author: Mr. Justice Walker

text:
    The People ex rel. Marvin S. Robinson v. Seth F. Hanchett.

      Filed at Springfield September 27, 1884.

    1. Insolvent debtor- — arrest on ca. sa. — refusal of county cowrt to discharge — how far conclusive. The judgment of the county court, on the application of a debtor to be discharged from imprisonment for debt, holding that the case was not one in which he was entitled to a discharge on schedule and assignment of his property, is final and conclusive upon all other courts until reversed or otherwise annulled.
    2. Same — retaining custody of debtor — return of writ, or its expiration. Where the sheriff arrests one under a ca. sa., it is his duty to retain the custody of the defendant until the judgment is satisfied, or the defendant is otherwise legally discharged, without reference to what becomes of the writ, or even whether it remains in force, or has expired by lapse of time. It is not necessary to renew the writ to make the continued imprisonment legal.
    3. A writ of ca. sa., like other executions, is made returnable by law within ninety days after its date, yet the imprisonment of the debtor does not end with its return or expiration.
    4. Same — giving bond for appearance at a further day — waiver as to time of continuance. The provision in section 8 of the act relating to insolvents, that the county court, on an application for a discharge, may continue the hearing from time to time, “not exceeding thirty days,” being for the benefit of the debtor may be waived by him, and is waived by his consent, express or implied, to a continuance for a longer time; and such court will not thereby lose jurisdiction, and his bond for his appearance on the day set for hearing will not be rendered invalid.
    5. Same — enlargement of debtor on giving bond, whether an escape. Where an insolvent debtor is by the county court admitted to bail pending an application for a discharge, as authorized by the statute, his enlargement under his bond does not amount to an escape, voluntaiy or negligent, so as to prevent him from being again imprisoned for the same debt.
    6. So where an insolvent debtor voluntarily enters into bond for his appearance before the county court at the time appointed for the hearing of his application to be discharged, even though the hearing is continued more than thirty days, by his consent, he will be in the custody of the law and under the control of the court on his appearance on the day set for the hearing, and that the court, on denying his application, may legally order him to be again taken into custody by the sheriff, and his imprisonment under such order will be as legal as his first arrest.

      7. Same — voluntary escape — whether a discha/rge from imprisonment. The ancient rule that a debtor in execution, by a voluntary escape became discharged both from imprisonment and the debt, leaving the creditor to look to the sheriff alone for his debt, is no longer in force, and upon such escape he may be lawfully re-arrested and imprisoned.
    8. Same — remanding to custody of officer without process. Where a debtor has been legally arrested by a sheriff under a ca. sa. running in the name of the People, and is enlarged on bond for his appearance on the day set for the hearing of his application for a discharge, the court, on refusing a discharge, may order him back into the officer’s custody without process in the name of the People, and this may be verbally done.
    This was a petition for a writ of habeas corpus filed in this court, for the discharge of Marvin S. Bobinson from imprisonment under a capias ad satisfaciendum; The facts necessary to an understanding of the case appear in the opinion of the court.
    Mr. Bobert ITervey, and Messrs. Stuart & Beattie, for the relator:
    The ca. sa. after ninety days was dead, and the order of the county court could not revive the same. Fawkes v. Davidson, 8 Leigh, 555; Rev. Stat. chap. 77, sec. 8.
    When the sheriff permitted the relator to depart his custody, on July 13, under the order of the county court, that was a voluntary escape, and he could not be re-arrested in the same suit. Escapes are of two kinds — voluntary, when the sheriff and process leave the defendant; or negligent, when without fault of the officer the defendant leaves. Riley v. Whittaker, 49 N. H. 148; Butler v. Washburn, 25 id. 258; Clark v. Cleveland, 6 Hill, 349.
    Upon a negligent escape the defendant can be re-arrested, but upon a voluntary escape by act or mistake of the sheriff he can not. Cases above cited, and Bush v. Pettibone, 5 Barb. 276.
    The county court had no authority to continue the case exceeding thirty days. Bev. Stat. chap. 72, sec. 8.

      The order of the county court for the re-arrest was void as process, because it did not run in the name of the People. Leighton v. Hall, 31 Ill. 108; Sidwell v. Schumacher, 99 id. 433.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a petition for a writ of habeas corpus, presented to this court for the purpose of obtaining the discharge of petitioner from imprisonment under a capias ad satisfaciendum, issued out of the Superior Court of Cook county. It appears that one Blumenthal, at the January term, 1883, of that court, recovered a judgment against petitioner for the sum of $800, and costs. The plaintiff in that judgment, on the 13th day of July, following, sued out the ca. sa. under which petitioner was arrested. He, on the same day, filed an application to the county court of Cook county, under the Insolvent Debtor’s law, to obtain his discharge under its provisions. The county court thereupon, after inquiring of the.parties if it would be satisfactory to them to set the case for hearing on the 17th day of the next September, and neither party objecting, that date was fixed for the hearing. The court also ordered that petitioner be released from custody on his entering into bond for his appearance on the day set for trial, which he did, and the sheriff permitted him to go at large. On the day set for trial, petitioner appeared in the county court, and on a hearing, that court dismissed the petition, and petitioner appealed to the circuit court of Cook county, but on the 18th day of December, 1883, the appeal was dismissed, for failing to prosecute the appeal. At the time when the county court dismissed the petition, on the 17th day of September, an order was entered admitting petitioner to bail until the 17th day of September, 1883. It is alleged in this petition that the sheriff, on the 13th day of July, 1883, returned the writ of ca. sa. to the clerk’s office from which it issued, indorsed that petitioner had been arrested, and had been released by his giving bond for his appearance, and the writ remained in the office of the clerk of the Superior Court from the 13th day of July, 1883, until the 1st day of March, 1884, when it was withdrawn by the sheriff, without leave of the court, for the purpose of re-arresting petitioner. Application was made to the circuit court, and a writ of habeas corpus was issued and returned, but the application was dismissed after the court had announced its refusal to release petitioner. Another writ of habeas corpus was sued out of the Superior Court of Cook county, and the return shows it was pending when this writ was issued, and after it was issued, on the 5th day of June, an order was, entered, in .the Superior Court, which recites that the court had, on the 15th day of May, 1884, decided to enter-an order remanding .petitioner to the custody of the sheriff, but had suspended the entry of the order until that date, and the order recites that the petitioner is not so remanded, and the petition for the writ of habeas corpus was dismissed. During the pendency of the application for a discharge of petitioner under the writs of habeas coipus, he was at large under recognizance, and he was not -in the custody of the sheriff when this writ was served on him. But respondent waives these objections, and argues the case on the merits. We shall therefore proceed to their consideration.

Inasmuch as the county court held that this was not a case in which a debtor is entitled to be discharged on a schedule and assignment of his property, we must regard that judgment as conclusive until reversed or otherwise annulled.

When the sheriff makes an arrest under a ca. sa., the defendant becomes the prisoner of the sheriff, and it is the duty of the sheriff to retain the custody of the defendant until the judgment is satisfied or the defendant is otherwise duly discharged from custody, — and this, too, without reference to what may become of the writ, or whether it remains in force or lias become functus officio. If the legality of the imprisonment depended on the life of the writ, it would become necessary to obtain a new writ at the expiration of the life of the first writ. Such a practice, it is believed, has never obtained in this State, nor.does the statute contemplate such a practice. The 4th section of the chapter entitled “Judgments and Executions, ” gives an execution against the goods, chattels, lands and tenements (and the body) of the defendant, when authorized by law; and the 8th section of the same act makes executions, and writs of venditio rei exponas, returnable in ninety days after their date. It therefore follows that a ca. sa. must be returnable within that time, and yet the imprisonment does not end with the return, or the expiration of the life of the writ.

Petitioner then being legally in execution and imprisonment, he had the right to be taken before the county court on his giving the required notice, under the 8d section of chapter 72 of the Revised Statutes of 1874; and it was, by the 4th section, the duty of the sheriff to convey him before the judge of the county court at the appointed time, and the creditor at whose instance he was arrested had the right to contest his right to be discharged, which he successfully did in this case. The sheriff undeniably had the custody of petitioner before and at the time of producing him in the county court, and he remained in custody until he gave bond for his appearance at the time fixed for trial, and when he surrendered himself at that time he thereby returned to the custody of the sheriff. The 8th section of the act authorizes the county court to permit him to give such bond, and provides that it shall contain a provision that he will surrender himself to the officer in whose custody he was when it was given. The bond and his return to such custody are expressly-provided for by that section, and it is impossible to hold that there was any kind of escape when he was enlarged under the bond. That was done in strict conformity to the requirements of the statute. It would be unreasonable to hold that a compliance Avith the statute could produce an escape. A strict compliance with the statute can neArer be construed into an escape, either voluntary or negligent.

It is, however, urged, that the 8th section having provided that “the court may continue any hearing from time to time, not exceeding thirty days at any one time, and may remand the debtor into the custody of the officer, or allow him to give bond for his appearance” at the time fixed for the hearing, the law was violated by adjourning the hearing for more than sixty days; that the order of adjournment, and the bond, were illegal and void; that the court thereby lost all jurisdiction over the subject matter and the person of petitioner, and as he was enlarged under a void bond, it amounted to a voluntary escape, and having so escaped he could not be again imprisoned for the same debt, and hence he is entitled to his discharge from custody. There are to this proposition several answers. In the first place, it appears by the return that at the time the hearing in the county court was continued for more than thirty days, the court inquired of the parties if the day to which the case was continued would be satisfactory to them, and no objection was interposed. This undeniably amounted to consent. Even if no such question had been asked and petitioner had not objected, it would have amounted to a waiver, — «-and there can be no doubt that he could waive the requirement of the statute by express or implied consent. The provision of the statute Avas adopted for the benefit of the debtor, and he has most clearly the right to waive the benefit which he did in this case, and the court did not thereby lose jurisdiction either of the subject matter or the person, and he became a prisoner in the custody of the law and under the control of the court Avhen he appeared, according to the condition of his bond, on the day set for the hearing; and when the court refused to discharge him on the hearing of his application, and ordered him into the custody of the sheriff, his imprisonment was as legal and valid as when he was first arrested, because the entire proceeding was in conformity to and in compliance with the statute.

