author: Mr. Justice Magruder

text:
    Lizzie F. Alexander et al. v. George G. Merrick et al.

      Filed at Ottawa September 26, 1887.

    1. Tax sale of realty—on application of a city collector-—void. A judgment against real estate for city taxes, in 1871, for taxes of 1870, on the application of the city collector, and all proceedings thereunder, including precept, sale and certificate of purchase, are void, and no tax deed can be-issued on such a sale.
    2. Cloud upon title—void tax sale—setting aside wpon terms. In accordance with the principle that a party seeking equity must do equity, a court of equity, in setting aside a void tax sale as a cloud upon title, will" require the complainant to refund the taxes paid by the holders of the certificates of purchase on their purchase, and succeeding taxes, to. protect their purchase.
    3. So on bill to set aside or cancel tax certificates of purchase as being clouds on the complainant’s title, the correct practice is for the court to-impose equitable terms to the relief, as, the payment of the money paid for the certificates of purchase and subsequent taxes, with interest thereon, and in case complainant declines or refuses to comply with such terms, to-dismiss his bill.
    4. On bill by the purchaser of lots by warranty deed, against his grantors and the holders of certificates of purchase at tax sales, to set aside such certificates as clouds on the title, the court found the tax sales to be void, and perpetually enjoined the issuance of a deed thereon, and decreed that the grantors warranting the title should, within a time fixed, pay to the-holders of the certificates the taxes paid under their purchases, with six per cent interest, and on default, that execution issue therefor: Held, that the decree setting aside the sales, and enjoining the making of deeds on the same without payment of the taxes, etc., was erroneous. The holders of the certificates should not be left to the risk of the solvency of the complainant’s grantors.
    5. In such a case, a provision in the 'decree that after payment by the complainant of the taxes advanced by the holders of the certificates of purchase, or their assignors, with interest, he should have execution therefor against his grantors who had warranted the title to be free of tax liens, would not have been objectionable.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. Allan C. Story, for the appellants W. K. and H. C. Eeed:
    The hill being brought to redeem from previous tax sales, only one of two decrees was legally possible: First, to grant the relief prayed for, upon payment by the complainant of the amount found by the court to be due to each defendant, for taxes admitted in the bill to have been paid upon said premises ; or secondly, to dismiss the bill at the costs of Merrick, leaving all parties in statu quo. This is the rule uniformly recognized by the Supreme Court in similar cases, and to which there is no exception. Barnett v. Cline, 60 Ill. 205; Phelps v. Harding, 87 id. 442; Farwell v. Harding, 96 id. 32 ; Moore v. Wayman, 107 id. 192; Smith v. Hutchinson, 108 id. 662; Gage v. Hervey, Ill id. 305; Gage v. Nichols, 112 id. 269.
    It is based upon the principle, that the complainant in such a bill is the actor, and invokes the aid of a court of equity to clear up or remove something which appears to be a claim upon his land, but for the reasons alleged is unsubstantial,— a mere cloud; and equity only acts when it is equitable so to do, always requiring complainant to do what is equitable, as a condition precedent to granting his prayer.
    It was competent for the court below, after granting Merrick’s prayer for relief against these tax claims, conditioned upon his first refunding the money found to have been paid by the appellants, respectively, in the same proceeding, and to avoid circuity of action, to decree the amount so paid against any warrantor of complainant properly before the court, and thus enforce the covenants of warranty -contained in the deeds to complainant. In this attempt to decree the payment of the money from the Montgomerys, the primary and indispensable condition of the relief,—viz., that this money must first be paid by Merrick,—was lost sight of by the court below. That court kept the equitable word of promise to the ear, and broke it to the hope. Reed v. Tyler, 56 Ill. 288; Moore v. Wayman, 107 id. 192.
    Mr. James E. Munroe, and Mr. Ira J. Geer, for the appellants the heirs of John Forsythe, deceased:
    It is well settled by the decisions of this court, that equity will not relieve against sales of land for taxes or special assessments, in cases where the tax or assessment was a lien on the land sold, except upon payment to the purchaser, or his assignee, of the amount of the tax or assessment to be paid, with legal interest. This has been the unquestioned law of this State ever since the case of Reed v. Tyler, 56 Ill. 288, was decided, in 1870. Barnett v. Cline, 60 Ill. 205; Phelps v. Harding, 87 id. 442; Farwell v. Harding, 96 id. 32; Moore v. Wayman, 107 id. 192; Gage v. Nichols, 112 id. 269.
    The certificates were, by the decree, declared void, and removed as against the complainant, and all that Forsythe obtained by way of reimbursement, was a decree against the Montgomerys, who were and are insolvent. The actual doing of equity is the condition imposed upon one seeking equity, and if he fails to do equity within a time limited, his bill will be dismissed. Farwell v. Harding, 96 Ill. 32; Reed v. Tyler, 56 id. 288; Moore v. Wayman, 107 id. 192.
    Mr. Edward. Eoby, and Messrs. Boutell & Waterman, for the appellee Merrick:
    The principle, that he who asks equity must do equity, is carried as far as it will bear, when a debtor is required to pay a debt he owes as the condition of removing a cloud unlawfully placed on the title to his land. The taxes constituted a debt of Waller. To make Merrick pay the debt of another, as a condition to relief, is to compel him to buy justice. Wilson v. McKenna, 52 Ill. 48.

      The law is, that in such cases as this at bar, the plaintiff may have his protection against a threatened trespass, without being required to pay another man’s debt. The decisions are, that no condition will be imposed on granting the relief. Wilmerton v. Phillips, 103 Ill. 78; Conwell v. Watkins, 71 id. 489; Railroad Co. v. Mathers, 104 id. 257; Clevinger v. Ross, 109 id. 349; Moore v. Wayman, 107 id. 192.
    The tax deed, if taken out, would have clouded a title till then clear, and inflict irreparable injury on Merrick. Finch v. Martin, 19 Ill. 105; Reed v. Tyler, 56 id. 291; Hodgden v. Guttery, 58 id. 431.
    The city claims no lien, and no poiver was ever given to the city to assign the right to collect taxes or assessments. No person can bring a suit for any of them. Farwell v. Harding, 96 Ill. 37.
    Messrs. Schuyler & Krembr, for the appellee Mrs. Forsman.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed in the circuit court of Cook county on July '9, 1873, by George G. Merrick, one of the appellees, against Henry Waller, Emily J. Montgomery and James Montgomery, her husband, the city of Chicago, Joseph Pollock county clerk, John Forsythe and' William Kelsey Eeed, for the purpose of cancelling certain sales for taxes of the lots described in the bill and situated in the city of Chicago, and compelling the ■surrender of the certificates of such sales, and enjoining the county clerk from issuing deeds thereon. The city answered, setting up that it had no claim against the property and made no claim of any lien thereon for any general or special taxes, assessments or water rates for any year prior to 1872. The bill was taken for confessed against Pollock, W. K. Eeed and the Montgomerys.

The bill alleges, that September 1, 1870, Waller conveyed the lots to Emily J. Montgomery by warranty deed, therein covenanting and warranting them to he free from liens; that on July 14, 1871, Emily J. and James Montgomery conveyed the lots to Merrick, the complainant, for $85,000 by warranty deed, and therein covenanted and warranted that the lands-were free from liens, taxes and assessments except for the-year 1871; that, on July 5, 1871, the lands were sold for $475.60 for the general city taxes of 1870 to W. K. Eeed, and were again sold on July 7, 1871, to said Eeed for $27.36 for’ a special assessment for lamp-posts on Adams street; that June 22, 1871, the lands were sold for'$695.61 to C. Walsh for a special assessment for curbing, filling and paving West Adams street, and were again sold on June 24, 1871, to John Forsythe for $41.28, amount due the city for special assessment for lamp-posts on Paulina street; that certificates of sale were issued by the city collector to said purchasers; that Walsh assigned his certificate to Forsythe and that Forsythe and W. K. Eeed are the holders of the certificates; that said sales were made by the city collector of the city of Chicago, and were null and void, as being illegal and in violation of the-constitution; that the city collector made reports and applications to the Superior Court of Cook county at its March term, 1871, for judgment for city taxes and special assessments of the year 1870, and that judgment was entered thereon by said court and precepts were issued to the city collector and sales were made by him in pursuance thereof; that the judgments so entered, if entered, were void for want of jurisdiction; that the records of the Superior Court were burned in the fire of 1871; that Forsythe and Eeed threaten to apply to the county clerk for tax deeds upon said certificates and that the county clerk threatens to make such deeds; that the issue of such deeds by the clerk will cause complainant irreparable injury and depreciate the value of his land; that the sales so made for taxes and assessments are grievous clouds and incumbrances upon the title and ought to be removed; the prayer is, that the title may he cleared from said sales and that the cloud created thereby may be removed.

Waller and Forsythe filed answers. In February, 1877, Henry C. Eeed was granted leave, upon his petition therefor, to be made a defendant and to come in and answer. His answer was filed June 14,1877, and sets up that, on September 12, 1871, W. K. Eeed paid §243.34 for the State, county, town and school taxes for 1870 to protect his certificates, and that, on July 1, 1872, W. K. Eeed assigned his two certificates to H. 0. Eeed, the present holder thereof. Eeplieations were filed to the answers of Waller, Forsythe and H. C. Eeed. Forsythe and Eeed claimed in their answers, that, if the sales were set aside, complainant should be required to pay them the amounts advanced by them with interest. On April 25, 1883, Henry C. Eeed filed a cross-bill, praying for the return of his advances and for an accounting, and offering to surrender his certificates upon being paid the amounts advanced by him with interest.

