author: Mr. Justice Scholfield Per Cueiam :

text:
    Christian Stern et al. v. The People, for use of St. Clair County.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

      1. OmciAii bonds—surety—neglect to require an accounting by county treasurer—effect on liability of surety. Statutory directions to public officers are given for the security and convenience of the government, and to regulate the conduct of its officers, and being only directory, they form no part of the contract of the sureties of such officers upon their official bonds, and hence the sureties on a county treasurer’s bond can not plead the negligence or failure of the county board to require their principal to render an account, or to remove him for neglect to render such account, as a defence to their liability upon a subsequent breach of his bond.
    2. Same—forgery of the name of one of the sureties. The fact that the name of one of the sureties to an official bond has been forged, will not discharge a surety who subsequently executes the bond in ignorance of such forgery.
    3. Same—former decisions. In Seely v. The People, 27 Ill. 173, it was held, where a party executes a bond as surety with another whose name has been forged, he will not be liable; but in Stoner v. Millikin, 85 Ill. 218, that case is overruled. And the case of The People v. Organ, 27 Ill. 29, in so far as it makes a distinction in this regard between commercial paper and other instruments, is overruled by City of Chicago v. Gage et al. 95 Ill. 593.
    4. Same—how a surety may obtain his release. The only mode by which the sureties on a county treasurer’s bond can be released from further liability, is by giving notice requiring him to give a new bond, under the statute. In this way they may compel the execution of a new bond with other sureties, or a vacation of the office.
    5. Same—as to county orders held, by a bank, as against deposit by county treasurer—rights of surety. Under an arrangement between a county treasurer and a bank, whereby the former was to deposit revenue with the bank, and the bank be allowed to place county orders to its own credit as against the deposit, the sureties of the treasurer can not claim a payment of all orders in the possession of the bank at the time of the treasurer’s default and removal, when nothing in fact has been paid by him on such orders. As between the treasurer and the bank, the former would be entitled to have the orders delivered up to him to the extent the money deposited by him had been treated as paying for them, or the set-off actually made, but no further, and his sureties occupy no more favorable position.
    6. Officer—“successor in office”—on removal of county treasurer. "Where a county treasurer is removed by the county board for refusing to make a settlement, etc., the person appointed by the board in his place is his successor in office, and is required to perform all the duties of the office until another treasurer is elected, and as such officer has the right to make a demand of the treasurer so removed for the funds in his hands, and on his failure to pay over on such demand, an action lies on his official bond.
    7. Judicial and ministerial powers—removing county treasurer. The power to remove a county treasurer, conferred upon the county board, is not a judicial power, but is a ministerial or executive power.
    8. Evidence—report of officer, as against his sureties—record of removal from office. The reports of a county treasurer, in his handwriting, presented to the county board, as well as the record of the board approving them, are competent evidence against his sureties in an action on his official bond.