But if it were conceded that by enlarging petitioner under the bond it amounted to an escape, it by no means follows that he could not be again arrested. ' Anciently it was held that by a voluntary escape the debtor became discharged both from the imprisonment and the debt, and the creditor could look alone to the sheriff for his debt; but the doctrine was not of long continuance, as it was, soon after its announcement, overruled. The present doctrine is well stated in the case of Carthrae v. Clarke, 5 Leigh, 268. That was an action on a prison bounds bond. The defence was that the sheriff had voluntarily permitted the debtor to escape, and had re-arrested him, and then taken the bond in suit. It was there contended that the re-arrest was not legal, and he was not legally imprisoned when he executed the bond, and that it was therefore void. In answer to this position the court said: “It is said in 2 Bacon’s Abridgment, ‘Escape,’ C, p. 515, that it was formerly held if the sheriff suffered a prisoner in execution to make a voluntary escape, the prisoner was, in such case, absolutely discharged from the creditor, and that the right of action was entirely transferred against the sheriff, who, by means of such escape, became a debtor ex delicto, — for which Arundel v. Wytham, Leo. 73, and the case of Sheriff of Essex, Hob. 202, are cited. The consequence of that doctrine was, that the creditor was put completely in the power of the sheriff, and the fault of that officer had the singular effect of releasing the debtor from the claim of"the creditor. The principle was soon after repudiated by the courts of England. The case of Trevillian v. Lord Roberts, is reported in Bolle’s Abr. 902, pl. 8, 11 Viner’s Abr. ‘Execution,’ v. a. pl. 8, p. 26: ‘If A be in execution at the suit of B, and escape with the assent of the sheriff, and after, the sheriff retakes him and keeps him in prison, he shall he in execution to B, because, though B may bring an action against the sheriff for the voluntary escape, yet it is at his election, for the party in execution shall not, by his own wrong, put B to his action against the sheriff against his will, and it may he that the sheriff is not able to give him recompense,’ — and it is then said that the Sheriff of Essex case, in Hobart, is not law. It establishes the proposition that in case of a voluntary escape, and recapture by the sheriff, and detention by him of the prisoner, he shall be in execution to the creditor. It is not necessary that the creditor should express ids assent to his being in execution to him, nor by any order or direction, either oral or in writing, charge him in execution, for according to the case he shall be in execution to B.’ It establishes the proposition that it is in the election of the creditor to bring an action against the sheriff for the voluntary escape, and if he elects to bring such action he thereby manifests his intention not to consider the debtor as being in execution to him. It shows that if the creditor does not bring such action, the debtor is his true prisoner of course, and without any further action on his part. It gives the best reasons why this result should take place. The debtor shall not, by his misconduct, compel the creditor to look to the sheriff as his debtor, whether the creditor will or no; and besides, the sheriff may be unable to make him recompense.” The court held the bond legal and valid. To the same effect is Fawkes v. Davidson, 8 Leigh, 555, and the doctrine of Carthrae v. Clarke is reaffirmed. And see Dole v. Moulton, 2 Johns. 205, and Lansing v. Fleet, 2 id. 2. These cases are to the point on that question. . The cases referred to in the brief for petitioner are not applicable, as the facts are not similar to those in this case.

It is objected that the order of the county court remanding petitioner to the custody of the sheriff did not run in the name of the People, when the constitution requires all process to so run. The order was not process to arrest petitioner. He had been arrested, and was in custody under legal and competent process, and no other or further process was required. The practice has never obtained in this jurisdiction to issue process, or even an order of record, for the purpose of bringing a prisoner confined in jail into court. The practice is for the court to verbally order the sheriff to bring a prisoner into court, and remand him by a similar order; and it has never occurred to the most technical criminal lawyer to insist that the prisoner was released because the order was verbal, ■ and not in writing, and running in the name of the People. Under the insolvent laws the county court has as ample power to have an imprisoned debtor, on his application for a discharge, brought into court by the sheriff, and to so remand him, as has the circuit court to so control prisoners charged with crime.

Having carefully considered all the questions presented, we are of opinion that petitioner was properly and legally imprisoned, and as he did not show sufficient ground for a discharge, he was properly remanded to jail from whence he was brought.

Prisoner remanded.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    William H. Mings v. The People ex rel. Laura E. McCune.

      Filed, at Springfield September 27, 1884.

      BastabdY — maintainable by a non-resident. Under our statute a nonresident woman may maintain a bastardy proceeding against the putative father of her child, in the courts of this State.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.

      Messrs. Sellar & Dole, and Messrs. Hunt & Dyas, for the appellant,
    contended a non-resident of this State having an illegitimate child can not prosecute one in this State as the father of such child, — citing secs. 10, 13 and 16 of the Bastardy act; Eggleston v. Battles, 26 Vt. 548; Graham v. Monsergh, 22 id. 543; Grant v. Barry, 9 Allen, 459; State v. Helmer, 21 Iowa, 370.
    The primary object of our Bastardy law is the protection of the public against the support of the bastard child. The act being highly penal, should receive a strict construction.
    Mr. Robert L. McKinlay, and Mr. Joseph C. Ficklin, for the appellee:
    A prosecution under the Bastardy act is not limited to residents of this State. Kolbe v. People, 85 Ill. 336; Duffies v. State, 7 Wis. 762.
    The very obvious intent of the Bastardy act is to enforce the duty which the putative father is under to support his child. (State v. Jager, 19 Wis. 235.) This court has held that the object of the Bastardy act is not the imposition of a penalty for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bastardy proceeding instituted in the name of the People, on the complaint of Laura E. McCune, against William H. Mings, the appellant. On a trial of the issue before a jury, in the circuit court, the jury found the defendant was the father of the child, as charged in the complaint, and the court rendered judgment on the verdict. On appeal to the Appellate Court the judgment was affirmed.

But one question is presented for our decision by this appeal. In the circuit court the defendant entered a motion to dismiss, for the reason that the prosecutrix and her child were non-residents of the State, and for that reason a proceeding of this character could not be maintained here. The court overruled the motion, and this decision is relied upon as error. The same question arose in Kolbe v. The People, 85 Ill. 336, and we there held that a non-resident woman might, under our statute, prosecute the putative father in the courts of this State, for bastardy. That decision is conclusive of the question presented by this record, and we perceive no good ground for overruling it.

The judgment of the Appellate Court will he affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Peter Neff v. Robert Smyth.

      Filed at Mt. Vernon September 27, 1884.