On July 9, 1883, the circuit court rendered a decree, in which it was, among other things, recited and decreed as follows :

“And it appearing that said several sales were illegal and void, being made by the city collector of the city of Chicago, on pretended judgments obtained on the application of said collector, at the March term of the Superior Court of Cook county, 1871, against the express prohibition of the constitution of the State, and that the county clerk of Cook county is not authorized to issue any deed thereon, and has no power to convey said land or any interest therein because of said several sales, and that any deed or deeds issued by such county clerk, basfed upon said sales, would be unlawful and void, but nevertheless would, on their face, appear to be valid, official acts of such clerk, and would east a great cloud upon the title to said lands, and the issue of such deeds would greatly depreciate their value, therefore it is ordered by the court, that the said injunction be and is hereby made perpetual, and the said ■county clerk and bis successors are hereby distinctly forbidden to issue any deed or deeds upon said sales in said injunction mentioned, or any of them.”

The decree also ordered that the Montgomerys or one of ’them should, within ninety days, pay to one of the masters of the court for the use of Henry C. Reed the amounts so paid out by W. K. Reéd on July 5,1871, and September 12, 1871, amounting, with interest at six per cent up to the date of the decree, to $1234.75, and also the $27.36 paid by W. K. Reed on July 7,1871, amounting, with interest at date of decree, to $46.06, and that the master should pay said sums of $1234.75 and $46.06 to H. C. Reed upon the surrender by him of his two certificates. It was also ordered by the decree, that the Montgomerys or one of them should within ninety days pay to the master for the use of Forsythe the $695.61 and interest at six per cent from June 22, 1871, to date of decree, making $1098.41, and also the $41.25 paid on June 24, 1871, with interest thereon to date of decree, amounting to $61.10, and that the master should pay said sums of $1098.41 and $61.10 to Forsythe upon his cancelling the two certificates of sale, so issued to him.

The decree then concludes as follows:

“It is further decreed, that in case said Emily J. and J ames Montgomery fail to pay to said master said sums of $1234.75, $46.06, $1099.41 and $61.10, making in all $2442.32, with interest thereon from the date of this decree, within ninety ■days from the entry hereof, that execution issue therefor.
“It is further decreed, that if said plaintiff in this suit, his heirs or assigns, do, at any time within twelve months from the date of this decree, pay to said Henry C. Reed said first mentioned sum of $1234.75, with interest from this date, said Reed shall surrender said tax certificate dated July 5, 1871; ■or if said" plaintiff, his heirs or assigns, do, at any time within •twelve months horn this date, pay to said Henry C. Reed said second mentioned sum of $46.06, with interest from this date, said Reed shall surrender said certificate dated July 7, 1871; or[ if said plaintiff, his heirs or assigns, do, at any time within twelve months from the date of this decree, pay to said Forsythe said third mentioned sum of $1099.41, with interest from this date, said Forsythe shall cancel and satisfy said certificate dated June 22,1871, and all claims based thereon; or if said plaintiff do, at any time within twelve months from the date of this decree pay to said Forsythe said fourth mentioned sum of $61.10, with interest from this date, said Forsythe shall cancel and satisfy said certificate dated June 24, 1871, and all claims based thereon; and this decree, for payment of such sums, or either of them, .so paid by plaintiff or his heirs or assigns, shall stand against said James and Emily Montgomery, and be collected from them for the use and benefit of the person or persons so paying; but if said plaintiff, his heirs or assigns, shall elect not to pay said sums, or either of them, within such twelve months, they shall be barred of all right so to pay and demand the surrender of such certificates for which they shall not have paid, as aforesaid.”

The case comes before us by appeal from the judgment of the Appellate Court, which affirmed the decree of the circuit court.

The illegality of the tax sales is admitted by counsel for the heirs and representatives of Forsythe in their brief filed in this court, and is also expressly admitted by the appellant, Henry C. Reed, in his cross-bill filed in the circuit court. There can be no doubt of the invalidity of such sales and of the certificates issued thereon. The judgment of the Superior Court for the delinquent city taxes and assessments of 1870 was rendered upon the application of the city collector of the city of Chicago. Such judgment was unauthorized and void for want of lawful authority on the part of the city collector to make such application under the constitution of this State. Consequently the precept or process issued on the judgment was without proper legal authority. The sales, made thereunder by the city collector and not by a “general officer of the county having authority to receive State and county taxes,” (Const., art. 9, .sec. 4,) were void. The certificates issued by the city collector and held by Beed and Forsythe were illegal and void, and no tax deeds could be lawfully issued thereon. This is in accordance with a number of decisions made by this court. Hills v. Chicago, 60 Ill. 86; Webster v. Chicago, 62 id. 302, and other cases.

But the bill in this case does not attack the city taxes of 1870 or the special assessments for paving and for lamp-posts, as being unjust, illegal, fraudulent or oppressive. So far as appears to the contrary, the taxes and assessments, which were reported to the Superior Court by the city collector, and for the non-payment of which the sales were made, were fair and legal and were just liens upon the property in favor of the city. The money paid by the purchasers at the tax sales was used in paying the city taxes for 1870 and in paying for the paving of Adams street and for the lamp-posts on Adams and Paulina streets. By such use of it the property of complainant was benefited.

The complainant claims that the certificates of sale were clouds upon his title and obstacles in the way of its beneficial enjoyment. He asks a court of equity to dissipate these clouds and remove these obstacles. He, who seeks equity, must do equity. The court below by its decree should have required the complainant to refund the taxes paid by Beed and Forsythe as a condition to granting the relief prayed for. That such a requirement is proper in cases of this kind has been repeatedly held by this court. Phelps v. Harding, 87 HI. 442; Farwell v. Harding, 96 id. 32; Reed v. Tyler, 56 id.; 288; Barnett v. Cline, 60 id. 205; Moore v. Wayman, 107 id. 192; Gage v. Nichols, 112 id. 269.

Although the relief may be granted on condition that complainant pays the money, yet he can not he compelled to pay unless he desires the relief. The correct practice is for the •court to impose equitable terms, and, in case the complainant declines or refuses to comply with those terms, to dismiss his bill. Farwell v. Harding, supra.

The practical effect of the decree in this case is to grant to -the complainant all the relief for which he asks without requiring him to refund the advances made by appellants. The Montgomerys are ordered to pay the money in ninety days, .and, if they do not, execution is directed to be issued against them. If nothing should be realized on the execution, appellants would receive nothing, and yet the decree declares the certificates void and perpetually enjoins the county clerk from ■issuing deeds on them.

The complainant has the option of paying Eeed and Forsythe the amounts due to them within twelve months. If he pays such amounts, he is to have the certificates cancelled and the decree against the Montgomerys is to stand in his favor. If he does not pay such amounts, he is simply debarred •of the right to demand a surrender of the certificates, but he still has a decree in his favor declaring the certificates void and perpetually enjoining the issuance of the tax deeds. It is very manifest, that complainant would not care to get the ■certificates out of his way by paying for them, if the decree .already put them out of the way for him whether he paid for them or not.

We think the court should have decreed the relief asked for upon condition that complainant should pay the amounts found due with interest, and that, if he did not do so within •a certain time, his bill should be dismissed. A provision in the decree that, after such payments had been made by him, he should have execution therefor against the Montgomerys, his grantors, who had warranted the title to be free of tax liens, would not have been objectionable. But the fact, that .he bought the property without actual knowledge of the tax .sales and received a covenant of warranty from his vendors til pit the land was free from tax liens, entitles him to no other or different relief as against the holders of the tax certificates than would have been granted to him if he had been the owner of the property at the time it first became subject to the lien of the taxes and special assessments. . In Phelps v. Hording, supra, the party applying for relief against the tax certificates was not the owner of the land described in such certificates when the sales for taxes took place. It is the complainant and not his grantor, who is asking for the removal of the certificates owned by the appellants. The latter have nothing to do with the rights of the complainant under the covenants of warranty entered into by his grantors.

It is unnecessary to discuss or pass any opinion upon the plea to the writ of error issued from the Appellate Court, as the case must be remanded to the circuit court.

The judgments of the Appellate and circuit courts are reversed and the cause is remanded to the circuit court for further proceedings in conformity with the views here expressed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Board of Supervisors of Macon County v. The People ex rel. Charles M. Caldwell et al.

      Filed at Springfield September 27, 1887.

    1. Bbidges—comity aid—mandamus to enforce it—requisites of petition. A petition for a mandamus, by highway commissioners, to compel a county board to pay one-half the cost of a bridge, must show a compliance, on the part of the relators, with all the conditions and prerequisites imposed by the statute. It should set forth the substance of the petition of the relators to the county board, together with the accompanying estimates, and affidavits showing that the repairs and construction of the approaches were necessary, and not more expensive than was required, and also that the greater part of the levy of sixty cents on the $100, therein averred to have been made, was needed for the ordinary repairs of roads and bridges.