      9. Also, the record of the removal of the treasurer from office by the county board, is admissible in evidence in such suit, as against the sureties on the bond, that being the best evidence of the fact of removal, and of the cause thereof. It is proper the ground of removal, as, that the officer had been found to be a defaulter, should be recited in the record, and the -part of the record containing such recital is admissible as well as that part showing the fact of removal itself.
    „ 10. Same—testimony of deceased witness—how shown. There is no error in refusing to allow in evidence a bill of exceptions showing the testimony of a deceased witness. Witnesses should be called to prove, from their recollection, what was the testimony of the deceased witness.
    11. Interest—on county treasurer's account from settlement. Where a county treasurer renders an account to the county board, its approval by that body liquidates and settles it up to that time, and interest at the rate of six per cent is allowable thereon from such date, in a suit upon his official bond.
    12. Same—retention of money by county treasurer. Where a county treasurer retains money of his county to his own use, which retention is at the time unknown to the county board, under the statute he is chargeable with interest on the same, in a suit on his official bond.
    13. Instruction—should be based upon the evidence. Where there is not only no evidence on which to predicate an instruction, but there is evidence directly to the contrary, it is not error to refuse the same.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Willlam H. Snyder, Judge, presiding.
    This was an action of debt by the People of the State of Illinois, for the use of St. Clair county, on the official bond of George W. Sieber, late treasurer of that county, against the obligors therein. The special breach assigned is, that Sieber had refused to make a report to the county board, at the regular session of said board, held the first Monday of December, 18T8, of the amount of money, county orders, jury certificates, and other funds received by him, from every source, subsequent to his last accounting, and that he was then and there in arrear and indebted to the county in a large sum of money, to-wit: $50,000, and was then and there a defaulter in his office, and refused to answer touching the funds-of said county, and to settle his accounts; that therefore the county board, on the 11th of February, 1879, removed said Sieber from office, as such treasurer, and appointed Madison T. Stookey to fill the vacancy, and to be his successor in office for the unexpired term, etc.; that said Stookey qualified, and was duly commissioned, filed his bond, etc., and entered upon his office, and that Sieber did not pay over to his successor said $50,000, upon demand, etc., but refused so to do, etc.
    Sieber’s appearance was entered, and a plea filed, on his behalf, of general performance of the condition of the bond. The sureties then severally pleaded non est factum, verified, and also the following special pleas:
    The first plea denies the specific breaches assigned, and especially that the said Sieber did not refuse to pay over to his successor. To this plea the plaintiffs joined issue.
    The second plea alleges that said Sieber was county treasurer for two years previous to his term, commencing the first Monday in December, 1877, and for which last term the defendants became sureties on his bond, and that the default complained of happened at the said previous term. To the second plea the plaintiff filed a replication that the said sum of money sued for came into Sieber’s hands in manner and form as in said declaration alleged. To this replication the defendants demurred, and the court carried back said demurrer to the said second plea, and sustained it thereto, so that the said plea stands ruled out by the demurrer.
    The third plea of the defendants alleges that as to the sum of $20,000,—part of the sum demanded,—they were sureties merely; that it was the duty of said Sieber, as treasurer, to make his report to the county court at its regular December term, 1878, of money, county orders, jury certificates, and other funds; that Sieber failed to make such report, and that the county court did not then and there, and at that term, remove said Sieber from office, but permitted him to hold his' office for three months from that time, and to receive funds belonging to the county to a large amount, to-wit: the amount of $20,000. To this plea there was a demurrer, which was sustained by the court.
    The fourth plea alleges that there was not, at any time, a successor to the said Sieber, to whom he could have paid the said money alleged to have been in arrear. Upon this the plaintiff joined issue.
    The fifth plea alleges that said writing obligatory had not been approved by the county board before it was filed with, the county clerk. Upon this issue was joined.
    The sixth plea alleges that defendants are sureties; that it was the duty of the county board to at least once in six months examine the books of account of the treasurer,'and it was the duty of the county clerk to enter upon the records of the county board the amount and kind of funds found- to be in the treasury at that time, and that the county court have not performed that duty since the execution of said bond, and the clerk has not entered upon the records of the county board the amount and kind of funds found in the treasury. This plea was demurred to, and demurrer sustained, and leave given to amend.
    The sixth plea was amended so as to allege, in substance, that after the county court had removed Sieber, it became their duty to appoint a suitable person to perform the duties of said office, and they appointed M. T. Stookey such suitable person, and that Sieber never refused to pay over any money to a successor,—to which plaintiff replied that Sieber did refuse to pay over to his successor. To this replication to the sixth plea there was a demurrer, which was carried back to said sixth amended plea, and sustained as to said plea.
    The seventh plea alleges, on the part of all the defendants except Sieber and Christian Stern, that Christian Stern’s name was the first of the names of the sureties when they signed the said bond, and that the said bond was never signed by the said Stern, but was a forgery, which they did not know at the time when they respectively signed the said bond. This plea was demurred to, and demurrer sustained.
    The eighth plea is a plea by the sureties, of general performance of the conditions of the bond by the principal, Sieber,—to which there was a general replication.
    The ninth plea alleges that before Sieber was removed from office he had tendered his resignation, in order to release his sureties from further liability which they might incur by reason of his remaining in office, and said county court refused to accept his resignation. This plea was demurred to, and the demurrer sustained.
    The case was then continued to the September term, 1879, at which term the case was, by consent, tried by the court, and a verdict was found for plaintiff, amounting to $26,590. Judgment was rendered accordingly. The case was appealed to the Appellate Court, at the February term, 1880, and by that court affirmed. An appeal was then prosecuted from the judgment of the Appellate Court to this court, and the judgment of the Appellate Court was, by this court, reversed, and the cause remanded. See Stern et al. v. The People, use, etc. 96 111. 475.
    After this, the plaintiff filed three replications to defendants’ third plea, which need not be set out, since no question to be now determined- arises upon them.
    The cause was submitted to a jury at the February term, 1881, of the circuit court, and they rendered a verdict for the plaintiff, assessing the damages at $30,337. The court, after overruling a motion for a new trial, rendered judgment for the penalty of the bond ($200,000), to be discharged by the payment of the damages assessed by the jury—$30,337. Appeal was prosecuted from that judgment to the Appellate Court for the Fourth District, and it was there affirmed. The present appeal is from the last mentioned judgment. Errors were assigned, raising the questions discussed by the court in its opinion.
    Messrs. G-. & Gr. A. Koernee, for the appellants,
    contended, in an extended brief, that the neglect of the county board to remove the principal, for neglect of duty, etc., released his sureties for any subsequent defaults, citing Eev. Stat. 1874, chapter entitled “County Treasurer, ” secs. 10, 14, 15; The People v. Jansen, 7 Johns. 332.
    The seventh plea, that the first of the names on the bond appearing as surety, was forged, and that the other signers of the bond did not know anything of the forgery, was interposed on the strength of the ruling in Seely v. The People, 27 Ill. 173.
    It is claimed that case has been overruled in Stoner v. Millikin et al. 86 Ill. 218. In the latter case commercial paper was in question, and it is well known that distinctions are made in favor of such paper. The People v. Organ et al. 27 Ill. 29.
    When the suit was brought there was no successor of Sieber to whom he could have paid the money. To prove there was such successor, the plaintiff produced the record, and read the order of removal, and appointment of Stookey ■as his successor. This the law does not justify. A successor can only he elected, and Stookey can be only looked upon as a provisional appointee. The record of the county board being made in Sieber’s absence, could not be properly admitted against him. The defalcation was to be proved by his accounts and books.
    Under the arrangement between Sieber and the bank that his deposit account should be charged by county orders taken by the bank, the sureties should have been allowed credit for such county orders held by the bank against the treasurer’s deposit.