    x. Tax tithe — of the judgment record — convening order. The fact that a tax judgment record of the county court contains no formal convening order, jg noj. a objection to the validity of a tax title growing out of a sale under the judgment, if such record book shows anywhere on its face that the county judge was present, that business of a judicial character was passed upon, that the court adjourned and reassembled, and that a record was kept of the proceedings of the court, and the judgment is signed by the judge.
    2_ Same — judgment, as showing the years for whieh taxes are due. As to “back taxes,” merely, where no forfeiture has taken place, the lands are only liable for interest on the back tax itself, and such “back taxes” are required to be brought forward “in separate columns designating the year or years,” as provided in section 277 of the Revenue law; but with respect to "forfeited taxes” the statute does not so require, but directs that these taxes, when ascertained in any given year, by adding together the back tax, interest, penalty and printer’s fees, as provided in section 129, shall be added to the tax of the current year, and the aggregate amount so added together shall be collected in like manner as the taxes on other real property for that year are collected.
    3. In this case, the application for judgment recorded in the judgment record book, and forming part of the judgment, gave, in separate columns, each tax of the current year, then “forfeited tax,” of $1138.13, then costs, fifty-one cents, then total amount due, $1274.92, opposite each lot; and in the caption to the application the taxes were stated to be for “the year 1878, and for forfeited back taxes for the year A. D. 1877 and previous years:” Held, that in respect of designating the “year or years” for which the taxes were due, the judgment was sufficient.
    4. Same — party appearing and contesting application for judgment, concluded by the judgment. Where a tax-payer appears and contests an application for judgment against his lots, for several years, as to certain taxes alleged to have been illegal, and his objections are sustained, and judgment rendered only for the taxes not complained of, under which his lots are sold, he will be estopped by the judgment from urging against the validity of the tax title any other objection to the legality of any of the other taxes embraced in the judgment.
    5. Where there is jurisdiction of the person and subject matter, a judgment is binding upon all parties and privies to it until it is reversed in a regular proceeding for that purpose, and its validity can not be inquired into in any collateral proceeding. If any ground of defence is omitted to be presented before judgment, the defendant will be precluded from afterwards taking advantage thereof. This applies equally to a judgment against land for taxes as to any other.
    6. Same — precept—as showing for what years taxes are due. A precept for the sale of lands for the taxes of 1878 and back forfeited taxes, was made with a column in which to specify the year or years for which the taxes were due, which was wholly blank, there being no reference to any year except the year 1878, in the head or commencement, in these words: “Tax sale and redemption record, Alexander county, Illinois — Sale of taxes, 1878, ” and then proceeding: “Becord of lands and lots against which judgment was rendered at the May term, 1879, of the county court of Alexander county,” etc.: Held, a substantial compliance with the statute as a statement of the year or years for which the tax was due, the back forfeited taxes being properly treated as the taxes due for the year 1878.
    7. Same — sufficiency of clerk’s certificate to 'precept. A certificate of the county clerk to a precept, “that the foregoing record of lands and town lots delinquent for the taxes for the year 1878, and forfeited taxes for previous years, is a true and perfect copy of the judgment record on file in my office, and that the foregoing judgment and orders of court are true and perfect copies of the original orders and judgment of the county court of said Alexander county, as made and entered of record,” etc., is sufficiently in compliance with the statute, without formally stating that the record made by the clerk is correct.
    8. Same — variance between judgment and precept. A judgment against real estate for taxes appeared to be for the tax of .1878, and forfeited and back taxes for the year 1877 and previous years, but the precept was silent as to the year or years for which the taxes were due, except the year 1878. There were no back taxes proper, but only the current year’s taxes of 1878, and “forfeited taxes” of previous years, due on the lots of the party objecting to the sale: Held, there was no substantial variance, as the back forfeited taxes might be considered as embraced in the description of taxes of 1878.
    9. Attorney — evidence of a retainer, to object to judgment for taxes. Where a committee of an association, of which a lot owner is a member,' employs counsel to defeat the collection of certain taxes claimed to be illegal, that being the object of such association, and such counsel appears before the county court, puts in objections for all persons of the association as to such tax, and such owner, in pursuance of Bis written obligation, pays the counsel a certain per cent on all taxes defeated, this is evidence sufficient to show that such counsel had authority to appear for him in the county court and resist the application for judgment against his lots.
    Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:
    Appellee having appeared and filed objections, the judgment of the county court is conclusive until reversed. Graceland Cemetery Co. v. People, 92 Ill. 620; People v. Smith, 94 id. 229; Belleville Nail Co. v. People, 98 id. 403; Gage v. Bailey, 102 id. 11; Karnes v. People, 73 id. 275; Blackwell on Tax Titles, 221; Freeman on Judgments, (2d ed.) see. 135.
    By failing, on his appearance, to object to a particular tax, he admits it is legal, and is estopped by the judgment from disputing such admission. Howley v. Griswold, 42 Barb. 18; Bank v. Hazard, 30 N. Y. 226; Baker v. Pratt, 15 Ill. 568; Welland Canal Co. v. Hathaway, 8 Wend. 483; Degell v. Odell, 3 Hill, 219; Snodgrass v. Ricketts, 13 Cal. 362; Niven v. Belknap, 2 Johns. 572; Strong v. Ellsworth, 26 Vt. 366; Hermann on Estoppels, secs. 328, 331.
    Sections 129 and 229 of the Revenue law have sole reference to “forfeited taxes, ” and sections 226 and 227 alone relate to simple back taxes. The forfeited taxes are to be added to the current taxes, and are all due for that year, and may be treated as the current year’s taxes due. The back taxes, when no forfeiture has taken place, are required to be brought forward in separate columns designating the year or 'years.
    ■ Even if the advertisement, collector’s report recorded in judgment, and precept, were not in the form prescribed by statute, they were sufficient as against appellee. Karnes v. People, 73 Ill. 279.
    The objections now urged were all cured by section 191 of the Revenue act. Chiniquy v. People, 78 Ill. 577; Beers v. People, 83 id. 493; Fisher v. People, 84 id. 496; Buck v. People, 78 id. 566.
    • Even if the precept was irregular and imperfect, it was process under the seal of the court, and contained all the information necessary to its proper execution. It is like an execution. Swiggart v. Harber, 4 Scam. 371; Durham v. Heaton, 20 Ill. 264; Newman v. Willitts, 60 id. 519; Morgan v. Evans, 72 id. 580; Chestnut v. Marsh, 12 id. 173; Hill v. Figley, 25 id. 158.
    No placita is necessary when it appears, the judge was present, hearing objections, etc. Dukes v. Rowley, 24 Ill. 210.
    The judgment and precept are each in substantial compliance with the statute. Revenue act, sec. 194.
    . Mr. John M. Lansden, and Mr. Angus Leek, for .the appellee :
    The judgment was void for want of a placita or convening order of the court. Young v. Thompson, 14 Ill. 380; Lawrence v. Fort, 20 id. 338; Dukes v. Rowley, 24 id. 210.
    The tax judgment record did not show the year or years for which the taxes were due. Revenue act, secs. 182, 184, 188, 194, 216, 277; Mann v. People, 102 Ill. 346.
    That a specification of the year or years for which the taxes are due, is necessary, see Morgan v. Camp, 16 Ill. 175; Prickett v. Hartsock, 15 id. 279; Marsh v. Chestnut, 14 id. 223.
    The judgment embraced certain illegal taxes, which vitiated the whole tax, and the judgment itself, Cooley on Taxation, 295; Burroughs on Taxation, 301; Blackwell on Tax Titles, 192; Treadwell v. Patterson, 51 Cal. 637; Bucknell v. Story, 36 id. 67; Gliddon v. Chase, 35 Maine, 90; Thayer v. Mayo, 34 id. 139; Grosvenor v. Cheney, 48 id. 363; Boyden v. Moore, 5 Mass. 365; Pickett v. Breckenridge, 22 Pick. 297; Cheney v. Stevens, 97 Mass. 77; McLaughlin v. Thompson, 55 Ill. 249.
    The alleged appearance of appellee in the county court could bind him only as to the particular tax to which objections were filed.
    Res judicata and estoppel apply only to matters put in issue. 2 Bouvier’s Die. 465; 7 Rob. Prac. 159; Bigelow on Estoppel, 27; Hanna v. Read, 102 Ill. 596 ; Miller v. McMannis, 57 id. 158; Eastman v. Cooper, 15 Pick. 279; Outram v. Morewood, 3 East, 346; Burlen v. Shannon, 3 Gray, 392; Arnold v. Arnold, 17 Pick. 7; Davis v. Spooner, 7 id. 147; Sawyer v. Woodbury, 7 Gray, 502.
    The precept was null and void. It did not show the year or years for which the taxes were due, nor was it properly certified, as required by section 194 of the Revenue law. There was a fatal variance between it and the judgment. Revenue act, sec. 194.
    The precept can not be aided by the clerk’s- certificate. Young v. Thompson, 14 Ill. 380; Merrill v. Swartz, 39 id. 108; Sidwell v. Schumacher, 99 id. 426.
    The precept was not certified as required by section 194. Again, there is a fatal variance between the judgment and precept. Pitkin v. Yaw, 13 Ill. 251; Eppinger v. Kirby, 23 id. 521.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment by Neff, against Smyth, for the recovery of lots 12 and 13, block 2, in Cairo, Illinois, where judgment was for the defendant, and the plaintiff appealed.

Plaintiff’s claim of title was under a tax deed for the lots, dated June 18, 1881, founded upon a tax sale of them, made June 17, 1879, by virtue of a precept issued June 16, 1879, upon a tax judgment against the lots, rendered May 28, 1879, for taxes for the year 1878, and forfeited taxes of the year 1877 and prior years.

It appears that the lots were delinquent for the taxes of 1873, and judgment was given therefor at the May term, 1874. The lots were again delinquent for the taxes of 61874 and forfeited tax of 1873, and judgment was given therefor at the August term, 1875. The lots were again delinquent for the taxes of 1875, and forfeited taxes of 1874 and the previous year, and judgment was rendered therefor at the June term, 1876. The lots were again delinquent for the taxes of 1876, and forfeited taxes of 1875 and previous years. When application was made for judgment for such taxes at the June term, 1877, the record shows that the defendant appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of the taxes for which judgment was asked, viz., the “County Railroad Interest Tax,” and “City Railroad Interest Tax,” of 1876, which objections were sustained by the court, and judgment only given for the residue of the taxes not objected to. The lots were again delinquent for the taxes of 1877, and forfeited taxes of 1876 and previous years. When application was made for judgment therefor, at the May term, 1878, the record shows that defendant again appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of the taxes for which judgment was asked, viz., the county and city “Registered Railroad Bond. Interest Taxes” of 1877, which objections were sustained by the court, and judgment only given for the remainder of the taxes not objected to. The lots were again delinquent for the taxes of 1878, and forfeited taxes of 1877 and previous years, and when application for judgment therefor was made at the May term, 1879, defendant again appeared in court, by his attorneys, and filed objections, questioning the legality of a portion of • the taxes for which judgment was asked, viz., the city and county'“’Bond Interest Taxes” of 1878, which objections were sustained by the court, and the said judgment of May 28, 1879, under which the lots were sold to plaintiff, only rendered for the rest of the taxes not objected to.

When the lots were offered for sale under the judgment of May 28, 1879, defendant, as well as plaintiff, were both personally present, and when plaintiff bid on the first lot offered, defendant promised to pay the taxes if plaintiff would withdraw his bid and the sheriff would adjourn the sale for half an hour, to enable the defendant to go and get the money and return, which proposition was assented to; but after waiting an hour,, and defendant failing to return, the lots were struck off and sold to plaintiff for the accumulated taxes of six years, amounting to $2549.84.

It is objected to the tax judgment of May 28,1879, that it was void because the tax judgment record does not contain a formal placita or convening order of the court, and Young v. Thompson, 14 Ill. 380, Lawrence v. Fast, 20 id. 338, and Dukes v. Rowley, 24 id. 210,‘are cited in support of the objection. In the case first named the defect was, that it did not appear, from the judgment record, “at what term, or in what year, the judgment was rendered.” Nothing is there said about a convening order. In the second case a convening order is spoken of, the court saying: “This record does not show what is sometimes called the convening order of the court. It does not show by whom the court was held, nor even in what court the judgment was pronounced. It merely shows the entry of the judgment order. There it begins and there it stops.” In Dukes v. Rowley, the question was as to the sufficiency of the ■ convening order, it not stating that the clerk and sheriff were present, and the court said: “It shows that the judge was present holding the term, and we find that the record does show that business was done by the court, and that a record of its proceedings was kept. This was sufficient, ” etc. We regard the latter case as going to sustain the present judgment in the particular in question. True, there does not appear in the tax judgment record book, here, any convening order, but such record book does show the county judge was present; that business of a judicial character was passed upon; that the court adjourned and reassembled, and that a record was kept of the proceedings of the court. If this so appeared, we think it enough, although it did not thus appear by any formal convening order. The tax judgment record book in evidence showed that the judgment in this case was rendered on May 28,1879, in the county court of Alexander county, at the May term thereof, 1879, by Reuben S. Yocum, county judge, the judgment being thus signed by him. The judgment does not appear to have the defects which, in the cases cited, were pointed out as existing in the judgments there.