      2. Same—necessity and cost, etc.—who to determine—as between highway commissioners and county boa/rd. The finding of the commissioners of highways that the repair of a bridge in their town, and the construction of approaches thereto, are necessary, and the cost thereof, and also that the greater part of the levy of twenty cents on the @100, levied by them on the property in the town, is needed for the ordinary repairs of roads and bridges, is conclusive on the county board, and also the courts, except in case of a manifest abuse of the discretion reposed in them; and such finding can not he questioned in a proceeding by mandamus, to compel the county board to appropriate one-half of the cost of such bridge and approaches.
    3. On application by commissioners of highways to the county board for aid to build or repair a bridge, it is the right and duty of the latter to determine, in the first place, whether the petition and accompanying estimate and affidavits make out such a case, assuming the facts therein stated to be true, as gives the right to the aid sought; and, secondly, to satisfy itself of the truth of such of the alleged facts as are susceptible of positive verification, and do not involve mere matters of opinion and judgment.

      i. The county board must determine, from their own knowledge or actual investigation, whether the bridge to be built or repaired is at one of the places specified in statute; whether the commissioners have levied a tax of sixty cents, as alleged in the petition; whether the town represented by the commissioners is responsible, in whole or in part, for the proposed work, and whether the cost thereof will amount to more than twenty cents on each $100 worth of taxable property, as shown by the latest assessment roll.
    5. But whether the proposed work is necessary,—that is, whether public-interests and convenience demand it,—or whether the major part of the sixty cents tax levied by the commissioners will be required for the ordinary repairs of roads and bridges, being matters within the discretion and judgment of the commissioners, are questions the truth of which the county board have no right to inquire into or determine. As to these questions, all it has to do is to determine, from the petition, whether the commissioners have acted upon them and decided them in the affirmative.
    Appeal from the Appellate Court for the Third District;—> heard in that court on appeal from the Circuit Court of Macon county; the Hon. James F. Hughes, Judge, presiding.
    This was a petition by the commissioners of highways of Decatur township, against the board of supervisors of Macon county, for a mandamus, to compel said board to appropriate one-half of the cost necessary to the repair of a bridge, and to construct approaches thereto. It was filed October 7, 1885-The petition alleged, in substance, that the relators were commissioners of highways of Decatur township, and that they presented a petition at the September meeting, 1885, of the board of supervisors of Macon county, for aid in constructing and repairing a certain bridge and the approaches thereto, with affidavits showing estimate of cost, and that the same was necessary and not more expensive than needed. It contained a copy of the petition presented to the board of supervisors, which represented it was necessary to repair the Wikoff bridge, on the Sangamon river, and construct approaches thereto, on a public road in said township and county, by means of an embankment or trestle-work; that the town of Decatur was wholly responsible therefor, and that the cost would be, as estimated, $6625; that the latest assessment roll for said town showed valuation of $2,691,509; that outside of the city of Decatur, in said town, the valuation was $407,420; that only one-half of taxes raised in cities for roads and bridges was .available under the law; that the levy for 1885 was for the full amount of sixty cents on each $100; that the major part was needed for ordinary repairs of roads and bridges in the township; that the levy made would raise for the commissioners $8996.78; that said $6625, necessary to expend on said bridge, was more than twenty cents on the $100, etc.; attached estimated cost, as part of petition to the board, and prayed for aid for one-half of the expenses of repair, etc. The petition for mandamus then alleged that relators demanded of the county board an appropriation of said one-half, on condition that the township furnish the other half, and that two persons, etc.; that there was in the county treasury, not otherwise appropriated, a sum sufficient, etc.; that the facts set ■forth in the petition to the said board were true; that the county board refused to make the appropriation, and still so refuse, wherefore relators pray for writ of mandamus, etc.
    The county board answered, giving the following reasons why the writ should not issue:

      First—It was not necessary to construct the bridge, etc., at •a cost of, etc.
    Second—That the levy was not for the full sixty cents on each $100.
    Third—That the major part of levy was not needed for ordinary repairs, etc.
    Fourth,—It did not appear to county board that it was necessary to construct, etc., by means, etc., on a public road, etc., in which the town was wholly responsible, at a cost of more than "twenty cents on the $100, etc., and levy was for sixty cents, "the major part of which was needed for ordinary repairs, .etc., ■otherwise than that petitioners’ petition to the board set out that the same were facts, but that relators did not show or prove the statements in the petition to be true, or offer to prove the same.
    Fifth—The commissioners did not make the levy as required by law; did not levy any “rate, ” but made a pretended levy of a sum in gross, to-wit, $15,549.95, which sum was not a levy for the full sixty cents, etc.
    Sixth—The county board considered said petition, etc., and determined that the levy was not for the full amount of sixty cents, etc.
    Seventh—The county board considered and investigated the petition, etc., and determined it was not necessary to construct, etc., at a cost of more than twenty cents on the $100 on the latest assessment roll, etc.
    The relators filed a demurrer to clauses one, three, four, six and seven of the answer, which the court sustained, and issue was taken on clauses two and five of the answer.
    Messrs. Cbea & Ewing, and Mr. E. P. Tail, for the appellant.
    Mr. W. 0. Johns, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal by the board of supervisors' of Macon county, from a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of said county, awarding a peremptory writ of mandamus to compel said board to provide one-half of the cost and expenses of repairing a certain bridge in Decatur township, and of constructing the approaches thereto, in conformity with a petition of the-commissioners of highways of said town.

The proceeding is based on section 19, chapter 121, of the Devised Statutes, which provides: “When it is necessary to-construct or repair any bridge over a stream, or any approach or approaches thereto, by means of an embankment or trestle-work, on a public road in any town, or on, or near to, or across-a town line, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on the $100 on the latest assessment roll, and the levy of the' road and bridge tax for that year in said town was for the full amount of sixty cents on each $100 allowed by law for the-commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid; and if the foregoing■ . facts shall appear, the county board shall appropriate from the county treasury a sum sufficient to meet one-half the expenses of the said bridge, or other work, on condition that the towu asking aid shall furnish the other half of the required amount. The expenditure of these joint funds shall be made by the commissioners and two persons appointed by the board of supervisors, and any surplus funds appropriated by the county board after the completion of the work shall be paid into, or lapse into, the county treasury: Provided, however, that before any bridge or approaches, as contemplated as above, shall be constructed or repaired under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same, and attach thereto their affidavits that the same is necessary, and will not be made more expensive than is needed for the purpose desired, and such estimate and affidavit shall be filed with the petition.”

It is conceded the petition for the mandamus is in proper form, and that it shows upon its face a compliance, on the part of the commissioners, with all the conditions and prerequisites imposed by the statute to entitle them to the relief sought. To be so, it was necessary to set forth, as it did, the substance of the petition of the commissioners of highways to the board of supervisors, together with the accompanying estimates and affidavits, wherein, among other things, it was represented that the repairs and the construction of the approaches to the bridge were necessary, and were not more expensive than was required, and also that the greater part of the levy of sixty cents on the $100, therein averred to have been made, was needed for the “ordinary repairs of roads and bridges.” These two averments were severally traversed by separate clauses in the answer to the petition for the mandamus. The court sustained •a demurrer to each of them, on the ground that they were not traversable allegations. The cause was then heard before the •court upon a single issue of fact, namely, whether the commissioners of highways had, as stated in their petition, made ■a levy to the full amount of sixty cents on the $100 worth of taxable property in their township. The court, upon due consideration, found this issue for the commissioners, and its finding having been affirmed by the Appellate Court, disposes of that question, so far as tins court is concerned.

It remains to consider whether the Appellate Court erred in sustaining the ruling of the trial court upon the demurrer to the two clauses of the answer in question. We have no doubt •of the correctness of the rulings of the lower courts on both these questions. They involve matters which the legislature, in its wisdom, has committed to the discretion, judgment and determination of the commissioners of highways, and not to the board of supervisors. The latter, therefore, wholly misconceived their legitimate powers and functions when they-attempted, as they did, to revise and reverse the action and determination of the commissioners upon these questions. For-the same reason, it was equally incompetent for the lower ■ courts, or either of them, to review or pass upon them. So the ■ finding of the commissioners upon these questions is equally binding upon this court, except, perhaps, where there has been, a manifest abuse of the discretion which the law has reposed' . in the commissioners, and there is no claim of that kind here. By the issues tendered, respondents simply proposed to re-try-questions which had already been settled by the commissioners, and which, under the law, they alone were authorized to determine.

Upon an application by the commissioners- to the board of supervisors for aid to build or repair a bridge, if is the right and duty of the latter to determine, in the first place; whether-the petition and accompanying estimate and affidavits make out such a case, assuming the- facts therein stated to be true, as entitles the commissioners to the relief prayed; and secondly, to satisfy itself of the truth of such of the alleged facts as are-susceptible of positive verification, and do not involve mere-matter of opinion and judgment. Thus they must determine, from their own knowledge or actual investigation, whether the-bridge to be built or repaired is at one of the places specified: in the statute; whether the commissioners have levied a tax; of sixty cents, as charged in the petition; whether the town-represented by the commissioners is responsible, in whole orín part, for the proposed work, and whether the cost thereof' will amount to more than twenty cents on each $100 worth-of taxable property, as shown by the latest assessment roll. But whether the proposed work is necessary, (that is, whether public interests and convenience demand it,)- or whether the major part of the sixty cents tax levied by the- eommissionerswill be required for the ordinary repair of roads- and. bridges-,. being matters within the discretion and judgment of the commissioners, are questions the truth of which the board of supervisors have no right to inquire into or determine. With respect to these questions, all they have a right to do is to determine, from the petition presented to them, whether the commissioners-have acted upon them and decided them in the affirmative. All questions of a similar character, resting upon like considerations, are to tie regarded in the same way.