      Interest was not properly allowable against the defendants. Madison County v. Bartlett et al. 1 Scam. 67; Sammis v. Clark, 13 Ill. 544.
    Interest is only allowable as provided by statute. Illinois Central R. R. Co. v. Cobb, 72 Ill. 148; Chicago v. Alcock, 86 id. 148.
    What is meant by vexatious delay, and that defending suits is not such delay, see Aldrich v. Dunham, 16 Ill. 403.
    Interest under our statute, (sec. 2, act of May, 1879,) which, in this particular, is like- the former statutes, is not chargeable on an open account, where it has not been liquidated, and a balance agreed upon. Flake v. Carson, 33 Ill. 518.
    A creditor is not entitled to interest on a balance on an account, unless there has been a promise to pay interest, or an unreasonable delay of payment". Myers v. Walker, 24 Ill. 133.
    We have carefully examined all the cases on official bonds decided by this court, and we have not been able to find one case where such interest was even claimed. In the ease of Gage et al. v. City of Chicago, 95 Ill. 593, it appears from the reported ease, that on the 16th of December, 1873, there was a deficit of $507,703 on the part of Gage, after he had paid over to his successor the sum of $458,077.23. The case was decided several years after 1873, but the verdict was for the deficit only, and no interest was allowed.
    Messrs. Wilderman & Hamill, Messrs. Noetling & Halbert, and Mr. E. D. W. Holder, for the appellees:
    The law requiring periodical reports and examinations of the accounts of officers, is directory merely, and ■ for the benefit of the public, and not for the benefit of- the sureties of the officer, and they have no right to rely upon Detroit v. Weber, 26 Mich. 284; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 id. 184; United States v. Nicholl, 12 id. 505; United States v. Boyd, 15 Peters, 187;
      Jones v. United States, 18 Wall. 662; Gibbons v. United States, 8 id. 269; Osborne v. United States, 19 id. 577.
    The negligence of the county hoard, if there was any, in failing to remove Sieber, does not absolve his sureties from liability on the bond. Coons v. The People, 76 Ill. 383; Cawley v. The People, 95 id. 249; Ryan v. United States, 19 Wall. 514; Angell & Ames on Corporations, sec. 321.
    In this ease there was no neglect, or even unreasonable delay, on the part of the board. But even if there was, it could not avail appellants as a defence. The county board has no such control of public moneys as would render its negligence, or even its willful disobedience of the law, binding upon the county, so far as to absolve appellants from their duty to answer for the defaults of their principal, whether they occur before or after the negligence of the board. Cawley v. The People, supra; Coons v. The People, 76 Ill. 338; Sherlock v. Village of Winnetka, 59 id. 389; Jackson v. Norris, 72 id. 364; Detroit v. Weber, 26 Mich. 284; Supervisors v. Jones, 19 Wis. 51; Supervisors v. Knipfer, 37 id. 496 ; Gallery v. National Ex. Bank, 41 Mich. 169; Brandt on Surety and Guaranty, secs. 474-6; Angell & Ames on Corp. sec. 321.
    The case of The People v. Jansen, 7 Johns. 332, cited by counsel for appellants, is not in point; but even if it were, it has been so ofteii overruled and its authority denied, that it is scarcely worth while to allude to it. The following cases have expressly denied its authority, or announced principles squarely opposed to it: Cawley v. The People, supra; People v. Russell, 4 Wend. 720; Minors. Mechanics’ Bank, 1 Pet. 46; Amherst Bank v. Root, 2 Metc. (Mass.) 522; United States v. Vanzandt, supra.

    The appointment of Stookey as Sieber’s successor was strictly according to the law. Rev. Stat. 1874, ch. 36, sec. 15; ch. 46, sec. 133.
    The fact that the name of one of the first sureties on the bond was forged, is no defence by sureties signing after-wards, counsel cited Stoner v. Millikin, 86 Ill. 218; State v. Pepper, 31 Ind. 76; York County Fire Ins. Co. v. Brooks, 51 Me. 506; Terry v. Hazlewood, 1 Duv. 104; Selser v. Brock, 3 Ohio St. 302; Smith v. Peoria County, 59 Ill. 412; Dair v. United States, 16 Wall. 1; McCormick v. Bay City, 23 Mich. 457; Brandt on Guaranty and Surety, secs. 336, 356; State ex rel. Baker v. Brown, 64 Mo. 169; Statute, etc. v. Potter, 63 id. 212; Franklin Bank v. Stevens, 39 id. 533.
    The reports of Sieber were properly admitted in evidence with other proof, and the records of the board approving the reports are proper evidence, because when presented and approved it becomes conclusive. Morley v. Town of Metamora, 78 Ill. 394; Roper v. Sangamon Lodge, 91 id. 518; Pendleton v. Bank of Kentucky, 1 B. Mon. 181; Townsend v. Everett, 4 Ala. 607; Frazier v. Laughlin, 1 Gilm. 347.
    The offer to prove the deceased witness’ testimony by a bill of exceptions taken on a former trial, was properly rejected Roth v. Smith, 54 Ill. 431; Mineral Point R. R. Co. v. Keep, 22 id. 9.
    As to various instances in which -interest is recoverable in suits on official bonds or other instruments, counsel cited Frazier v. Laughlin, 1 Gilm. 347; Magner v. Knowles, 67 Ill. 325; Crane v. Dygert, 4 Wend. 675; Bedell v. Janney, 4 Gilm. 193; Chapman v. Burt, 77 Ill. 337; Bodge v. Perkins, 9 Pick. 368; Tappan v. People, 67 Ill. 339; United States v. Curtis, 100 U. S. 119; People v. Gashier, 9 Johns. 71; Thompson v. Board of Trustees, 30 Ill. 99; United States v. Prescott, 3 How. 578; Bernard v. Bartholomew, 22 Pick. 291; Greeley v. Hopkins, 10 Wend. 96.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The third plea interposed the defence that the failure of the county board to remove Sieber from office, because of his default in making his report to that board at its December term, 1878, relieved the sureties from liability for breaches of the bond occurring subsequent to that time. The circuit court, by sustaining a demurrer to the plea, adjudged the defence invalid, and such was also necessarily the ruling of the Appellate Court in affirming the judgment of ■ the circuit court. The correctness of this is contested by appellants in argument.

It has long been held by the Supreme Court of the United States that statutory directions to public officers are given for the security and convenience of the government, and to regulate the conduct of its officers, but that, being directory, they form no part of the contract with the surety, and hence sureties on bonds for the collection of revenue can not plead the negligence or failure of public officers to require their principal to render.an account, or to remove him for neglect, as required of such' officers by law, as a defence to their liability upon a subsequent breach of his bond. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 id. 184; United States v. Boyd et al. 15 Pet. 187; Jones et al. v. United States, 18 Wall. 662; Ryan v. United States, 19 id. 514.