It may be remarked further, in favor of the present judgment, that the cases cited had reference to the circuit court, and that the requirements of the statute of 1845, under which they were decided, were different from the law in force in 1879. Under the latter law it is the county court which has jurisdiction of proceedings for the collection of taxes, and by sections 5 and 6, chapter 37, of the Revised Statutes of 1874, it is declared that such proceedings shall be considered as probate ■ matters, and be cognizable at the probate term of the county court, and that such court, for the transaction of probate business, shall be always open.

Another objection to the judgment is, that the tax judgment record did not show the year or years for which the taxes were due. Appellee’s counsel refer to the several sections, 182, 184, 188, 194, 216- and 277, of the Revenue law, which, in proceedings for the collection of taxes, require the “year or years” for which taxes are due, to be specified, and claim that these sections make it clear that the designation in the judgment record of the year or years for which the taxes are claimed to be due, is necessary to the validity of the judgment, and of the tax title founded thereon. Appellant’s counsel contend there is to be a distinction taken between “back taxes ” and “forfeited taxes, ” and'that the provisions requiring the year or years for which taxes are due, to be specified, relate only to the current year’s tax and “back taxes, ” and not to “forfeited taxes.” We incline to adopt this view. Sections 129 and 229 of the Eevenue law appear to have sole reference to “forfeited taxes,” and sections 276 and 277 to relate alone to simple back taxes, where there has been no forfeiture. As to “back taxes,” merely, where no forfeiture has taken place, the lands are only liable for interest on the back tax itself, and are required to be brought forward “in separate columns designating the year or years,” as provided in section 277. But with respect to “forfeited taxes ” the statute does not so require, but directs that this tax, when ascertained in any given year, by adding together the back tax, interest, penalty and printer’s fees, as provided in section 129, shall be added to the tax of the current year, and the aggregate amount so added together shall be collected in like manner as the tax on other real property for that year may be collected. Thus the forfeited tax of the preceding year, with a year’s interest, penalty and printer’s fees, is added to the tax of the current year, and is merged in it by a judgment, and there becomes a new forfeiture, if the property be forfeited to the State. There is no provision for keeping each forfeited tax alive, or each year’s interest, penalty and printer’s fees separate and distinct, in separate columns. This distinction between “back taxes” and “forfeited taxes” seems sustained by Pike v. The People, 80 Ill. 82, where we said: “The objection that the advertisement and delinquent lists as to the forfeited lands do not state the year for which the lands were forfeited, is answered by reference to the statute, which does not require it.” The collector’s application for judgment, as recorded in the judgment record book, and forming part of the judgment, gave in separate columns each tax of the current year, then “forfeited tax,” $1138.13, then costs, fifty-one cents, then total amount due, $1274.92, opposite each of said lots; and in the caption to the application the taxes are stated to be for “the year A. D. 1878, and forfeited back taxes for the year A. D. 1877 and previous years.” In the respect of designation of the “year or years” for which the taxes were due, we hold the judgment sufficient.

A further objection taken to the tax judgment is, that it embraced certain illegal taxes, which vitiated the whole tax, and therefore the judgment itself. The alleged illegal tax is a county tax of about seventy-nine cents on the hundred dollars, levied for the year 1873, without any vote of the people, and for general county purposes, which was carried forward from year to year, and formed a part of the total tax for which judgment was rendered and for which the lots were sold, the legal limit of the county tax being seventy-five cents on the hundred dollars, without a vote of the people; and it is claimed that the clerk, in carrying forward the forfeited taxes for the successive years, wrongfully calculated interest on the back tax, interest, penalties and costs, instead of on the back tax alone. We consider that appellee is precluded from making this objection, because of his appearance in the county court and contesting on the merits the application for judgment.

It is denied that there was authority on the part of counsel to appear in behalf of appellee and make objections to the tax, as the record purports they did do. It is said there was an organization called a “Tax-Payers’Association;” that a committee of the association employed counsel to defeat the collection of the city and county bond interest taxes, — that being the object of the association, — and that such counsel put in as objectors the names of all persons who were delinquent as to this interest tax, without regard to having, or not, authority to do so; that it was in this way the objections came to be filed in this case without any personal employment by appellee, of counsel. It appears that appellee was a member of the association; knew the association had employed counsel to defeat the payment of this bond interest tax'on behalf of all the members, and signed a written agreement obligating himself, individually, to pay the' counsel ten per cent on the amount of the tax defeated; and when in each year, 1877, 1878 and 1879, the tax was defeated, upon presentation to him, by the counsel, of the county clerk’s certificate that objections had been filed and sustained by the court, and the tax defeated, appellee paid such counsel for their services the ten per cent agreed on. This must be taken as evidence sufficient of the authority of counsel to appear and file objections.

It is then claimed, that as the objections filed in 1877, 1878 and 1879 were confined exclusively to the city and county bond interest tax, and none of the objections now urged by appellee were embraced within those objections, the appearancé of appellee in the county court could bind him only as to that particular tax to which objections were filed, the contention being that appellee is not concluded by the judgment of the county court from urging as a defence to the present action any objection which was not specifically put in issue by him in the application for judgment against his lots for the taxes for which they were afterwards sold. The general doctrine surely is, that where there is jurisdiction of the person and subject matter, a judgment is binding upon all parties and privies to it until it is reversed in a regular proceeding for that purpose; that its validity can not be inquired into in any collateral proceeding; that all defences should be made before judgment, and if there should be the omission of any ground of defence, the defendant will be precluded from afterward taking advantage thereof. And we have held that where there has been an appearance and defence on the merits in a tax sale proceeding, a tax judgment should have the same conclusive effect as any other judgment. (Graceland Cemetery Co. v. The People, 92 Ill. 619; Gage v. Bailey, 102 id. 11; Karnes v. The People, 73 id. 274.) In the application for judgment against these lots for unpaid taxes, appellee appeared, as we find, by his counsel, and filed objections alone to the city and county bond interest tax, which objections were sustained, and judgment rendered for the amount of the residue of the taxes claimed to be due. Any objections which there were to any of the other taxes should have been presented at that time — appellant should then have made his entire defence. Having omitted to do so, he is precluded from now questioning the amount of the taxes that was due. The judgment is conclusive of the amount due. The objection now made that some other portion of the taxes was also illegal, and for which there should not have been judgment, goes but to the amount of the judgment, and questions the judgment as being for a larger amount than it should have been.

The idea that appellee appeared and defended only as to the part of the taxes to which he filed objections, and that as to the rest of the taxes he is to be considered as not having made appearance and defence, and is at liberty now to question their being due, is not to be admitted. There is no legal principle for its support. (See Freeman on Judgments, secs. 249, 135.) Filing the objections which appellee did, was a tacit admission that there were no other objections. In Karnes v. The People, supra, speaking upon this subject, it was said :■ “When objections are made, the trial is only upon the points thus raised, the presumption being that all else is admitted to be correct, and free from objection. * * * It would be a perversion of justice to permit a party to raise specific objections and contest the rendition of judgment, tacitly admitting the taxes were due, by not denying the fact, and then to raise that question for the first time in this court. ” If that might be said on appeal, as there, it may with the greater force be said in this collateral proceeding.

Objection is taken to the precept as being null and void, in that it did not show the year or years for which the taxes were due; that it was not properly certified, as required by section 194 of the Revenue law; and that there was a fatal variance between it and the judgment. The provision upon this subject in section 194 is: “The county clerk shall, before the day of sale, make a record of the lands and lots against which judgment is rendered, which shall set forth the name of the owner, (if known,) the description of the property, the total amount of judgment on each tract or lot, and the year or years for which the same is due, in the same •descriptive order as said property may be set forth in the judgment book, and shall attach thereto a copy of the order of the court, and his certificate that said record is correct; ”— and this is made the process on which to. sell. Looking at the record or precept, we see that the book (such it is denominated in section 200) was made with a column in which to specify the year or years for which the taxes were due, but it is wholly blank, and throughout the whole record or precept there is no reference to any year or years, except the year 1878, in the head or commencement, in these words: “Tax sale and redemption record, Alexander county, Illinois— Sale of taxes, 1878, ” and then proceeding: “Record of lands and lots against which judgment was rendered at the May term, 1879, of the county court of Alexander county, ” etc. We think this is to be read as a record of lands against which judgment was rendered at the May term, 1879, for the taxes of 1878. If we may look at the clerk’s certificate to the precept, that expressly states such record to be one “of lands and town lots delinquent for the taxes for the year 1878, and forfeited taxes of previous years, ” etc.