The conclusion here reached is in conformity with the previous-decisions of this court. People ex rel. v. Supervisors of Iroquois County, 100 Ill. 640; Town of New Boston v. Supervisors, 110 id. 197.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    Wilkins Seacord v. The People of the State of Illinois.

      Filed at Ottawa September 26, 1887.

    1. Nuisance—indictment therefor—its requisites. Generally, an indictment for a nuisance which charges the offence substantially in the language-of the statute, will be sufficient.
    2. An indictment for such offence will be sufficient if the acts constituting the alleged nuisance be set out with the detail and fullness required in respect of other offences,—that is, that the facts set out shall identify the transaction and affirmatively show prima facie guilt. When a thing is not a nuisance of itself, but becomes so by special circumstances, these must be alleged.
    3. An indictment charging that the defendant, on, etc., at, etc., unlawfully and willfully did cause and suffer the carcasses of divers dead animals, and a large quantity of offal, filth and noisome substances, then and during all the time aforesaid, and there to be collected, deposited and to remain near the dwelling houses of A, B, G, and others, there situate, and being then and', during all the time aforesaid, and there to the prejudice of the said A, B, 0, and others, and to the common nuisance of all the people there lawfully being and abiding, sufficiently describes the offence of nuisance under the first clause of section 221 of division 1 of the Criminal Code.
    4. Same—description of locality of nuisance. In an indictment for ■causing or suffering dead animals, etc., to be collected and remain near the dwellings of others, no other description of the locality of the place other than the venue laid in the proper county is necessary. If, however, the indictment is of a particular building or structure, which is sought to be removed or abated, its location must be set out with particularity; and so, also, where the locality becomes a part of the description of the offence.
    5. Same—of the intent to create a nuisance—whether material. Where a person causes or suffers the carcasses of dead animals to be collected, deposited or to remain in any place to the prejudice of others, he is guilty of an offence under the statute, whether he intended the prejudicial result to others or not. The prejudice to others intended by the statute, which renders the act an indictable nuisarice, is that legal prejudice or injury which would render the defendant liable in a civil action or indictable at common law.
    6. Same—improper mode of operating a lawful business. If it be conceded that the business of operating tanks in rendering dead animals is not of itself a nuisance, or liable to become so, when managed with proper care, yet if the party conducting such business buys or collects more of such dead animals than he can dispose of, and suffers, for a number of days, large quantities of putrid and offensive carcasses to lie exposed at his establishment, to the prejudice and annoyance of those in the neighborhood, he may be convicted of a nuisance. In such case the business is not carried on with proper care.
    7. Same—persons complaining, contributing to the support of business. On indictment of one for carrying on an offensive business, which is a public nuisance, and prejudicial to persons in the neighborhood, the fact that some or all of the persons named in the indictment as being injured, may have voluntarily contributed to the increase or support of the business, will afford no excuse or justification of the defendant in so conducting the business as to make it a nuisance.
    8. Same—as depending on place where business is carried on. In respect of trades and business which generally produce ill effects upon the adjacent owners of property, such as tanneries, smelting works, rendering and soap factories, and the like, denominated prima facie nuisances, the weight of authority seems to be that no place can be held to be suitable and convenient for the exercise of a noxious trade, when injurious results therefrom ensue to others. But in respect of business or trades which produce merely annoyance, producing physical discomfort, which is not hurtful in character,— that is, injurious to health or life,—the rule is not of the same strictness.
    9. Same—public benefit no justification, in respect to nuisances, the law will not balance public conveniences with inconveniences, and it makes no difference that the work is really in the interest of society or necessary for the preservation of the public health. The fact that the thing complained of furnishes, upon the whole, a greater convenience to the public than it takes away, is no answer to an indictment for nuisance.
    10. Same—evidence to show offensive character of business. On the trial of one indicted for a nuisance in the collection of dead hogs, etc., at the defendant’s rendering tank, any evidence tending to establish that the carcasses or offal or filth collected and deposited at the tank were noisome and prejudicial to others, is proper. It is proper to allow witnesses to testify as to the condition of such carcasses while being hauled to the tank, and that such carcasses, and the wagons in which they were hauled, were offensive.
    11. Criminal law—of the theory that many who cure guilty should escape rather than one innocent man should suffer. An instruction in a criminal case is properly refused which asserts that the policy of the law is, that it is better that ninety-and-nine, or any other number of guilty persons, should escape, than that one innocent man should be convicted, and that it is not sufficient to authorize a conviction that the greater weight or preponderance of the evidence supports the allegations of the indictment.
    12. Instruction—whether subject to objection of singling out facts. On the trial of one for a public nuisance, the court instructed the jury, for the People, that it was no defence that the defendant’s business was a benefit to persons having dead hogs, or that certain of the People’s witnesses had sold dead animals to the defendant to be rendered, and the like: Held, that the instruction was not subject to the objection that it singled out and made prominent isolated facts.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge,' presiding.
    Plaintiff in error was, at the September term, 1885, of the Warren circuit court, indicted for nuisance. At the January term, 1886, a motion to quash the indictment was overruled, and a trial had, resulting in a verdict of guilty. Motions for new trial and in arrest were severally overruled, and sentence on the verdict entered, imposing a fine of $50, and judgment for the same, and costs. The judgment of the circuit court was affirmed by the Appellate Court for the Second District, and the defendant prosecutes this writ of error to that court.

      The rulings of the court were properly excepted to, and plaintiff in error assigned as grounds of reversal, in the Appellate Court, the overruling of the several motions to quash, for new trial and in arrest of judgment, and the giving of improper instructions for the People, refusal of instructions asked by the defendant, and error in the admission and exclusion of testimony. The errors here assigned question the judgment of affirmance by the Appellate Court.
    The charging part of the indictment is as follows, omitting prefatory words: “That Wilkins Seacord, on * * * at * * * and continually from said day to the time of the finding of this indictment, unlawfully and willfully did cause and suffer the carcasses of divers dead animals, and large quantities of offal, filth and noisome substances, then and during all the time aforesaid, and there to be collected, deposited and remain near the dwelling houses of N. F. Conrad, Thomas Kernan, Peter Johnson, Charles Fauble and others, there situate and being, then and during all the time aforesaid, and there to the prejudice of the said N. F. Conrad, Thomas Kernan, Peter Johnson, Charles Fauble and others, and to the common nuisance of all the people there lawfully being and abiding, contrary to the form of the statute.
    The facts are sufficiently discussed in the opinion to avoid I necessity for further statement.
    Mr. William C. Noroross, Messrs. Williams, Lawrence & Bancroft, and Mr. George W. Thompson, for the plaintiff in error:
    The indictment does not charge the offence with sufficient certainty, either as to the character of the nuisance or itsloeality. The rule is, that in nuisances, except of barratry, common scold, and possibly one or two others, the acts constituting the nuisance must be set out with the detail and fullness required in other offences. The indictment must both, identify the transaction and affirmatively show prima, facie
      guilt. When a thing is not per se a nuisance, but becomes So-by special circumstances, these must be charged. 2 Bishop on Crim. Proc. sec. 865; McNair v. People, 89 Ill. 443.
    In determining whether a thing is a public nuisance, when the public health is not concerned, the public good it does may, in some cases, be considered, to see if it outweighs the public annoyance. 1 Russell on Crimes, 297; Cooley on Torts, 596-598. •
    The second of the People’s instructions is bad, in omitting to require the jury to find defendant guilty of the intent charged. Slattery v. People, 76 Ill. 220.
    The sixth instruction on the part of appellee is bad, because it calls attention to isolated facts, thereby giving them undue prominence,—such as the expression, “that it is no defence that parties took dead hogs to tank, whether witnesses or not,” and the expression as to the “business being of benefit to a certain class of community,” etc. Hewett v. Johnson, 72 Ill. 513; Emery v. Hoyt, 46 id. 258.
    Said instruction is further bad, because it ignores the doctrine of the necessity of the case, and the good derived by the public therefrom. 1 Broom’s Legal Maxims, 1, 2, 3; Russell on Crimes, 297; Cooley on Torts, 596-598.
    The second refused instruction on the part of appellant is the law. Lyons v. People, 68 Ill. 272.
    The first and third refused instructions are based on the theory of the defence, and ought to have been given. Lamb v. People, 96 Ill. 73; Waggeman v. Bracken, 52 id. 468.
    Mr. John W. Matthews, State’s Attorney, and Mr. Peedebick A. Willoughby, for the People:
    The indictment charges the nuisance with all the certainty, viz., “the carcasses of divers dead animals, and large quantities of offal, filth and noisome substances to be collected, deposited and remain near,” etc. The language is that of the statute. Fuller v. People, 92 Ill. 184; McCutcheon v. People,
      69 id. 601; Warriner v. People, 74 id. 346; Cole v. People, 84 id. 216.
    As to the sufficiency of the averment of locality in nuisance, ¡see State v. Lang, 63 Me. 215; State v. Sterdivant, 21 id. 9; Commonwealth v. Chemical Works, 16 Gray, 231; Commonwealth v. Kelly, 10 id. 464.
    A continuance for more than twenty years, before a highway or dwelling houses are erected, is no defence to an indictment for a nuisance. Commonwealth v. Upton, 6 Gray, 473.
    An offensive trade carried on remote from others, is lawful. When adjacent territory is devoted to domestic or business uses, and the inhabitants are rendered uncomfortable, it becomes unlawful. Taylor v. People, 6 Parker, 347. See, also, Wood on Nuisances, sec. 505; State v. Kaster, 35 Iowa, 221.
    Any business, however lawful in itself, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained. Wahle v. Reinbach, 76 Ill. 322.
    On a trial for nuisance, the prosecution need not prove a criminal intent. Taylor v. People, 6 Parker, 347.
    The strictures upon the sixth instruction seem trivial. The doctrine of necessity only applies to cases where the public health is not concerned. 1 Bussell on Crimes, 297.
    Offensive odors directly affect the public health, and are without the doctrine of necessity. Privies are absolute necessities, but are prima facie nuisances, and abatable. Wahle v. Reinbach, 76 Ill. 322.
    The second refused instruction is not the law. Counsel have overlooked Adams v. People, 109 Ill. 451, where that favorite ninety-and-nine instruction is definitely laid to rest.
   Mr. Justice Shops