The power to remove a treasurer, under our statute, is not, as counsel contend, a judicial power,—it is a ministerial or executive power. Donahue v. County of Will, 100 Ill. 94.

The People v. Jansen, 7 Johns. 332, cited in support of this plea, is not in harmony with the rulings of the Supreme Court of the United States, above. referred -to, - nor with those of this court, and it' was subsequently overruled by the court in which the case was decided, so fax as affects the present question. The People v. Russell, 4 Wend. 570.

This court has held, upon like principle, with the ruling of the Supreme Court of the United States, supra, that the default of the treasurer is not excused by the negligence of the county board, and it can not be interposed as a defence by the surety. (Coons v. The People, 76 Ill. 391, and Cawley v. People, 95 id. 249.) The statute has provided a mode whereby sureties upon official bonds may be released from further liability, (Rev. Stat. 1874, p. 729, see. 10,) and if appellants truly desired, at the time claimed, to be released from further liability on Sieber’s bond, they should have pursued that mode. It was within their power thus either to have compelled the execution of a new bond, with other sureties, or a vacation of the office, then, and to have effectually relieved themselves from further liability. And this is the only mode of which we are aware by which they could have released themselves from further liability.

The defence is clearly without merit, and the "demurrer to the plea was properly sustained.

The sixth plea, as amended, avers that it was the duty of the county board to, at least every six months, examine the books of account of the county treasurer, and count the funds and make settlement with such treasurer; th$t the county board did, on the 10th day of February, 1879, examine the books of account of the said George W. Sieber, then county treasurer, and the said Sieber, on said day, neglected and refused to render an account to said county board, and refused to answer questions propounded to him by sai0d board; that it became then and there the duty of said county board to remove said Sieber from office, and to appoint some suitable person to perform the duties of the said office until his successor was elected or appointed and qualified; that' in pursuance of said duty the said board appointed one Madison T. Stookey as a suitable person to perform the duties of said office, and that there has been no successor elected or appointed to said George W. Sieber, and that the said George "W. Sieber has never refused to pay over to his successor, etc. A demurrer to the replication having been carried back and sustained to this plea, we are asked to pass upon its sufficiency.

Since the manifest purpose and effect of the plea is only to question the right of Stookey to act as successor in office to Sieber, and to demand and receive from Sieber the moneys, etc., in his hands, it is plain that it is argumentative, and obnoxious to a special demurrer. But it is equally clear that the facts alleged constitute no substantial ground of defence, and so the plea is also obnoxious to a general demurrer.

It is provided by sec. 15, ch. 36, Rev. Stat. 1874, p. 324: “If any county treasurer shall neglect or refuse to render an account or make settlement at any time when required by law, or by the county board, or refuse to answer any question propounded to him by the county board, or is a defaulter, and in arrears with the county, or is guilty of any other misconduct in his office, the county board may remove him from office, and may appoint some suitable person to perform the duties of treasurer until his successor is elected or appointed and qualified. The person so appointed shall give bond and security as required by law of the county treasurér. ” The phraseology is somewhat obscure as to whether it is intended the person thus to be appointed shall perform the duties of treasurer until his own successor shall be elected or appointed and qualified,c, or until a successor to the removed treasurer shall be elected or appointed and qualified. Appellants, assuming the last to be the correct construction, contend that Stookey was only acting until the appointment of a successor to Sieber, and that Sieber was bound to pay over to none but a successor. That the former is the correct view we entertain no doubt. The person appointed “shall perform the duties of treasurer, ”—not certain designated duties, but in general and unrestricted terms, “the duties, ” i. e. all the duties, “of treasurer, ”—and this includes necessarily the demanding and receiving from his predecessor in office the money, etc., in his hands. And in requiring that he shall give bond and security, as required by law of the county treasurer, he is required to give bond, with sufficient security, that he shall perform all the duties which are or may be required by law to be performed by him as treasurer, etc., and that when he shall be succeeded in office he shall surrender and deliver over to his successor in office all books, papers, money, etc., belonging to said county. (See sec. 2, ch. 36, Rev. Stat. 1874, supra.) Where the vacancy caused by the removal exceeds one year, an election must be called to fill the vacancy, and in such case the person appointed will hold only until his successor shall be elected and qualified, etc. (Sec. 133, ch. 46, Rev. Stat. 1874, p. 468.) But however brief the term which the person appointed shall fill, he is, until his successor is elected or appointed and qualified, treasurer of the county, and consequently successor in office to the treasurer removed, and whose place he fills.

The ruling sustaining the demurrer to the seventh plea presents the question whether the fact that one of the names of the sureties was forged releases the sureties subsequently signing, who did not then know that the name was forged.

In Seely v. People, use, etc., 27 Ill. 173, this court held where a party executes a bond as surety with another whose name has been forged, he will not be liable. But in Stoner v. MilliJcin, 85 Ill. 218, this ease was overruled, and it was held where one of two innocent parties, as, the payee or surety upon a promissory note, must be a loser by the deceit or fraud of another, the loss must fall on him who employs and puts trust and confidence in the deceiver, and not on the other. Counsel for appellants, however, insist this case only modifies Seely v. People, use, etc., in favor of commercial paper, leaving it in full force and effect in all other cases, and they cite The People v. Organ, 27 Ill. 29, as making such a distinction. But that ease, in this precise respect, is overruled by City of Chicago v. Gage et al. 95 Ill. 593, and it was there held, in a suit upon the bond of the treasurer of the city of Chicago, that the apparent authority of the principal in an obligation which has been executed in blank by others as sureties, to fill in the blanks in an appropriate manner, may be implied from the facts and circumstances attending the transaction, and' may be shown by parol, and that this rule applies to instruments under seal as well as to those which are not under seal.