But it is said the certificate is no part of the precept. However that may be, it reasonably appears, aside from the certificate, as above stated, that the judgment was for the taxes of 1878, and we are disposed to regard that as a substantial compliance with the statute as to the statement of the “year or years” for which the tax is due. There were the taxes for the year 1878 due, and under provisions of the statute before referred to, “the forfeited taxes” were required to be added to the tax of the current year, and the aggregate amount so added together was to be placed on the tax books, and collected in like manner as the tax on other real property, thus making, we think, this aggregate amount of the taxes of the year 1878 and of the forfeited taxes of previous years,— all, practically, taxes of 1878, within the purview of the requirement we are considering. The certificate, is, “that the foregoing record of lands and town lots delinquent for the taxes for the year 1878, and forfeited taxes of previous years, is a true and perfect copy of the judgment record on file in my office, and that the foregoing judgment and orders of court are true and perfect copies of the original orders and judgment of the county court of said Alexander county, as made and entered of record, ” etc. Although the certificate does not, in words, say that the record made by the clerk is correct, the facts stated show it to be correct; and if, as the clerk certifies, “the foregoing judgment and orders of court are true and perfect copies of the original orders and judgment, ” then he has attached a copy of the order of the court, thus making the certificate sufficiently in compliance with the statute.„

It is. further objected that there was a fatal variance between the .judgment and precept, in the respect that the judgment appeared to be for the tax of 1878, and forfeited and back taxes for the year A. D. 1877 and previous years, but that the precept is silent as to the year or years for which the taxes were due, except as has been before named. In respect of appellee’s lots there were no “back taxes ” proper, but only the current year’s taxes of 1878, and “forfeited taxes” of previous years. According to what has been said, there would not appear to be any substantial variance in respect of the statement of the years for which forfeited taxes were due, as they might be considered as embraced within the description of taxes of 1878.

We are of opinion that the objections made against the tax deed were not sufficient to invalidate it, and that it should have been held good.

The judgment will be reversed and the cause remanded.

Judgment reversed.

Scholfield, Ch. J.; I do not concur in this opinion.

Dickey and Mulkey, JJ., also dissent.


author: Mr. Justice Dickey

text:
    The Chicago, Burlington and Quincy Railroad Company v. Peter Hans.

      Filed at Springfield September 27, 1884.

    1. BahiBOAD — statute construed as to duty to fence trade at stations. The statute of this State requiring railway companies to fence each side of their roads, to prevent cattle from getting on the same, except at public road crossings and within cities and villages laid out into lots and blocks, and mating them liable for injury to stock for a failure to do so, is not intended to apply to public stations or depot grounds, although such stations or depot grounds may not be within the limits of a village, town or cifrf, or at a highway crossing. But side-tracks not at stations or depots, and such parts of side-tracks as do not constitute a part of the depot yard, may well be held to be within the statute.
    2. Same — duty to provide means of access to depots. It is made the duty of railway companies to establish depots, and so operate their roads as to afford the public reasonable safety and dispatch in the transaction of business; and to effect this, it is necessary that they should, at all reasonable times, provide a ready and convenient means of access to their stations and depots.

      3. Fobmeb decision — overruled in part, and explained. The reasoning of the court in the case of Chicago, Milwaukee and St. Paul R. R. Co. v. Dumser, 109 Ill. 402, in so far as it intimates that the company was derelict in failing to fence its road at its depot grounds, being not necessary to the decision of the case, is not to be treated as authority.
    Appeal from the Appellate Court for the Third District heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    The cow of appellee, running at large, strayed upon the railroad track of appellant in the night time, and was injured by a passing locomotive and train. The railroad track was duly fenced on both sides, except at a station called Marblehead. Here there was a fence all along one side of the track. On the other side was a railroad depot and passenger house, and about twelve feet north of the depot was a coal house. Between the depot and the coal house there was no fence, otherwise that side of the track was fenced fully. The space between the depot and coal house was occupied by a platform of timbers, which furnished the only way for passengers and freight to reach the platform adjoining the track and extending along the front of the depot and coal house. Through this open space between the coal house and the depot the cow strayed upon the track and was injured. The only negligence charged against the railroad company is its omission to have its railroad track fenced at this point. This depot was within about one hundred and fifty yards of a public highway, and there was an open space leading from the public highway to the depot, which was the only mode of approach or egress for freight or passengers going to or from this depot. The depot was near to but not in any village, city or incorporated town, and the depot was not at the crossing of any public road or highway.
    At the close of the evidence the defendant below (appellant) asked the court, among other things, to charge the jury that “the defendant is not bound to fence its- depot grounds, and is not liable for failing to do so, and defendant is not required at all times to employ watchmen or guards to prevent stock from straying upon its track at its depot grounds. ” The court refused to so instruct the jury, but charged if the defendant company “had failed to keep and maintain suitable and sufficient fences to prevent cattle from getting on said railroad track, and because of such failure plaintiff’s cow got upon said railroad and was struck and injured, etc., then the jury should find the defendant guilty,” etc.
    By the statute “every railroad corporation” is required to “erect and maintain fences on both sides of its road, or so much of it as is open for use, suitable and sufficient to prevent cattle * * * from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may hereafter be laid out and platted into lots and blocks, * * * and to construct and maintain at all road crossings * * * cattle-guards, * * * and when such fences and cattle-guards are not made, * * * such railroad corporations” are made liable “for all damages which may be done by the agents, engines or cars of such corporation to such cattle * * * thereon, ” etc.
    Mr. J. F. Cakrott, for the appellant:
    A recovery for stock killed or injured at a place where the track is not required to be fenced, can not be had without proof of negligence. Railroad, Co. v. Bull, 72 Ill. 537; Railroad Co. v. Brown, 23 id. 95.
    A railroad company, under its general duty to fence, is not required to inclose grounds about its stations which are required to be kept open for public convenience.. Pierce on Railroads, 421; 1 Thompson on Negligence, 522.
    Even a private road leading to a public station, and used by the public, may be regarded as a public highway within the exception of the statute. Walton v. Railroad Co. 67 Mo. 56; Morris v. Railroad Co. 58 id. 78.
    Under similar statutes it has been held that no liability exists for not fencing at public roads, stations, etc. Lloyd v. Railroad Co. 49 Mo. 190; Swearingen v. Railroad Co. 64 id. 73; Railroad Co. v. Kinney, 8 Ind. 402; Davis v. Railroad Co. 26 Iowa, 549; Railroad Co. v. Beatty, 36 id. 19; Railroad Co. v. Campbell, 47 Mich. 265; Railway Co. v. Lull, 28 id. 515.
    The proper test is whether the place is a public one. Such are not within the spirit of the statute. 1 Thompson on Negligence, 519, 521; Railroad Co. v. Chapin, 66 Ill. 504; Railroad Co. v. Spangler, 71 id. 578; Railroad Co. v. Parker, 29 Ind. 471.
    As to the duty of railway companies to provide a reasonable means of access to their stations for the public, see Rev. Stat. chap. 114, sec. 20; 1 Redfield on Railways, p. 244, sec. 68; Railroad Co. v. Wilson, 17 Ill. 123.
    The duty of carriage includes giving secure access to and egress from the conveyance. Wharton on Negligence, sec. 652; Railroad Co. v. Riley, 39 Ind. 586; McDonald v. Railroad Co. 26 Iowa, 124.
    Messrs. Sibley, Cabtejr & Govebt, for the appellee:
    The statute imperatively required the appellant to fence both sides of its track, and contains no exception as to stations or depots out of cities and villages laid out into lots and blocks. Laws 1879, p. 224, see. 1.
    The supposed hardship or unreasonableness of the law is not a judicial question, but one to be addressed to the law making power only. Comrs. of Highways v. Comrs. of Highivays, 100 Ill. 631.
    The cases cited by appellant were decided under different statutes, not like the one now in force, and are not authority in the construction of the act of 1879,
   Mr. Justice Dickey

delivered the opinion of the Court:

This ease turns upon the construction of our statute. Looking at the evil sought to be remedied and the means prescribed by the statute, we can not believe that the legislature intended by that act to require that all stations and depots should be fenced in, except such as might stand in public roads, or within the limits of some part of a village, town or city which had been platted into lots and blocks. The statute, by its terms, relates to the road or tn'acks of the railroad. It ought not to be construed so as to embrace that which is not embraced in the statute, and depots and stations are surely not embraced in its terms. True, there is a road or track at the station, but the main feature of the place is not the track. The statute no doubt may embrace tracks other than the main track. Side-tracks not at stations or depots, and such parts of side-tracks as do not constitute part of the depot yard, may well be held to be within the statute ; but the absurdity of holding this station to be required to be fenced is too obvious. The post-office is at this station, also a cooper shop and some other buildings. If this statute be held to embrace the station, it would leave passengers under the necessity of climbing over the fence to get to the ears, for the statute requires gates or bars only at farm crossings.

While this question has never come directly in judgment in this court, so far as we are advised, like statutes have been construed by other courts. It has been held in such cases that the railroad company is not bound to fence up such part of its depot grounds as are required to be open for the convenience of the public in the use of the road. Swearingen v. Missowri, Kansas and Topeka R. R. Co. 64 Mo. 73; Lloyd v. Pacific R. R. Co. 49 id. 199; Morris v. St. Louis R. R. Co. 58 id. 78; Davis v. Burlington R. R. Co. 26 Iowa, 529; J. M. and I. R. R, Co. v. Beatty, 36 Ind. 19; Chicago and Grand Trunk Ry. Co. v. Campbell, 47 Mich. 265; Flint Ry. Co. v. Lull, 28 id. 515; 1 Redfield on Railways, 469; Thompson on Negligence, p. 519, sec. 24.