delivered the opinion of the Court:

This was an indictment for nuisance, under the first clause of section 221, paragraph 227, (Starr & Curtis,) page 815, of the Criminal Code,' which reads: “It is a public nuisance: Keeping offal.—1. To cause or suffer the carcass of any animal, or any offal, filth or noisome substance to be collected, deposited or to remain in any place, to the prejudice of others.”

The first error assigned is the overruling of a motion to quash the indictment. It is first objected, that the indictment does not sufficiently describe the offence. To this a sufficient answer is, the indictment charges the offence in the language of the statute, changing the disjunctive to the conjunctive form, as it is proper to do. We have repeatedly held that it is sufficient if the offence is charged substantially in the language of the statute creating it. McCutcheon v. People, 69 Ill. 601; Warriner v. People, 74 id. 346; Cole v. People, 84 id. 216; Fuller v. People, 92 id. 184.

But the indictment is not obnoxious to this objection. It is sufficient if the acts constituting the nuisance be set out with the detail and fullness required in respect of other offences, —that is, that the facts set out “must identify the transaction and affirmatively show prima,'facie guilt.” So when a thing is not a nuisance of itself, but becomes so by its special' circumstances, this must be alleged. Thus, “if the nuisance is a public show, corrupting to the public morals, so much of the facts of its indecency, barbarity, or the like, must be stated as will enable the court to discern its indictable character.” (2 Bishop on Grim. Proc. 861-865.) Here, the nuisance is made to consist in causing or suffering the carcasses of animals, etc., to be collected, deposited or to remain in any place to the prejudice of another; and the rule of pleading requires only the statement of such facts as constitute the offence.

The next objection urged is, that the locality of the nuisance is not sufficiently described. No description of the locality, other than that given in the statute, (i. e., place,) is requisite, other than the venue laid in the proper county. (2 Bishop on Grim. Proc. 866.) If the indictment is of a particular building or structure which is to be removed or abated under the order of the court, its location must be set out with particularity. So, also, if the locality becomes part of the description of the offence,—as, where the law designates a particular place, as on a bridge or within a city, or the like, where an act otherwise lawful shall be a nuisance,—the location must be aptly averred; but generally, and in cases of this sort, the venue, only, need be stated.

It appears that the plaintiff in error owned and was operating rendering tanks, at which dead hogs were collected, and there rendered in the manner usual at such establishments, and it was at and about such tanks that it was attempted to be shown the nuisance was committed. Dead hogs were collected from the surrounding country and railway station, and hauled to the tank in a wagon kept by plaintiff in error therefor. Witnesses were permitted to testify as to the condition of the carcasses while being hauled to the tank, and that such carcasses, and the wagon after they had been hauled in it, were offensive and noisome. This is assigned for error. It was not sought to convict for hauling or having in his wagon the offensive carcasses of dead animals. But this evidence was admitted, and properly, to show the character of the material collected and deposited at the tanks. Any evidence tending to establish that the carcasses, or offal or filth collected and deposited at the tanks by defendant, was noisome, and prejudicial’ to others, was proper, and this evidence certainly tended to prove such facts.

It is contended that the court erred in giving the People’s second and sixth instructions. The criticism of the second instruction is, that it excludes the duty of the People to prove the intent with which the act complained of was done. The criticism is unwarranted. The offence charged consists, as before said, in collecting, etc., carcasses of dead animals, etc., so that others will be or are prejudiced thereby,—not in collecting, etc., with the intent that others shall be injured or prejudiced. If it appear that the defendant actually caused or suffered the carcasses to be collected, deposited or to remain in any place, the offence would be complete if others were, in fact, prejudiced thereby. The prejudice to others, contemplated and intended by the statute, which renders the act an indictable nuisance, is that legal prejudice or injury which would render the defendant liable in a civil action, or indictable at common law. It is immaterial whether the defendant intended the prejudicial result to others or not, if such result flows from his unlawful act in collecting and depositing the prohibited noisome substances. It is presumed that every sane man intends the natural and probable consequences of his act.

The People’s sixth instruction, it is said, is erroneous, in that it singles out and makes prominent isolated facts. It is true the jury were told that it was no defence that the business was a benefit to persons having dead hogs, or that certain of the People’s witnesses had sold carcasses of dead animals to be rendered, and the like,—and this is the singling out of isolated facts complained of. The bare statement of the scope of the instruction demonstrates that it is not obnoxious to the criticism. See Hewett v. Johnson, 72 Ill. 513; Emery v. Hoyt, 46 id. 258.

The defendant’s second refused instruction asserted that the policy of the law is, that it is better that ninety-and-nine, or any number of guilty persons, should escape, than that one innocent man should be convicted, and that it is not sufficient to authorize a conviction that the greater weight or preponderance of the evidence supports the allegations of the indictment. This instruction, in the precise form here presented, was before us in Adams v. People, 109 Ill. 444, and was condemned, and we see no reason for departing from that holding.

The defendant’s first and third refused instructions were properly refused. Improper elements were introduced in each of them. The first instruction is based upon the theory that defendant having located his rendering tanks remote from thickly settled communities as far as they reasonably could be, and that they were managed with the most approved appliances, and he had made reasonable provision for rendering what might- be brought to the' tanks, or such provision as, in the judgment of a reasonably prudent man, would be sufficient therefor, he would not be liable if he should cause more to be brought to the tanks than could be rendered, however offensive to the neighborhood such carcasses might become, if the jury believed that the business was not a nuisance when the carcasses were rendered as fast as they were collected.

In determining whether establishments of this kind, which belong to the class denominated prima facie nuisances, are nuisances in fact, the location, whether convenient or otherwise, as well as the management, and the effect produced on the neighborhood, must be considered. If it be conceded, as contended, that the tanks were not, of themselves, or the business of operating them was not, a nuisance, or liable to become so when operated with proper care, yet the .fallacy of the instruction is apparent, in that it assumes that the defendant was justified in collecting more carcasses than could be rendered before they became offensive to the neighborhood. It ' may have been convenient for farmers to sell their dead hogs, and defendant may have been bound to care for or of the dead animals on the trains of the railroad, but he was not bound to buy or collect more than he could dispose of. What, excuse can it be to him for permitting, for a number of days, large quantities of putrid carcasses to lie exposed at his establishment,—that more hogs died than his tanks had capacity to render? It is true the defendant says he did not think it would be treating his neighbors right not to take their dead cholera hogs, but when he took them in quantities larger than he had the ability to care for and prevent becoming a nuisance to the neighborhood, he was not in the exercise of ordinary or reasonable care. The evidence abundantly shows that the effluvia emanating from the carcasses of dead animals, and filth there accumulated, was so offensive as to render uncomfortable, physically, every one of the persons named in the indictment, and others within the range of its effects. The-jury were amply justified in finding that the degree of discomfort produced by the noisome odors therefrom would make it an indictable nuisance.

