attorney to bring the suit, no appeal lies directly to this court. In such case the appeal should be to the Appellate Court.
    Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.

      Mr. James McCartney, Attorney General, Mr. J. M. Damron, State’s Attorney, and Mr. Angus Leek, for the People.
    Messrs. Judd & Whitehouse, for the appellee.
   Per Curiam:

This was an action of debt, commenced in the circuit court of Alexander county by the State’s attorney of that county, in the name of the People of the State of Illinois, against the St. Louis and Cairo Railroad Company, for the recovery of penalties for alleged extortion and unjust discrimination, in violation of the “Act to prevent extortion and unjust discrimination,” etc., by railroad companies, passed May 2, 1873. (Rev. Stat. 1874, p. 816.) The circuit court, on motion by the defendant, dismissed the case, on the ground of want of authority in the State’s attorney, of his own motion, to bring the suit, and the plaintiff took this appeal directly to this court.

The appeal must be dismissed for want of jurisdiction in this court to entertain it. The appeal should have been taken to the Appellate Court. The case not being a criminal case above the grade of a misdemeanor, and it not involving a franchise, or freehold, or the validity of a statute, or construction of the constitution, and not relating to the revenue, and the State not being interested in it; as a party or otherwise, it is not one of the cases in which an appeal may be taken directly to this court. Laws of 1879, p. 222.

The appeal is dismissed, with leave to appellant to withdraw the transcript of the record, and to file the same in the Appellate Court, if so desired.

Appeal dismissed.