Where a person signed an official bond as surety, and it was agreed between him and the principal in the bond that it should not be delivered to the obligee until another person, who was named as a surety, should sign the bond, but it was delivered without obtaining his signature, we have held, in the absence of notice, the obligee has the right to presume that the surety had conferred full general authority to deliver the bond,—that such agent may bind his principal to the extent of his apparent authority. Smith v. Peoria County, 59 Ill. 412; Comstock et al. v. Gage, for use, etc. 91 id. 328 ; City of Chicago v. Gage et al. supra.

The principle is conclusive on the facts here. The subsequent sureties relied upon Sieber, and made him, ostensibly, their agent to deliver the bond. If Sterns’ name was forged, it was Sieber, and not the obligees of the bond, nor the county board, who betrayed and deceived them, and delivered the bond in violation of the condition, express or implied, upon which they signed and placed it in his possession,—and so the consequences of the forgery must fall upon them, and not upon the People. State ex rel. v. Baker, 64 Mo. 167.

In The People v. Coons et al., an original suit upon a treasurer’s bond, (at January term, 1875,) plea, to like purport as that before us, was interposed by certain of the sureties, that the name of a prior surety was forged, and we sustained a demurrer to the plea, upon the grounds hereinbefore stated, but no opinion was filed giving the reasons of the ruling; and we have ruled to, like effect in other unreported original suits upon treasurers’ bonds.

The question raised in argument in regard to the sufficiency of the fourth plea, is answered by what we have said 'in -regard to the sixth amended plea.

It is objected that on the trial before the jury a paper was introduced as Sieber’s September, 1818, report, and, over appellants’ objections, read in evidence to the jury: There was no error in this. The proof shows that' it was in Sieber’s handwriting, and presented by him to the county board as his report. The reports of Sieber were competent evidence against his sureties, as were also the records of the county board approving them. Morley v. Town of Metamora, 18 Ill. 394; Cawley v. The People, supra; Smith v. Peoria County, supra.

Nor do we think there was any error in permitting the record showing the removal of Sieber, to be read in evidence. The county board had power to remove him, (Donahue v. County of Will et al. supra,) and the record of removal was the best evidence of that fact, (McHaney v. County of Marion, 77 Ill. 488,) and it was material to the issue that proof of the removal be made.

It is also -objected that the court erred in refusing to allow the bill of exceptions giving the testimony of a deceased witness to be read in evidence. The objection is not tenable. Witnesses should have been called' to prove, from their recollection, what was the testimony of the deceased witness. Roth v. Smith, 54 Ill. 431; Mineral Point R. R. Co. v. Keep, 22 id. 9.

We perceive no error in the refusal of the court to give appellants’ instructions, as asked. From the record it would seem there is not only no evidence upon which to predicate these instructions, but evidence directly to the contrary of what they assume, and their refusal might, therefore, be predicated upon this ground. But they proceed upon the hypothesis that an arrangement between Sieber and the National Bank of Belleville, whereby Sieber should deposit revenue with the bank, and the bank should be allowed to place county orders to its own credit, as against Sieber’s deposit account, would, as between the People and the sureties of Sieber, be a payment of all orders in the possession of the bank at the time of Sieber’s default, notwithstanding nothing was, in fact, paid by Sieber upon such orders. Although such a transaction would be liable to objection, we fail to perceive any principle upon which it could be held the orders were paid and entitled to be canceled. As between Sieber and the bank, he would be entitled to have the orders delivered up to him, to the extent that the money deposited by him had been treated as paying for them, but no further; and his sureties occupy no more favored position. . The transaction might, possibly, be entirely repudiated by the People, and Sieber held to account for all money deposited by him, without regard to claimed credits of county orders purchased; but this can give Sieber’s sureties no right to say that a mere contract to set off county orders against a deposit account shall be held as a payment of the orders, when no set-off has been actually made, and there is no fund against which it can be made.

The only remaining question deemed necessary to be noticed, is, was interest, at six per cent per annum, properly allowed upon the amount of defalcation. We think it was. By our statute in relation to interest, (Bev. Stat. 1874, chap. 74, see. 2, page 614,) it is provided: “Creditors shall be allowed to receive at the rate of six per centum per annum, * * * on money due on the settlement of account, from the day of liquidating accounts between the parties and ascertaining the balance, on money received to the use of another, and retained without the owner’s knowledge.” It would seem, on the record before us, there is ground to justify the allowance of interest under both of these clauses. The accounts rendered by Sieber to the county board, and their approval by that board, liquidated and settled the accounts up to their respective dates, and ascertained the balance then due. Appellants, themselves, gave evidence of an account stated by Sieber’s attorneys in fact, on March 4, 1879, . acknowledging a balance due of $26,592.01, and interest upon this amount will produce an amount which, added to the principal, will equal the judgment. There was, too, a report by Sieber himself, on the 1st of December, prior, admitting a balance due from him of $30,354.68, which is more than the amount for which the judgment was rendered. The-reduction was in- the interest of the appellants, and, of course, was not objected to. But the fact of the balance on the settlement of account is beyond controversy, and interest was properly computed thereon. Ditch, Admr. v. Vollhardt, 82 Ill. 134.

The case made by the record is clear that Sieber retained this money to his own use, and that the act of retention was, at the time, unknown to the county board, and so it is within the letter and the spirit of the statute. And upon this principle we have held, where an attorney collects money for another and converts it to his own use, or fails to pay it over to the person entitled, on demand, he is chargeable with interest. Bedell v. Janney, 4 Gilm. 193; Chapman v. Burt, 77 Ill. 337. And where a constable collects money on execution, and refuses to pay it over on demand, he is chargeable with interest in a suit on his official bond. So, also, upon like principle, it has been held by the Supreme Court of the United States, that in an action against the sureties upon the bond of a pay-master in the army, interest was recoverable, and as in that case no demand was made previous to bringing suit, it was held the interest should be computed from the date of the service of the writ.

Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Cueiam :

A petition for rehearing is presented in this case, in which it is insisted we have failed to give sufficient consideration to three points made in appellants’ brief, namely: First, that the court below erred in admitting in evidence that portion of the order of removal .of Sieber reciting that the county commissioners found him to be a defaulter, etc ; second, that the court below erred in excluding evidence of the state of accounts between Sieber and the First National Bank of Belleville, on the 1st day of December, 1875, and on the 1st day of December, 1876; and third, that the court below erred in refusing the first and second instructions asked by appellants. We have given a patient and careful consideration to the questions thus presented, and are of dpinioh they were properly decided by the court below.

Under the issues, it was incumbent on appellees to prove that Sieber was legally removed from office, and his successor appointed. The commissioners could remove for no other causes than those recited in the statute. A removal for any other cause would not create a vacancy, (Clark v. The People, 15 Ill. 217,) and the record of the board afforded the best evidence of his removal, and the cause thereof. (McHaney v. County of Marion, 77 Ill. 488.) Besides this,-it was impossible that this finding that Sieber was a defaulter could in any way have prejudiced the sureties, (even if the fact were conceded, which 'is not, that they are not bound by the recitals of this record,) for other evidence abundantly established the fact that he was a defaulter.

The state of accounts between the bank and Sieber in 1875 and 1876, before the bond in suit was executed, and before the term of office for which it was executed commenced, could not have any bearing on the issues being tried. The September report of Sieber was conclusive on the question of a former defalcation, and counsel disclaimed that the purpose was to prove any special arrangement between Sieber and the bank. We still think, as said in the former opinion, that the evidence expressly shows that the bank had no arrangement by which it bought up county orders for Sieber. Andal, the cashier of the bank, testified, and no one contradicted him: “Had no agreement with him” (Sieber) “in his official capacity, to pay county orders for him. ” This witness also said, that as long as he remained in the bank it cashed county orders right along,—that even on the day Sieber left, it paid them right straight along. “We did it, ” said he, “for the accommodation of our customers, and for our benefit. It brings us customers sometimes. Took -those orders like other good paper.”

Nor can we agree with counsel that the fact that .the bank, sometimes, in settling with Sieber, charged Sieber-with the county orders and took credit for a like amount, of deposits, is evidence that the bank bought the county orders as Sieber’s agent. It is evidence that the bank treated.the county orders, as entitled to be paid out of the fund credited to Sieber, and nothing more. Had the bank, in its settlement with Sieber, offset his paper against his deposit, surely this could not be held to be evidence that it had bought the paper as his agent,—it could only be evidence that it claimed to be the lawful holder of paper of his which it was entitled to set off against his account; and this is precisely, as we think, the only presumption that could arise in the transaction here supposed, and so the instructions were properly refused. In preparing the original opinion, we supposed the views here expressed were obvious, therefore needed no special notice.

The prayer of the petition is denied.

BeJieming denied.


source: Caselaw Access Project

author: Mr. Justice Walker Mr. Justice Mulkey : Mr. Justice Dickey,

license: Public Domain

text:
    Wiggins Ferry Company v. City of East St. Louis.

      Filed at Mt. Vernon March 29, 1882

      Rehearing denied May Term, 1882.