The evidence of the defendant shows he was «yard-master of the Chicago, Burlington and Quincy railroad, at Galesburg, and entered into a contract with that company to take care of the dead animals arriving on trains or in the yards of the company. With this view he erected the tanks in question, in Warren county, and had the dead hogs taken there to be rendered; that he also purchased cholera hogs from farmers, as they were offered, which were also taken to the tank. The-tanks were large enough, he says, to dispose of all hogs taken from the trains and yards, and generally all others, but at. times, in hot weather, and when the cholera was bad, and an unusual number of hogs died in shipment, they accumulated at the tanks. He says: “I have not felt, myself, as though I was doing, or permitting anything to be done, of which a reasonable man would be likely to complain, except for a short time in July, and a short time in August, for a day or two» In July, from the 13th to the 17th, 1885, that tank was not in a condition that was at all satisfactory to me. It was extremely hot weather. There are western packing houses all up and down the Missouri river, and in Iowa, that consume a great many hogs; but in the summer season, in hot weather, they quit, as they have not the appliances, outside of Kansas-City, that they have in Chicago,—cooling rooms, etc. In consequence of that, we had a larger number of hogs coming over the line of road at that time than we have ever had before or since, and the weather being extremely hot, many of them were dead, and cholera was bad, so that the dead hogs from the trains, and from the farmers near the tank, made a larger supply than I was able to take care of at the tank as they came in. I don’t think the time has ever been when I couldn’t. take care quickly of all the hogs that I got from the trains. But a great many hogs were hauled in from the country. During the year there has been paid for dead animals rendered there, about $12,000. About $6700 of that was paid to the farmers who delivered hogs to the tank. I did the best I could to get the hogs out of the way that time,—everything in my power. I ran the tanking business day and night, incessantly. I did not wish to annoy any one.” It also appears that the refuse, after extracting the grease, by steam, was dumped into pits at most three feet deep, and being liquid, would ferment, creating gas, which would force pipes or vent holes through the earth covering, and escape into the air. It is not shown that there was any reason for the accumulation, save that he collected more hogs at the tank than could be immediately rendered.

The third instruction is faulty, in that it would, if given, authorize the jury to consider other distinct nuisances not connected with the one in question, and also, if they found, from the evidence, that the persons named in the indictment as haring been prejudiced by the nuisance, or some of them, have, from time to time, voluntarily contributed to the support and increase of the business, etc., of the tanks, such facts might be considered in determining the question of nuisance. If it was shown that there were other nuisances at the same time, which is not here established, their presence would be no justification to the defendant. The question was, is the business •of defendant productive of odors which are offensive to those within their range, so as that it produces physical discomfort. (Rex v. Neil, 2 C. & P. 485 ; Russell on Crimes, 437.) It can not be said, either, that because one of the persons named in the indictment, or all of them, may have voluntarily contributed to the increase or support of the “business,” it would justify or excuse the defendant in so conducting his business that it would become a nuisance. (Wood on Nuisance, 553; Smith v. Phillips, 8 Phila. 10; Tipping v. St. Helen Smelting Co. 1 L. E. 66; Roscoe on Crim. Ev. 795.) It is not shown or ■contended that any of such persons did more than to sell the defendant the carcasses of dead animals, or that they had any -control over or management of the business, or of the quantity •of material collected.

But each of these instructions assumes that the public ne•cessity and convenience required the disposition of the animals taken to the tank, and to this branch of the case the major portion of the argument of counsel is directed. It is said the proof shows the existence of three things: First, necessity for the business; second, suitableness of location of defendant’s tank; and third, proper care and management,—and these ■concurring, it is said, establish the non-liability of the defendant. It is also insisted, with great apparent earnestness, that the acts of defendant are justified by the immediate urgency for the disposition of the dead animals, out of regard for the public health and convenience. In respect to the suitableness of location it may be said, that in respect of trades and business which generally produce ill-effects upon the adjacent •owners of property, such as tanneries, smelting works, rendering and soap factories, and the like, and denominated, therefore, prima facie nuisances, the weight of authority in this •country and Great Britain probably is, that no place can be .held to be convenient for the exercise of a noxious trade where injurious results therefrom ensue to others. In respect, how•ever, of business or trades which produce merely annoyance, "thereby producing physical discomfort, but which is not hurtful in character,—that is, injurious to health or life,—the rule is mot of the same strictness. (See Tipping v. St. Helen Smelting Co. supra; Rex v. Dixon, 10 Mod. 339; Hawkin’s Pleas of the Crown, b. 1, chap. 75, sec. 10; Opinion by Blackburn, J., in Fletcher v. Ryland, 1 L. R. Exch. 289; McKeon v. See, 51 N. Y. 511; Fletcher v. Ryland, 3 L. R. (H. L. Cas.) 330; Opinion of Gibbs, J., in Freeman v. Cohoes Co. 32 N. Y. 159; Peck V. Elder, 3 Sandf. 126; Catlin v. Valentine, 9 Paige Ch. 575; Stockport Water Works Co. v. Potter, 7 H. & W. 167; Pinkney v. Ewans, 3 L. T. (N. S.) 741; Attorney General v. Leeds, 39 L. J. 354; Cahill v. Eastman, 18 Minn. 324; Beardmore v. Treadwell, 3 Giff. 683; Bamford v. Turnelly, 31 L. J. 286, cited in full, p. 690, et seg. 3 Giff.) However, it will not be necessary to determine this question here, for it clearly appears that the defendant was guilty of collecting the carcasses of¡ dead animals at his tanks, and depositing and permitting to-remain, noisome substances, contrary to the provision of the-statute, independently of the business of carrying on his rendering establishment.

In respect of the third proposition, —that is, proper care- and management, by the defendant, of his business,—it has-already been shown that whatever the care exercised to prevent-the mere rendering of the carcasses in defendant’s tanks from-being prejudicial to others, he permitted to be collected and deposited there, dead animals, offal and filth, in direct violation of the statute, unless the public necessity or convenience-will justify his acts. The law does not, however, balance conveniences, and it makes no difference if the work is really in the interest of society or necessary for the preservation of the public health; It is now well settled “that, the circumstance that the thing complained of furnishes, upon the whole, a greater convenience to the public than it takes away, is no-answer to an indictment for nuisance.” (Eoscoe on Grim. Ev„ pp. 794-598, m. 1.) In Attorney General v. Leeds, 39 L. J. 354, the town of Leeds was indicted for a public nuisance-created by the discharge of sewerage of the town into a river,, and thereby polluting the stream. The defence was, that there-was no other practicable way to drain the town, and the health-of the inhabitants thereof depended upon maintaining this-outlet for its sewerage. It was held to be no defence, the court-holding that in prosecutions or actions for nuisance the court would not balance conveniences, but when the violation of the public or private right was clear, there could be no excuse heard of public convenience that would protect the person or corporation committing the nuisance, from civil or criminal prosecution. In Rex v. Russell, 6 B. & Cress. 566, it was held, at nisi prim, that where a great public benefit accrues, arising from the abridgment of the right of passage, such abridgment is not a nuisance; but in Rex v. Ward, 4 Adolph. & Ellis, 384, Russell’s case was expressly overruled, and it was there held that there can be no balancing of benefits, and a defendant will not be permitted to show that the public benefit resulting from the alleged nuisance was equal to the public inconvenience occasioned thereby. In State v. Raster, 35 Iowa, 221, on indictment for nuisance in maintaining shipping yards, it was held to he no defence that the shipping yards were a great and essential accommodation to the public; that owing to 4heir locality, character of surface, etc., they were less offensive than any other answering the same public demand, and were reasonably well kept. See, also, Hart v. Mayor of Albany, 9 Wend. 517; 3 Greenleaf on Evidence, sec. 187; Attorney General v. Colney Hatch Lunatic Asylum, 4 L. R. 146; Holsman v. Boiling Springs Co. 14 N. J. 335; Chute v. State, 19 Minn. 271.

This position is not only abundantly sustained by authority, but is sound in principle. To hold otherwise would be to compel the citizen to abandon his property at the demand of the public convenience, without the forms of law and without compensation: To live in the comfortable and free enjoyment of the air, free from unnecessary pollution, is the right of all, and any act which takes this away from an individual, is actionable as a private injury;' that which deprives the community of the right, is indictable as a public -wrong. If it was necessary for the public health or convenience that dead animals should be summarily disposed of, means could be readily found, without accumulating them from the adjacent towns and cities and stations of a great railway, and from the surrounding country, in one locality. This particular neighborhood, comprising only perhaps a score of families, owed no servitude to these towns and cities, or to the railway or surrounding country. Its right to the enjoyment of pure air, ancL of its homes in physical comfort, was as valuable to its inhabitants, and as certainly assured to them by the law, as to-citizens of any other locality, however opulent. It can not be-said, nor is there reason or authority for the position, that for the public convenience of the city of Galesburg, or other towns or stations, or of the railroad or of adjacent farmers, or because-it may be profitable to shippers or others that the business be carried on, those persons named in the indictment, or this neighborhood, shall be compelled to submit to having their lives made physically uncomfortable, and their homes made unenjoyable, by noisome or noxious odors and gases. Private property can not be taken for public use without just compensation, and it can make little difference whether it is taken, or-is destroyed for the uses of civilized life. It can make no-difference that the convenience, or even the preservation of the health, of a large population required the speedy disposition of the dead animals, or that the number actually injured by the nuisance is comparatively small.

There is no error in this record for which the judgment, should be reversed, and it will be affirmed accordingly.

Judgment affirmed.


text:
    George Hunt, Attorney General, v. The Chicago Horse and Dummy Railway Company.

      Filed at Ottawa September 26, 1887.

    1. Attorney General—right to file information in restraint of operation of street railways. The Attorney General of the State has the right to-file an information in a court of chancery, to enjoin a horse and dummy railroad company from constructing and using a track in and along a public street of a city, where it has not legally obtained permission so to do from the proper municipal authorities.