It is the duty of a railway company to establish depots, etc., and so operate its road as to afford the public reasonable safety and dispatch in the transaction of business. To effect this, and to accommodate those traveling its road or transacting business with the company, it is necessary that it should at all reasonable times provide a ready and convenient means of access to its stations and depots. To require those places to be fenced would cause delay and inconvenience to the public, and detract from the public character of railways. As said by the court in Chicago and Grand Trunk Ry. Co. v. Campbell, 47 Mich. 265: “The regulation for the fencing of the track is established for the public protection and convenience, and a case that incommodes the public is by implication excepted. It would be wholly unreasonable to obstruct with gates the passage of teams to and from the railroad warehouse, in order that cattle might safely, go at large. ”

We hold, therefore, that the railroad company was not bound to fence in its road at a station. The contrary doctrine is not established by the ease of Chicago, Milwaukee and St. Paul R. R. Co. v. Dumser, 109 Ill. 402. The judgment in that ease was properly affirmed, as the railway company had failed to fence its road at the point where the animal got upon its track and was killed, that point being some distance from its depot or station. It was not necessary in that case to decide that the company was derelict in duty in failing to fence its track at the depot, where it received and discharged passengers and freights.

The judgment of the Appellate Court is therefore reversed and the cause remanded, with directions to reverse the judgment of the circuit court and remand the cause.

Judgment reversed,

Mr. Justice Scott : I dissent in toto from this opinion, and for an expression of my views on the questions involved reference is made to the opinion of this court in Chicago, Milwaukee and St. Paul R. R. Co. v. Dumser, 109 Ill. 402. The same section of the statute was construed in that case, and was directly involved. It is so stated in the opinion of the court, and no one expressed any dissent from that statement.

Mr. Justice Walker : I hold that the statute is so plain that it admits of no construction making any exceptions from its specific requirements.


author: Per Curiam :

text:
    William Tarble v. The People of the State of Illinois.

      Filed at Ottawa September 27, 1884.

    1. Biiili of exceptions — its requisites. An exception to the ruling of the court as to the admission of evidence must appear from the bill of exceptions. It is not sufficient that the clerk of the trial court recites there was such exception taken, and this court can not act on such recital.
    2. This court can not pass upon the facts of a criminal case, and decide whether a new trial should have been awarded, where the bill of exceptions fails to state that all the evidence is embodied therein.
    Writ of Error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    This ivas an indictment against the plaintiff in error for robbery, tried at the February term, 1882, of the circuit court of Kane county. The trial resulted in the conviction and sentence of the defendant to six years’ imprisonment in the penitentiary.

      The first point made is, that the evidence was not sufficient to justify the verdict. The prosecution examined James Cook and Dr. Blood, (the latter the person who was alleged to have been robbed,) and rested. The witness Cook testified, in substance, that he knew the defendant; that he (witness) was -in the St. Cloud saloon, in Aurora, on February 4, 1882, at about eight o’clock in the evening; that Dr. Blood came in and took a drink of whisky, and shortly after fell to the floor, insensible; that one Meggison, the keeper of the saloon, asked witness to take Blood out on the street and walk him around, and sober him up; that he led Blood up the stairs and out upon the street, and over to Roach’s livery stable, to let him sober off there; that he went to the door of the stable, and found the door fastened, when he started back to where he left the doctor, and saw Tarble bending over the doctor, and saw him take the doctor’s pin out of his scarf; that he asked Tarble what he was doing, when Tarble said, “that is all right, — you just keep your mouth shut;” that he then took Blood to the Fitch House, where he left him, after taking him up-stairs; that he afterwards saw the watch in the possession of Tarble, and. told him (Tarble) that the “nigger” at the Fitch House would come out on him, and that Tarble then gave him a dollar to give to the “nigger, ” to keep him still, or his “mouth shut. ” On cross-examination the witness said he saw Tarble slip the pin out of Blood’s scarf, and was about twelve feet away; that this was about half-past eight in the evening; that there was no moon, and it was quite dark; that he gave no alarm when Tarble took the pin, and said nothing to any one about the matter; that when he took Blood to the Fitch House he was afraid of Tarble, and that he took the dollar that Tarble gave him to purchase silence.
    Alfred Blood testified that he went to the St. Cloud saloon and took a drink of what he supposed to be whisky, and soon after became unconscious; that the first "recollection he had was of a man standing over him taking something from his bosom, or scarf; that he put his hand up to keep the man away, and found his pin was gone; that he thought the man was a smooth-faced man, and that the prisoner resembled him; that when he came to himself he was at the Fitch House, in bed, and his watch, worth $30, and diamond- pin, worth $100, were gone; that he would not swear that Tarble was the man who took his pin out of the scarf, and that he made no noise or outcry when the person took the pin.
    The defendant called three witnesses, who testified that Tarble was present with them in a back room of the St. Cloud saloon from half-past seven until nine o’clock in the evening of the alleged robbery, but they were not positive he was there all the time.
    The defendant testified that he went to the St. Cloud saloon between six and seven o’clock in the evening, and remained there until nine o’clock; that Frank Clancey called him out, and he went with him to Evans’ and got some oysters; that he did not see Blood on that evening, and did not take any of the articles or property mentioned in the indictment, from him. On cross-examination he testified that he had been arrested before, and had been in the penitentiary for burglary. This evidence was objected to, but the court overruled the objection.
    The People then called O. S. Clayton, M. R. Bruce, John Wolfert, Fred Long, Chris Zimmer, A. Gr. McDole, A. Bus-bee and Isaac Martin, all of whom testified that they were acquainted with the defendant’s reputation for truth and veracity in the community in which he resided, and that it was bad, and that they would not believe him under oath. Bruce said: “I would not believe him under oath. He robbed my store two years ago. ” Wolfert testified that defendant’s reputation was very bad. “I know it is bad, because he stole my goods.” All this was objected to by the defendant, but the court overruled the objection.

      No instructions are given in the record.
    The errors assigned are: First, the court erred in giving improper instructions for the People; second, the court erred in refusing proper instructions asked by the plaintiff in error; third, the court erred in excluding proper evidence offered by plaintiff in error; fourth, the court erred in admitting improper testimony offered by the- People; fifth, the verdict is against the law and the evidence.
    Mr. W. E. S. Hunter, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Per Curiam :

This is a writ, of error, upon which it is sought to reverse a conviction of plaintiff in error upon an indictment for robbery. There is no question of law saved in the record in such manner as to bring the same before this court. The bill of exceptions fails to state that all the evidence is embodied therein. In such case we can not undertake to pass upon the facts. The bill of exceptions shows that several objections were taken to the admission of evidence in the progress of the trial, and that some of these objections were overruled by the court; but -the bill of exceptions does not show that exceptions were taken to such rulings. The abstract is found to be incorrect in this regard. In the recitals made by the clerk it is said, that as to some of the rulings of the court defendant did except. This, as has often been decided, is no part of the record, and we can not act upon the same.

The judgment of conviction is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    The People ex rel. Springfield, Effingham and Southeastern Railroad Company, for use, etc. v. The Town of Bishop et al.

      Filed at Mt. Vernon September 27, 1884.

    1. Municipal aid to railroads — whether a vote thereon was prior to the adoption of the separate prohibitory article. The separate article of the constitution of 1870, prohibiting municipal aid to railroads or private corporations, took effect from and after its adoption by the people on July 2, 1870, which was at the moment the polls were closed and the voting ceased.
    2. Where a township election was duly called, in pursuance of a statute, in'June, 1870, upon the question of a donation of $10,000 in aid of a railway company, to be paid in bonds when the railroad should be completed to a certain place, and the election was set for and held on July 2, 1870, the same day the constitution and the separate article prohibiting municipal aid to railroads or private corporations were submitted to the people, the election officers using, however, a separate ballot box, and both polls were closed at the same time, about sun set, it was held, that it could not be said the vote for the donation was had prior to the adoption of the article of the constitution prohibiting such donations.
    3. In determining whether the election in respect to the proposed municipal aid to the railroad, held under such circumstances, was or was not prior in point of time to the adoption of the separate article prohibiting such aid, the court declined to enter upon the inquiry as to the difference in time between sun set at the particular locality where the municipal election was held, and sun set at other voting places in the State west of that locality, holding that the term “sun set,” as used in the schedule to the constitution, requiring the polls to be kept open on the day of the election in respect to the adoption or rejection of that instrument and the separate article, until that time, was not used in the precise, mathematical sense, but.rather in a more practical sense, requiring only a reasonable approximation to that time.

      i. Municipal bonds — in aid of railroads — bwrden of proof. The burden of proof rests upon parties claiming the right to issue municipal bonds in aid of railroads or other private corporations, or to compel the issuing of such bonds, or asserting the validity of such bonds issued for such purposes since the adoption of the present constitution, to show affirmatively that they were authorized by a vote of the municipality, under then existing laws, prior to the adoption of the constitution.

      Appeal from the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.
    Mr. Lyman Trumbull, and Mr. John S. Cooper, for the appellant :
    Municipal corporations are subject to the will of the legislature, and can obtain no vested rights by virtue of a statute prohibiting or limiting them as to the doing of an act, which may not be subsequently taken away by a repeal or amendment of such statute. Coles v. Madison County, Beecher’s Breese, 160; County Comrs. v. People, 11 Ill. 202; Harris v. Board of Supervisors, 105 id. 445; Richland County v. Lawrence County, 12 id. 1; Trustees of Schools v. Tatman, 13 id. 27; Gutzweller v. People, 14 id. 142; Holliday v. People, 5 Gilm. 214; Shaw v. Dennis, id. 405; Johnson v. Stark County, 24 Ill. 75; State v. Railroad Co. 12 G. & J. 399; Town of Guilford v. Supervisors, 13 N. Y. 143; People v. Mayor, 4 Comst. 419; Darlington v. New York, 31 N. Y. 164; Brewster v. Syracuse, 19 id. 116; Sedgwick County v. Bunker, 16 Kan. 498; People v. Plank Road Co. 27 Barb. 445.
    As to the effect of the repeal of the Limitation act of 1877, see Newett v. Wilcox, 1 Metc. 154; Central Bank v. Empire Stone Dressing Co. 26 Barb. 23; Washburn v. Franklin, 35 id. 599; Key v. Goodwin, 4 M. & P. 341; Butler v. Palmer, 1 Hill, 334; United States Mortgage Co. v. Gross, 93 Ill. 483; Hyman v. Bayne, 83 id. 256; Welch v. Wadsworth, 30 Conn. 149 ; Hepburn v. Curts, 7 Watts, 300; Schenley v. Commonwealth, 36 Pa. 29; Grimm v. Weisenberg School District, 57 Pa. St. 433; People v. Seymour, 16 Cal. 332.
    Did the separate article of the new constitution, prohibiting municipal aid to railroads, adopted July 2, 1870, take effect prior to the donation being voted to this railroad on the same day ? On this point the following citations are made: Schall v. Bowman, 62 Ill. 322; Louisville v. Savings Bank, 104 U. S. 469.