      1. License—power of the legislature—license fee as distinguished from a tax—application of the rule of uniformity. The constitution of 1870 has in nowise limited the power of the legislature to impose, or to authorize the imposition of, the duty upon natural persons or corporations to procure a license to pursue any calling. In this respect the power of the legislature is the same as it has ever been since the organization of the State government, to require persons engaged in various avocations to procure a license for the purpose, and thus to regulate the exercise of the vocation.
    2. A license fee, when applied to any proper subject, is not a “tax,” in the sense of that clause of the constitution prescribing the rule of uniformity in levying taxes.
    3. Perry license—the rule applied thereto. So, it is competent for the legislature to authorize a municipal corporation to demand a license fee from the keeper of a ferry, for the privilege of carrying on the business of ferrying within its jurisdiction.
    4. Same—as applied to the Wiggins Ferry Company in the exercise of its franchise upon the Mississippi river. The city of East St. Louis, under a general authorization in its charter “to license, tax and regulate ferries,” imposed a license fee, by ordinance, upon the keepers of ferries, for each boat ferrying between that city and the opposite bank of the Mississippi river. The Wiggins Perry Company, which was organized for the purpose of running a ferry between the city of East St. Louis and the opposite bank of the Mississippi river, resisted the collection of this license fee. The original grant of the ferry privilege was to Samuel Wiggins, in 1819, it being provided in the grant that the ferry thereby established should be subject to the same taxes as should be imposed on other ferries in the State, and “under the same regulations and forfeitures.” In 1853 the present corporation-—the Wiggins Perry Company—was organized under an act of the General Assembly, which provided that the new company might purchase, hold, use and enjoy the ferry franchise theretofore granted to Samuel Wiggins. In questioning the power to impose the license fee by the city, the ferry company contended that as it was using the franchise as originally granted to Wiggins, no higher taxes could be imposed upon it than any other ferry in the State was liable to pay, therefore the city could not properly demand this special license fee. But it was held, keeping in view the distinction between a license fee and a tax, the constitutional rule of uniformity in the levy of taxes had no application, and nothing contained in either the original grant of the ferry franchise, or in the charter of 1853, could he construed as an exemption from the exercise of the power to impose the license fee.
    5. Moreover, this ferry company had for years paid a license fee to the county in which it was exercising its franchise, under the general law on that subject, thereby, by its own construction of its charter, conceding the power to require the fee, and the company should be held to that construction, as authorizing the legislature to so understand it, in granting the power to the city.
    6. Besides, in these relations, corporations stand upon precisely the same footing with natural persons, and the legislature may not grant to either special exemptions from the ordinary and usual burdens of government.
    7. Samti¡—the Mississippi river being a navigable stream, as to the relative powers of the State and Federal governments in relation thereto. As affecting the power of the State to authorize a municipal corporation to impose this license fee in respect to a ferry upon the Mississippi river, it was said that river is a navigable stream, and therefore is under the control of the Congress; that Congress has the power to regulate inter-State commerce, and has regulated it by requiring every ferry boat propelled by steam to be inspected, according to an act of Congress, and such regulations as Congress may prescribe must be complied with before a certificate will be granted. But it was held, these inspection laws were in no sense to be regarded as a regulation of commerce, but were purely a police regulation for the safety of persons. The exercise of such a police power by the Federal government in no way impaired the authority of the State to exercise its police power in the granting of ferry licenses. This power in the State is one of the reserved powers, never delegated to the general government.
    8. Nor is the license fee a tonnage tax, or its imposition an attempt to regulate commerce by the State. A tonnage tax does not apply to ferry boats, but to a wholly different class of vessels. The imposition of a license fee is a police regulation, and not a regulation of commerce, in any such sense as that in which the term is used in relation to the power of Congress to regulate commerce between the States.
    Appeal from the City Court of East St. Louis; the Hon. Charles T. Ware, Judge, presiding.
    Mr. H. P. Buxton, for the appellant:
    The power of appellee to make this exaction is claimed under the grant in its charter “to regulate, tax and license ferry boats.” Private Laws of 1869, vol. 1, p. 893.
    1. It can not be maintained under the power to “tax. ” The power to tax toll bridges, ferries, etc., as such, must be exercised, if at all, by general law, uniform as to the class upon which it operates. Const. 1870, art. 9, sec. 1; Transportation Co. v. Wheeling, 99 U. S. 273; Walker v. Springfield, 94 Ill. 374.
    The fourth section of the act of 1819, recited in the preamble to appellant’s charter, provides that the ferry shall be subject to the same taxes as then were or thereafter might be imposed on other ferries, and subject to the same regulations and forfeitures. This limits the power to tax this ferry different from other ferries.
    2. It can not be maintained under the power to “regulate.” It is no regulation to simply demand the payment of money. New York v. Railroad Co. 34 Barb. 41; Mayor v. Railroad Co. 32 N. Y. 261.
    3. It can not be maintained under the power to “license.” Appellant needs no license to do an act, the power to do which has already been perpetually granted by its charter.
    4. This ferry, being over a navigable river, is under the control of Congress, whenever it legislates on the subject. That the power to regulate includes the regulation of navigation, see Cooley v. Board of Wardens, 12 How. 315; Railroad Co. v. Husen, 95 U. S. 469.
    Congress for the first time legislated on this subject in 1871. Rev. Stat. of United States, p. 863, secs. 4426, 4399, 4400.
    5. It is a tonnage tax, and as ‘Such violates the 'Federal constitution. See Steamship v. Port Wardens, 6 Wall. 31; Transportation Co. v. Wheeling, 99 U. S. 283; Sinnot v. Mobile, 22 How. 227; Henderson v. New York, 92 U. S. 259.
    Mr. J. M. Fbeels, and Mr. B. H. Canby, for the appellee:
    The constitution of 1870 is substantially the same as that of 1848, in regard to taxing ferries, etc. Under neither is the power to license prohibited. A license fee is not a tax. Walker v. Springfield, 94 Ill. 373; People v. Thurber, 13 id. 554; City of East St. Louis v. Wehrung, 46 id. 393.

      Alienation of the taxing power must be explicit. It is never presumed. Burr on Taxation, sec. 68; Mobile v. Stein, 54 Ala. 23; Probasco v. Moundsville, 11 W. Va. 501; Hart v. Plum, 14 Cal. 148.
    The power to tax, license and regulate, authorizes a city to adopt any reasonable ordinance for the purpose, either to tax, to license, or regulate. Wiggins v. City of Chicago, 68 Ill. 377; Chicago Packing Co. v. Chicago, 88 id. 221; 1 Dillon on Hun. Corp. sec. 79.
    If appellant were required by the general law to take out a county license, which it is not, it would not exempt it from taking out the city license required. Ex parte Siebenhauer, 14 Neb. 372; Ex parte Robinson, 12 Nev. 269; Ex parte Cohn, 13 id. 426.
    Ferries are the creatures of local legislation, and are subject to the laws of taxation and the police powers and regulations of the States by which they are created, and do not fall within the constitutional provision giving Congress the power to regulate commerce, etc. Gibbons v. Ogden, 9 Wheat. 1; Conway et al. v. Taylor’s Exr. 1 Blackf. 603 ; Fanning v. Gregoire, 9 How. 534; Osborne v. Mobile, 16 Wall. 479.
    Whatever exists within the limits of a State in the form of property, with some exceptions, is subject to its laws. These are subjects of State regulations and State taxation, and there is no Federal power under the constitution which can impair this exercise of State sovereignty. Nathan v. Louisiana, 8 How. 80; Woodruff v. Parkham, 8 Wall. 123; Hinson v. Tott, 8 id. 148; State v. Bell, Phill. (N. C.) L. 84.
    Mr. M. Millard, also for the appellee:
    It is claimed that appellant’s charter is a perpetual license, and contains an express exemption from this form .of taxation. A sufficient answer is, that the legislature had no power to exempt the company from any kind of tax. Jack

      sonville v. McConnell, 12 Ill. 138; O’Kane v. Triel et al. 25 id. 557; Hunsacker et al. v. Wright et al. 30 id. 146; People v. Barger, 62 id. 452.
   Mr. Justice Walker

delivered the opinion of the Court:

The General Assembly, on the 11th day of February, 1853, adopted an act incorporating the Wiggins Ferry Company, at East St. Louis. The charter conferred various, powers, and declared the corporation perpetual. The act authorized the company to exercise all of the powers previously conferred on Samuel Wiggins, with others. A number of persons were named as incorporators, the charter was adopted, and the grant accepted, and the company organized and has ever since exercised its franchises by maintaining and operating ferry boats, as authorized by the charter.