      2. Municipal cobpobations—use of streets for horse or dummy raiU roads—only on petition of adjacent proprietors. The power conferred by the general Incorporation act upon the common councils of cities to grant the use of streets for railway purposes lies dormant, and can not be exercised until the requisite number of lot owners along the street authorize its exercise, by petition. When this is done, the council is invested with power to act,, and not before; and this applies to all railroads, whether operated by horse or steam power.
    3. So the city council of a city incorporated under the general act for-the incorporation of cities and villages, has not the right or power to grant to a horse or dummy railway company, the use of any of its streets, without a petition of the owners of the land representing more than one-half of the frontage of such streets.
    4. Paragraph 90, of section 1, of article 5, of the act for the incorporation of cities and villages, prohibiting the grant of the right to lay any railroad tracks in any street to any steam or horse railway company, except upon a petition of the owners of the land representing more than one-half' of the frontage of the street, etc., is a limitation upon the power granted by paragraphs 9, 24 and 25 of the same section.
    5. The paragraph mentioned is not repealed by “An act in regard to horse- and dummy railroads,” approved March 19, 1874, there being no inconsistency between their provisions.
    6. Repeal of statutes by implication. Repeals of statutes by implication are not favored by the law, and a later statute will never be held' to operate as a repeal of an earlier statute, unless the two are so inconsistent or repugnant that they can not be reconciled; and it is the duty of the-courts to so construe them as to avoid such repeal by implication in all cases, if such a construction can be reasonably adopted.
    7. Constbuction of statutes—so that all on same subject may stand,. All statutes relating to the same subject should be construed inpari materia, so as to give each of them its appropriate effect. All such laws should be-construed together, so that no clause, sentence or word shall be superfluous or inconsistent.
    Appeal from the Appellate Court for the First District;—heard in that court oh appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. C. Beckwith, for the appellant:
    The bill was properly filed by the Attorney General. (Rev. Stat. chap. 14, sec. 4, par. 12.) His duties are not limited to those prescribed by law. Commonwealth v. Railroad Co, 27 Pa. St. 351; Quincy v. Jones, 76 Ill. 231; Field v. People,
      2 Scam. 79; Strother v. Lucas, 12 Pet. 410; United States v. Peralta, 19 How. 343; Supervisor v. United States, 4 Wall. 128; Russell v. Allen, 107 U. S. 163.
    As to the right of the Attorney General to maintain such a hill at common law, see Attorney General v. Railroad Co. 2 W. R. 330; Attorney General v. Bridge Co. 21 L. B. (Ch. Div.) 752; Attorney General v. Cockermouth, 18 Eq. 172; Attorney General v. Railway Co. 11 Ch. Div. 449; Attorney General v. Railway Co. L. R. (4 Ch.) 194; Attorney General v. Railroad Co. 125 Mass. 315; Attorney General v. Railroad Co. 133 id. 361; Attorney General v. Railroad Co. 16 Gray, 243; Attorney General v. Cambridge, id. 247; Attorney General v. Ice Co. 104 Mass. 249; Ferry Co. v. Railroad Co. 107 Ill. 450; Railway Co. v. Chicago, 96 id. 630; 2 Story’s Eq. Jur. secs. 922, 923.
    The ordinances are void, for the reason that a majority of the property owners of more than one-half of the frontage abutting upon the line of the proposed railroad did not petition the common council for the passage thereof.
    Paragraph 90, of section 62, of the act in relation to cities, (sec. 1, art. 5,) is not repealed by the act in relation to horse and dummy railroads. As to repeals by implication, see Harding v. Railroad Co. 65 Ill. 90 ; Perteet v. People, id. 230; Fowler v. Perkins, 77 id. 271; Bruce v. Schuyler, 4 Gilm. 221; Wragg v. Penn Township, 94 Ill. 11; Rawson v. Rawson, 52 id. 62; Goodman v. Jewett, 24 Conn. 589; Norwich y. Story, 25 id. 47; Callahan v. Osborne, 37 id. 490; Beach v. Meriden, 46 id. 503; Holton v. Daly, 106 Ill. 131; Mayor v. Magruder, 34 Md. 381; Bowen v. Lease, 5 Hill, 225; King v. Downs, 3 T. R. 569; Goddard v. Rostori, 37 Mass. 410; Dugan v. Giddings, 3 Gill, 154.
    Clause 90, of section 1, article 5, of the act relating to cities, and section 3 of the Horse and Dummy act, being in pmi materia, should be construed together as if contained in the same act, so as to effect then: several objects. Catholic Congregation v. Germain, 104 Ill. 440; Bruce v. Schuyler, 4 Gilm. 272.

      There being no express repeal, it is the duty of the courts to construe the statutes so that the latter shall not repeal the former by implication. Chicago v. Quimby, 38 Ill. 278 ; Card v. McCaelb, 69 id. 317; People v. Barr, 44 id. 201; East St. Louis v. Maxwell, 99 id. 443; Holton v. Daly, 106 id. 139 ; Ottawa v. La Salle County, 12 id. 339.
    Mr. Francis Adams, for the appellee:
    The Attorney General is not authorized by law to file the bill. The statute says he shall “perform such duties as may be prescribed, by law, ” not such as are or may be, clearly referring to the future.
    The proper remedy is quo warranto. Bey. Stat. chap. 112, sec. 1; Railway Co. v. People, 73 Ill. 541; People v. Railway Co. 88 id. 537.
    No petition of property owners is necessary to the passage of a valid ordinance granting the use of a street to a horse rail- , way company.
    The act of 1874, in relation to horse and dummy railroads, is a separate and independent act, complete in itself, and intended as a substitute for all previous legislation in regard to its subject matter.
    Upon the proposition that “a subsequent statute revising the whole subject of a former one, and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former Illinois and Michigan Canal v. Chicago, 14 Ill. 334; Culver v. National Bank, 64 id. 528 ; Andrews v. People, 75 id. 605 ; Devine v. Commissioners, 84 id. 590; Dingman v. People, 51 id. 377; Bartlett v. King, 12 Mass. 537; Sedgwick on Construction of Stat. 104, 105.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an information in chancery filed by George Hunt, Attorney General of the State of Illinois, on the relation of John McConnell, George McConnell and Benjamin F. McConnell, to restrain the appellee company from proceeding with the construction of its railway in certain streets of the city of Chicago. A demurrer, filed by the company to the information, was sustained by the circuit court, and the information was dismissed for want of equity. The Appellate Court has affirmed the decree of the circuit court, ynd the case is brought before us by appeal from such judgment of affirmance. A statement of the substance of the information will be found in the opinion of the Appellate Court in Hunt v. Horse and Dummy Railway Co. 20 Bradw. 282.

But two questions are involved. The first relates to the power of the Attorney General to prosecute this proceeding. We agree with the Appellate Court, that “the institution of the present suit was clearly within the legal authority of the Attorney General,” and we adopt as our own the reasoning of that court upon this subject, as found in 20 Bradw. 282, supra.

The second question relates to the right of the city council of Chicago to grant to appellee the use of certain streets without a petition of the owners of the land representing more than one-half of the frontage of such streets. We do not agree with the views of the Appellate Court upon this branch of the case,, and so much of their opinion as relates to it is not adopted.

The only question to be considered is this: Was paragraph-90 of section 1 of article 5 of the general “Act to provide for the incorporation of cities and villages,” (Hurd’s Eev. Stat. 1885, chap. 24, p. 227) repealed by “An act in regard to horse and dummy railroads,” approved March 19, 1874, in force-July 1, 1874? (Hurd’s Eev. Stat. 1885, chap. 66, p. 682.}

The general Incorporation act above referred to was approved April 10,1872, in force July 1,1872. It is one of the-allegations of the information, all of which are admitted by the demurrer to be true, that the city of Chicago was organized under this act in May, 1875, nearly a year after the Horse and Dummy act went into force.

Section 1 of article 5 of the act provides as follows: “The city council in cities, and president and the board of trustees in villages shall have the following powers: * * * Ninth— To regulate the use of streets, etc. * * * Twenty-fowrth— To permit, regulate or prohibit the locating, constructing or laying a track of any horse railroad in any street, alley or public place; but such permission shall not be for a longer time than twenty years. Twenty-fifth—To provide for and change the location, grade and crossings of any railroad. * * * Ninetieth—The city council or board of trustees shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam or horse railroad company except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to he used for railroad purposes.”

The act in regard to horse and dummy railroads consists of four sections, only two of which need be noticed. Section 1 provides, that any company incorporated for the purpose of constructing, maintaining or operating any horse or dummy railroad or tramway may enter upon and appropriate any property necessary for the construction of its road, etc., “and! may, subject to the provisions contained in this act, locate and construct its road upon or over any street, alley, road or highway * * * in such manner as not to unnecessarily obstruct the public use of such street, alley, road or highway,’" etc. Section 3, which is the one of most importance to the present discussion, is as follows:

“No such company shall have the right to locate or construct its road upon or along any street or alley, or over any public ground, in any incorporated city, town or tillage, without the consent of the corporate authorities of such city, town or village, nor upon or along any road or highway, or upon any public ground without any incorporated city, town or village, except upon the consent of the county board. Such consent may be granted for any period not longer than twenty years, ■on the petition of the- company, upon such terms and conditions, not inconsistent with the provisions of this act, as such •corporate authorities, or county hoard, as the case may he, ■■shall deem for the best interests of the public: Provided, no ■■such consent shall be granted, unless at least ten days’ public notice of the time and place of presenting such petition shall have been first given, by publication in some newspaper published in the city or county where such road is to be constructed, and except upon the condition that the company will pay all damages to owners of property abutting upon the street, alley, road, highway or public ground upon or over which such road is to be constructed, which they may sustain by reason of the location or construction of the road, the same to be ascertained and p>aid in the manner provided by law for the exercise of the right of eminent domain.”