      Mr. S. F. Gilmore, and Mr. R. C. Harrah, for the appellees:
    The writ was properly denied, because of the bar of the statute of May 29, 1877. People v. Town of Granville, 104 Ill. 285.
    The action having been barred by the act of May 29, 1877, in force at the time the liability of the township ceased, the right of defence which the statute furnished was a vested right, of which the township could not be deprived by subsequent legislation. Cooley’s Stat. Lim. chap. 11, sees. 365-369; Wade on Retroactive Laws, sec. 197; Sprecher v. Wakeley, 11 Wis. 442; State v. Lincoln, 17 id. 578; Davis v. Minor et ux. 1 How. 183; Bragg’s Appeal, 43 Pa. St. 43; Gardner v. Stephens, 1 Heisk. 280; Yancy v. Yancy, 5 id. 353; Rockport v. Walden, 54 N. H. 167; Moore v. State, 43 N. J. L. 203.
    The donation having been voted for on the 2d day of July, 1870, simultaneously with the vote of the people in adopting the present constitution, was not prior to the adoption of the article prohibiting such municipalities from making donations to such corporations, and conferred no power upon the municipality to issue, and no right upon the petitioner to receive, the bonds. This article of the constitution went into effect and became operative on the 2d day of July, 1870, and all subscriptions or donations not authorized by a vote of the municipality prior to that time are void. Schall v. Bowman, 62 Ill. 325; Jackson County v. Brush, 77 id. 59; Middleport v. Æna Life Ins. Co. 82 id. 562; Wright v. Bishop, 88 id. 302; Wade v. Walnut, 105 U. S. 1.
    Mr. John C. White, and Mr. B. F. Kagay, also, for the appellees:

      Mandamus will not be awarded unless the petitioner shows a clear legal right to have the thing sought by it done in the manner and by the persons sought to be coerced. People v. Glann, 70 Ill. 232; People v. Lieb, 85 id. 484; People v.
      Klokke, 92 id. 134; People v. Village of Crotty, 93 id. 180; Lavalle v. Soucy, 96 id. 467.
    The burden was on the petitioner to show affirmatively that the bonds were authorized by a vote pursuant to law, prior to the adoption of the present constitution. Wright v. Bishop, 88 Ill. 303; Middleport v. Æna Life Ins. Co. 82 id. 568; People v. Jackson County, 92 id. 453.
    The power in the town to make the donation never came into existence. 1 Dillon on Mun. Corp. sec. 443; Private Laws 1869, vol. 3, p. 198.
    Before the condition of the vote was performed, and before any interest in the proposed donation was vested in the railroad company, the alleged inchoate power of the town to make the donation was extinguished. Cooley’s Const. Lim. 440; Merrill v. Sherburne, 1 N. H. 214; Town of Concord v. Savings Bank, 92 U. S. 630.
    The legislature could not, by the act of June 22, 1883, take away from the town a defence then perfect, and vested in the town by the operation of the Statute of Limitations. Moore v. State, 43 N. J. 204; Cooley’s Const. Lim. (5th ed.) 440, 445, 449, note 5; Naught v. O'Neal, Breese, 36; Hinchman v. Whetstone, 23 Ill. 189; Paullin v. Hall, 40 id. 277; Chiles v. Davis, 58 id. 416; Kallenbach v. Dickinson, 100 id. 435.
    The act of June 22, 1883, will not be construed to be retroactive, and intended to take away from the town the defence already vested under the act of 1877. If it had this intention and effect, its operation would be unconstitutional, because it imposed a debt for local purposes not consented to by the town, to be paid by taxation. People v. Chicago, 51 Ill. 31; Harvard v. St. Clair Drainage Co. id. 132; Dunnovan v. Green, 57 id. 69; Marshall v. Silliman, 61 id. 224; Railroad Co. v. Sparta, 77 id. 509; Cooley’s Const. Lim. (5th ed.) 285, 273, note 4; Const. 1870, art. 9, secs. 9, 10.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 10th of March, 1869, an act of the General Assembly of the State of Illinois, entitled “An act to incorporate the Springfield, Effingham and Southeastern Railroad Company, ” was approved and went into force and effect. In and by that act it was provided, among other things, that counties, townships, cities or incorporated towns, on or near the line of such railroad, might make subscriptions or donations to the capital stock of such company, if they chose to do so, in the manner provided in the act. The substance of the several sections in relation to subscriptions and donations is set forth in the petition so fully, that it appears what authority municipalities had to make either subscriptions or donations to the capital stock of the corporation, and what formalities should be observed in making the same. It is also set forth in the petition that after the act of March 10, 1869, went into force, and prior to the 2d of July, 1870, the railroad company, in accordance with the act of incorporation, had located its road through the counties of Jasper and Effingham, and through the town of Bishop, and that on the 2d of June, 1870, there was presented to the supervisors of the town of Bishop a petition, signed by twenty-five legal voters of the town, praying that an election be held in the township on the 2d day of July, 1870, to decide whether the township, under the provisions of the act of incorporation, would make a donation of its bonds to the company in the sum of $10,000, payable in twenty years, with ten per cent interest per annum, payable annually, on the 2d of June in each year, which sum it was proposed to donate to the railroad company, and deliver to such company its bonds for such amount when its road should be built, and the cars running thereon, from the city of Effingham to the east line of Effingham county. It is also alleged the petition was in due form under the act and in conformity therewith, and that the acting supervisor of the town gave thirty days’ notice of the time of holding such election, in conformity with the prayer of said petition, and named the 2d day of July, 1870, as the time of holding such election, and that the election would be held at the place provided for holding general elections in the township, and that on the 2d day of July, 1870, the election was held at the place and time specified in the notice, and that the same resulted as follows: for donation, forty-four votes; against donation, twenty-two votes. It is also alleged that under some judicial proceeding the claim or right of the railroad company to the donation alleged to have been voted by the township, was directed to be sold by the receiver before that time appointed by the court, to raise funds to aid in completing the road, and at the sale thereof Alfred P. Wright, for whose use the suit is brought, became the purchaser; and that in the month of August, 1883, the railroad having been built, and the cars running thereon, from the city of Effing-ham to Newton, in Jasper county, and beyond, and over the entire road, Alfred P. Wright, for himself, and in the name of the railroad company, being authorized so to do, caused a legal demand to be made on the supervisor and town clerk of the town of Bishop to have issued and delivered to the railroad company, or to Wright, the $10,000 in bonds of the town, with coupons attached, in accordance with the alleged vote. The supervisor and clerk of the town declined to issue the bonds, and the prayer of the petition is for a writ of mandamus to compel them to do so. The petition contains other matters, but it is not thought to be necessary to an understanding of the questions discussed to state them. The defendants made a general denial of the allegations of the petition, and a stipulation was signed by the respective counsel, by which it was agreed that all questions as to the form of the pleadings should be waived, and that petitioner, on the trial, might introduce any competent evidence to support the allegations of the petition, to make out a case, and that respondent might introduce any competent evidence under the general denial, and make all defences thereunder as if the same were' specially pleaded; The caúse was ■ submitted to the court, on the pleadings and the evidence, and the court found the issues for defendants, and dismissed the petition. The relator brings the case to this court on appeal.

A number of defences are insisted upon, but as there is one — if it is well taken — that is fatal to the relief sought, the discussion of all other questions is rendered unnecessary. It is, that the bonds claimed were not voted by the electors of the town sought to be coerced, prior to the adoption of that section of the constitution of the State entitled “Municipal subscriptions to railroads or private corporations, ” which took effect July 2, 1870, and which forbids any county, city or township, or other municipal corporation, thereafter to become a subscriber to the capital stock of any railroad or private corporation, or to make donations to or loan its credit in aid of any such corporation.

It is conceded this separate article of the constitution of 1870 took effect from and after its adoption, and that it was adopted on the 2d day of July, 1870, that being the day on which it, with the body of the constitution, was submitted to the people for adoption or rejection. But a question arising on.the record, and which is presented for decision, is* whether an election which took place on the same day with the voting on the new constitution was annulled by that fact. This exact question. has not before arisen in this court, although cases have been determined, which, if followed to their logical results, must have an important bearing on the question to be decided. Previous decisions of this court have settled definitely that the separate article of the constitution in relation to subscriptions and donations to the capital stock of railroads or other private corporations, took effect from and after its adoption, and that it was adopted on the 2d day of July, 1870, the day on which it, with the body of the eonstitution, was submitted to the people for adoption or rejection. Schall v. Bowman, 62 Ill. 325; Wright v. Bishop, 88 id. 302; Richards v. Donagho, 66 id. 73. It is also settled by the previous decisions of this court, in accordance with the plain meaning of the constitution, that there is now no authority, since the adoption of the present constitution, in counties, cities, towns or other municipalities, to make subscriptions to the capital stock of railroad companies, or to make donation to or lend their credit in aid of such corporations, and that the burden rests upon the party claiming the right to issue them, or to compel the issuing of such bonds, or asserting the validity of such bonds issued for such purposes since the adoption of the present constitution, to show affirmatively that they were authorized by a vote of the municipality, under existing laws, prior to the adoption of the constitution. Jackson County v. Brush, 77 Ill. 59; Middleport v. Ætna Life Ins. Co. 82 id. 562; Wright v. Bishop, supra. In Wright v. Bishop, it was held the clause of the constitution containing the prohibition against municipal subscription or donation in the aid of railroad companies and other private corporations, took effect on the 2d of July, 1870, and' that all such subscriptions or donations not authorized by a vote of the municipality prior to that time, are void. Conceding, as may be done, the words “prior to that time, ” as used in the opinion of the court, simply mean prior to the, adoption of the separate article of the constitution, whenever that was, the inquiry arises, was the donation in this case voted by the municipality, under existing law, prior to the adoption of this article of the constitution on the 2d day of July, 1870 ? "The burden of proving that fact, as has been seen, rests on the relator, and unless it has been shown affirmatively, the relief sought must be denied.

It becomes important, then, to inquire, when was this article of the constitution adopted, and from whát time shall it be regarded as being in force ? Counsel suggest, and with that view this court is inclined to concur, it seems clear this article was not and could not be adopted until after the polls closed at sun down on the day of the election. This view finds support in the decision of this court in Crook v. The People, 106 Ill. 237, where it was held the majority vote of the people “For city organization, ” was the adoption of the general law, and was a perfected act when the vote closed on that day, and that the city officers voted for under the old charter at the same election never became city officers'. Nothing remained to be done, and the old charter was in fact repealed when the voting ceased on that day, and the persons voted for on the same day the general law was adopted, for 'city officers, could not thereafter be qualified under a charter that had ceased to exist. In Louisville v. Savings Bank, 104 U. S. 469, it was held, on authority of the adjudged cases on that subject, that courts, when substantial justice required it to be done, might ascertain the precise hour when a statute took effect, by the approval of the executive; and so, in ascertaining when a constitutional provision was adopted, no reason was perceived why the court might not, in proper eases, inquire as to the hour when such approval became effective, as to the time when, by the closing of the polls, the people had adopted such provision. Adopting this view of the law, it may be held this separate article of the constitution took effect at the close of the polls on the day of the election. It was the will of the people, as expressed by their vote throughout the State, which had the effect to adopt it, and it was an accomplished fact when all the votes had been cast. This is the most favorable view for the relator, counsel can with any show of reason insist upon, and even under this construction it is not thought the donation in this case is saved. On -the undisputed facts of this case, can it be said the donation was voted, under existing laws, prior to the adoption of the separate article of the constitution, regarding that as having taken place at the closing of the polls on the day of the election ? Certainly not. The same construction must be. applied to the donation as to the article of the constitution — that is, that it was not voted until the votes were all cast. Which had priority then? — the adoption of the constitution, or the vote for the donation? It is certainly not enough they were acts occurring at the precise same time. The donation must have been voted prior to the adoption of the constitution, to be valid. When two acts are done at the precise same instant of time, it can not be said one occurred prior to the other. It does not appear from anything in this record the donation was, in fact or in law, voted prior to the adoption of the constitution. In order to entitle relator to relief, it was necessary he should show affirmatively it was so done.

It will be noticed the election whether the town would make the donation, was fixed to take place on the same day of the election for the adoption or the rejection of the constitution by the people of the State. It was held on that day. The same judges and the same clerks conducted both elections, although tw'o ballot boxes were used and separate poll books and tally lists were kept. Both elections were opened at the exact same time, and both were closed at the same time, by one proclamation. The charter of the railroad company, under which the election to vote the donation was held, required the election should be conducted in the same manner and at the same places provided for holding elections in such township. The schedule to the new constitution required the election to be conducted and return thereof made according to the laws then in force regulating general elections, except no registry of voters could be required, and the polls should be kept open for the reception of ballots until sun set of the day of the election. The laws regulating general elections then in force, required the polls to be opened at eight o’clock in the forenoon, and provided they should be closed at six o’clock P. M., unless the judges should decide to keep the polls open to a later hour, which they might do not longer than midnight. The testimony of one of the clerks of the election is, the polls were kept open until about sun down, and that both elections were closed at the same time, by one proclamation. It is evident the election for donation was not closed at six o’clock. The polls were kept open, as the judges had the right to do under the law, and were not in fact closed until about sun down, when the polls for the election on the adoption of the constitution were closed. Whether any votes were east after six o’clock in the afternoon does not appear. The witness does not recollect how that was. The voting was partly done in the forenoon and partly in the afternoon. The last voter whose name appears on the poll book was H. Coleman, or Colemyer, and the testimony is he voted at each election. That is evidence tending also to show both elections were kept open for the same time and were closed at the same hour. Of this fact there can scarcely be a doubt, and the hour at which the polls were closed was about sun down.

Assuming, then, as must be done, the polls for the donation were not closed at six o’clock, but at sun down, what warrant is there for saying the vote on the donation was taken before the separate article of the constitution was adopted? Certainly none. But the argument of counsel for the relator goes further, and as it is understood, assumes that as the schedule to the constitution required the polls to be kept open for the reception of ballots on the question of the adoption of the constitution, until sun set of the day of the election, it will be presumed it was observed everywhere in the State; and even admitting the polls were not closed in the town of Bishop until sun down, as there were voting places farther west in the State than in the town of Bishop, the polls .must have been closed some minutes earlier at the latter place, so that the donation was in fact voted under existing laws before the voting had ceased at the westernmost voting places. Whether that is so, is uncertain; and if a fact, it is scarcely susceptible of being made certain by any proof attainable. It is certain no proof was offered, and the presumption it is insisted should be indulged in support of that view, is overcome by considerations entitled to great weight: First, there is no law that required the polls should be closed precisely at sun set. It was only required the polls should be kept open until that time. Non constat, the polls were kept open in the town of Bishop as late as at any other point in the State. Of course, the record contains nothing on that subject. Second, “sun set, ” although a definite period of time at any given locality, yet what that time is can only be known from scientific calculations, which very few persons are capable of making. It is not precisely. the same on any two days in succession, nor is it exactly the same at any two points distant apart in the State on the same day. It is known the sun sets later at a point west than one further east, and of this fact the court may take judicial notice. The exact difference of time, however, can only be ascertained by a mathematical calculation. Certainly the framers of the schedule to the constitution never expected the judges of election at the several voting places in the entire State would ascertain with mathematical precision the hour of “sun set, ” that they might close the polls at that precise instant. It is believed the term “sun set” was not used by the framers of that instrument in any accurate sense, to be determined by calculation. Evidently all that was meant was that the polls should be kept open until it should appear to be “sun set, ” as that fact might be ascertained by the judges from observation, or from the best information attainable. Nor was it expected the judges at the several voting places throughout the State would observe the hour of “sun set” with exact accuracy. The hour of “sun set” on any given day, as it might appear to different persons, could hardly be expected to be accurately observed. Their judgment might vary many minutes. One person might conclude the sun had set, and another might not think so. It would be a mere matter of judgment, and uncertain at that, aided by the most accurate information ordinarily possessed. At most, the actual difference in time of “sun set” at the voting place in the town of Bishop and at the westernmost place in the State would be but a few minutes, and is so slight as to be almost, if not entirely, inappreciable by common observation. It might be that 'the judges at the latter place would conclude it was “sun set,” and close the polls before the judges at the former place would conclude the hour for closing the polls had arrived, or before they deemed it necessary to close the polls.

Conceding, then, that the 'polls were closed in the town of Bishop at what the judges thought was “sun set,” there is no warrant for the proposition that was in fact earlier than the polls were closed at the westernmost voting place in the State, or elsewhere in the State. Whether the polls on the day of the election were, as a matter of fact, closed at an early or later time at one place than another point in the State, rests entirely on conjecture, and is too uncertain to base a judicial finding upon it. There is nothing in the record that shows or tends to show the donation insisted upon was voted prior to the adoption of the constitution, assuming, as it is thought may be done, it was adopted when the votes were all cast, on the day of the election.

It is suggested the decision of the Supreme Court of the United States in Louisville v. Savings Bank, 104 U. S. 469, ought to have great weight in the decision of this case. Were the facts analogous, the authority of the case would be freely acknowledged as being entitled to great consideration. That case involved the legality of a vote taken on the 2d of July, 1870, to issue bonds for the payment of a donation that had been previously voted. The town meeting to determine whether bonds should be issued in lieu of a special tax, was appointed to be held at nine o’clock in the forenoon of the 2d of July, 1870, and it was so held. It was on that state of facts the court said: “The presumption may be therefore fairly indulged that the township had in fact voted for issuing bonds before the close of the general election on the same day the people of'the State voted on the adoption of the particular section of the constitution separately submitted, which relates to the municipal subscriptions to railroads and private corporations.” But in the case being considered there can be no presumption indulged the electors of the town voted the donation before the close of the general election, for the evidence, to say the least of it, leaves that question in doubt, so that it can not be fairly said it affirmatively appears the donation was voted before the adoption of the article of the constitution separately submitted, which prohibits all subscriptions or donations to railroads or other private corporations.

This view being conclusive of the whole case, it will not be necessary to consider the constitutionality of the act of June 22, 1883, which declares, “the liability of all counties, cities, townships, towns or precincts which have-voted aid or donations to or subscriptions to the capital stock of any railroad company, in conformity to the laws of this State, for the building or in aid of the building of any railroad to, into, through or near such county, city, township, town or precinct, to issue such voted aid, shall cease and determine upon and after the 1st day of September, A. D. 1883, and no bonds shall be issued or stock subscribed to any such railroad company after that date, upon account of or upon the authority of such vote, ” which would otherwise be directly involved in the decision to be made, nor will it be necessary to discuss any other question raised on the record.

The judgment of the circuit court will be affirmed.

Judgment affirmed.