There is no express repeal of paragraph 90 in the Horse and Dummy act. If there is any repeal, it must be by implication. Repeals by implication are not favored by the law, and a later statute will never be held to operate as a repeal of an earlier statute, unless the two are so inconsistent or repugnant, that they can not be reconciled. To justify a repeal by implication the repugnance between the statutes must be clear.and plain, and, if they are seemingly repugnant, it is the duty of the courts so to construe them as to avoid such repeal by implication. In all cases, if a construction can be reasonably given by which both acts may stand, it will be adopted. Harding v. Rockford, Rock Island and St. Louis Railroad Co. 65 Ill. 98; Hume v. Gossett, 43 id. 299; Barr v. The People, 103 id. 112; The People v. Barr, 44 id. 201; City of Chicago v. Quimby, 38 id. 278; Card v. McCaleb, 69 id. 317; Holton v. Daly, 106 id. 139; McDonough County v. Campbell, 42 id. 493; City of East St. Louis v. Maxwell, 99 id. 443.

It is also a well recognized rule that all statutes relating to the same subject should be construed in pari materia so as to give them all their appropriate effect and operation. All laws in pari materia are to be construed together, that no clause, sentence or word of any law shall be superfluous or inconsistent. Frink v. King, 3 Scam. 150; Bruce v. Schuyler, 4 Gilm. 272; Catholic Congregation v. Germain, 104 Ill. 440.

Applying these principles of construction to the statutes now under consideration, we see no such inconsistency or repugnance between them, that they can not both stand and be executed together.

Paragraph 90 provides that the city council shall have no power to grant the use of the streets except upon the petition of those owning more than one-half of the frontage of the streets to be used. This paragraph is a limitation upon the power granted by paragraphs 9, 24 and 25, as above quoted. (Chicago Dock Co. v. Garrity et al. 115 Ill. 155.) The charter of the city confers upon the council the power to grant the use of the streets to horse or steam railroad companies, and paragraph 90 restricts and limits the exercise of that power to cases where there is a petition of property owners.

The Horse and Dummy act merely specifies the conditions, upon which such limited and restricted power may be exercised in favor of the company desiring to construct or operate a road. It provides that the consent of the council to the use of the streets may be granted for a period of time not longer than twenty years, that such consent may be granted upon the petition of the company desiring it, that ten days’ notice of the time and place of presenting the company’s petition must be given by publication in a newspaper, and that the company must pay all damages sustained by owners of property abutting on the street, etc.

Paragraph 90 has reference to the relations between the common council as trustee and the property owners as beneficiaries in the trust. It has its origin in the right of the property owners, as a part of the general public, to control and limit the action of the council, which represents them as their agent. It is a doctrine, which can not be too often called to mind, that the city holds the fee of the streets in trust for the benefit of the public. It follows naturally as a corollary from this doctrine, that the power to grant the use of the streets is conferred upon the council also for the benefit of the public, including the owners of property abutting upon the streets to be used. That power lies dormant until the requisite number of owners authorize its exercise by petition. When they do so, the limitation upon the power of the council no longer exists. That body is then prepared to deal with the railroad companies and not before.

The Horse and Dummy act has reference to the relations between the council and the companies who may desire to construct and operate their roads in the streets. That act prescribes the terms upon which the council is to deal with any railroad company, after the property owners have indicated then willingness to have the proposed road built.

What conflict or antagonism is there between a requirement that the common council shall not give their consent to the use of a street until the property owners thereon present a petition therefor, and a requirement, that the company, to whom such consent is to be granted, shall be limited to twenty years, shall present a petition and give notice thereof and pay damages ?

Suppose that .the 90th paragraph be added as a second proviso to the third section of the Horse and Dummy act, as above quoted, will not that section as thus constituted be consistent and harmonious in all its parts ?

It is claimed, however, that the Horse and Dummy act is a separate and independent act, complete in itself and intended as a substitute for all previous legislation in regard to its subject matter. In behalf of this position the rule is invoked, that a subsequent statute revising the whole subject matter of a former one, although it contains no express words to that effect, operates as a repeal of the former. This rule can have no application to the present case. The Horse and Dummy act does not revise the whole subject matter of the general act for the incorporation of cities and villages. It does not even revise the whole subject matter embraced in paragraph 90, because that paragraph has reference to “any steam railroad company,” that is to say, to all kinds of steam railroad companies, while the act of March 19, 1874, refers only to one kind of steam railroad company, known as a dummy railroad company.

We think that, even if the Horse and Dummy act was a revision of the whole subject matter of paragraph 90, it can not operate as an implied repeal of that paragraph on account of the provisions contained in section 6 of article 1 of the act for the incorporation of cities and villages. That section is as follows: “All courts in this State shall take judicial notice of the existence of all villages and cities organized under this act, and of the change of the organization of any town or city from its original organization to its organization under this act; and from the time of such organization or change of organization, the provisions of this act shall be applicable to such cities and villages, and all laws in conflict therewith shall no longer be applicable. But all laws or parts of laws not inconsistent with the provisions of this act, shall continue in force and applicable to any such city or village, the same as if such change of organization had not taken place.”

The old charter of the city of Chicago remained in force until May, 1875. At that time the city adopted the general Incorporation act by the votes of the people, as prescribed in sections 1, 2 and 3. Before that time, the general Incorporation act was not in force so far as the city of Chicago was •concerned. May, 1875, was the time when that city made a "“change of organization” from the old charter to the general Incorporation act. Therefore, from May, 1875, all laws in conflict with that act were no longer applicable. As already stated, the Horse and Dummy act went into force on July 1, 1874, and, if it was a revision of the whole subject matter of paragraph 90 and for that reason in conflict with that paragraph, then it was not applicable to the city of Chicago after its change of organization in May, 1875.

It is not denied, that, if before May, 1875, the legislature had expressly repealed any of the provisions of the Incorporation act or had made any express amendments of such provisions, the city of Chicago will be held by its vote at that time to have adopted the act, as changed by such repeal or such amendments. But it was manifestly not the intention of the legislature, that cities, which should vote to organize under the Incorporation act, should thereby adopt all other acts of the legislature, which might seem by implication to-repeal some of" the provisions of the general act. It was for this reason enacted that all laws in conflict with such provisions should not be applicable.

"What did the electors of Chicago vote for, when they adopted the general Incorporation law ? They voted, as stated in section 3 of article 1, “For city organization under general law.”" Paragraph 90 was a part of such general law. Therefore they voted for paragraph 90, as well as for the other parts of the-act. Some elector may have been induced to vote for organization under that act for the very reason, that paragraph 90 imposed a wholesome restriction or limitation upon the power of the city council to grant the use of the streets to railroad ' companies. Was such elector bound to look through the whole-volume of Illinois legislation to see if there might not be some act upon some subject, which might impliedly répeal some of the provisions of the Incorporation law that he favored and intended to vote for ? If the people were not voting for the plain provisions of the act submitted to their suffrages but for the hidden and occult implications of some other act not brought to their notice, and whose effect upon the act voted for it would require the acumen of an astute lawyer to determine, then the election was a mockery and a cheat. (The People v. Wright, 70 Ill. 388.) “From the time of such change of organization the provisions of this act shall be applicable to such cities.1” Paragraph 90 was one of such provisions, and therefore from May, 1875, it became applicable to the city of Chicago.

But, in our opinion, the Horse and Dummy act was not in conflict with paragraph 90, and, not being inconsistent therewith, continued in force under the last clause of section 6, as above quoted.

It may here be observed, that, while the precise question involved in this case is now before this court for the first time, yet paragraph 90 has been recognized as a valid and subsisting, limitation since the Horse and Dummy act went into force in the following cases: Wiggins Ferry Co. v. East St. Louis Union Railway Co. 107 Ill. 450; Chicago Dock Co. v. Garrity et al. 115 id. 155; Chicago and Western Indiana Railroad Co. et al. v. Dunbar et al. 100 id. 110; Hickey v. Chicago and Western Indiana Railroad Co. 6 Bradw. 172; Schuchert v. W., C. and W. Railroad Co. 10 id. 397. In the Wiggins Ferry Co. case, decided in 1883, we said: “Of course in towns, cities or villages-organized under the general Incorporation law, which requires such assent, * * * the assent of the requisite number of the abutting property owners will be required, as well as that of the municipality.” In the Chicago Dock Co. case, decided in-1885, we said, speaking of the power conferred by clauses 9- and 25 of section 1 of article 5 of the Incorporation law: “In our opinion, this power is subject to the limitation imposed by the ninetieth clause of section 1 of article 5.”

We are, therefore, of the opinion that the ordinances of the city council, as the same are set forth in the information, which, granted to appellee the use of certain streets therein named, were void for want of the petition required by paragraph 90.. Hickey v. Chicago and Western Indiana Railroad Co. supra.

The judgments of the Appellate and circuit courts are reversed and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.

Judgment reversed.