The 54th -section of article 3 of the charter of East St. Louis, approved the 16th of February, 1865, (vol. 1, Special Laws, p. 350,) gives the city power “to license, tax and regulate ferries, ” and under this provision the city, on the 1st of June, 1868, adopted an ordinance, as follows:

“Section 16. Keepers of ferries shall pay $50 license for each boat ferrying between this city and the opposite bank of the river, for one year, or $25 for each boat for six months.”

The company procured a license, and paid therefor from that time until the 1st of May, 1875, after which date it failed to procure a license, but continued to operate its ferry boats as before. On the 6th of August, 1874, the city-passed an ordinance fixing ferry licenses at $150 per annum on each boat. In November, 1877, it passed an ordinance providing that the city should not, for any purpose, require a license of or collect any fee for any business, and repealed all ordinances requiring licenses.

On the 7th day of October, 1878, the city adopted an ordinance similar to the ordinance of the 1st of June, 1868, except it fixed the license fee at $100 for each boat, per annum. The company employed eight boats in ferrying persons and property, under their charter, from the 1st of May, 1875, until this suit was brought, without procuring any license from the city for the purpose. It was stipulated that the company paid the county of St. Clair for a license $300 per annum. It was agreed that the acts of the legislature, and laws, rules and regulations of the United States, and of inspections, the charter and ordinances of the city, or copies thereof, might be used and referred to as part of the record, without proof or authentication; that on the facts and laws the court should determine the right of the city to demand, and the liability of the company to pay, the license fees fixed by the ordinances, and render judgment accordingly, without reference to the pleadings. The court found, and rendered a judgment, in favor of the city for $1600. The record is brought to this court, and various errors are assigned for a reversal.

It is urged that the recovery can not be maintained under the power to tax, under the power to regulate, or under the power to license, because this ferry is over a navigable river, and beyond State control,—that it is in violation of the constitutional rule of uniformity of taxation, and that it is a tonnage tax, and contrary to the Federal constitution. We shall consider these objections, and give our views as concisely as the nature of the questions will permit, for a clear understanding of the case.

It is not denied that the ordinance was properly passed, was in full force, and the amount of the recovery is correct, if the city had the power to pass the ordinance. But the power is denied. It is claimed that the constitution of 1870 prohibits the exercise of such power. The first section of article 9 of that instrument provides for an ad valorwm tax on all property. It also provides that “the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, grocery-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, * * * in such manner as it shall, from time to time, direct, by general law, uniform as to the class upon which it operates. ”

In the cases of The People v. Thurber, 13 Ill. 554, Illinois Mutual Fire Ins. Co. v. City of Peoria, 29 id. 180, Ducat v. Chicago, 48 id. 172, and Walker v. City of Springfield, 94 id. 364, it was held that a per cent on receipts of premiums on insurance policies, required to be paid by insurance agents of foreign companies, was not a tax, but a sum paid for a license to transact the business.

In the case of East St. Louis v. Wehrung, 46 Ill. 392, it was held that a license to sell liquor is not a tax, nor is it governed by the rule of uniformity required in levying taxes, and that the General Assembly might delegate the power to municipal corporations; and that when so delegated, the power must be exercised by general rule in the city, and it had no power to discriminate between different persons in the amount charged. And the same principle was announced in East St. Louis v. Wehrung, unreported, January term, 1868. It was there said, the rule for granting licenses must be uniform in the municipality, and an ordinance to empower the city treasurer to fix the license fee was therefore void.

The,court also held there was a difference between a tax' and a license fee, in Chicago Packing Co. v. Chicago, 88 Ill. 221, and that the constitutional provision in reference to taxation has no application to fees exacted for a license, and in this distinction this court is sustained by the decisions of other courts. See Ex parte Robinson, 12 Nev. 263; Ex parte Cohn, 13 id. 424; Ex parte Siebenhauer, 14 id. 372; Bohler v. Schneider, 49 Ga. 195; Home Ins. Co. v. Augusta, 50 id. 530; City of Sacramento v. Crocker, 16 Cal. 120; Henry v. The State, 26 Ark. 521; Straub v. Gordon, 27 id. 625. This distinction is fully established by authority.

The latter words in the first section, requiring the tax to be by general law, and uniform as to the class upon which it operates, have no operation upon this case, because this, as shown by the cases cited, is not a tax, but a license. The constitution has not prohibited the General Assembly from imposing or authorizing the imposition of the duty to procure a license to pursue any calling, nor has it limited the power or limited its exercise. In this respect the power of the legislature is the same as it has ever been since the organization of the State government, and no one, we presume, will question the legislative power to require persons engaged in various avocations to procure a license for the purpose, and thus regulate the exercise of an avocation. It is a power exercised by all governments, and is one of the essential means of providing for raising revenue for both the State and local governments, and the regulation of business. If the constitutional convention had intended to make so radical a change as to deprive the legislature of this power, or to make a license fee uniform throughout the State on all persons exercising the same calling, without regard to the capital invested, business done or profits realized, that body would have employed very different language from that which we find in that instrument. They were aware that this court had held that a license fee was not a tax, in the constitutional sense, and we have a right to suppose they used the term “tax,” in a sense to exclude a license. That body could not have intended to deprive municipal bodies of this great source of revenue, and to abandon the power, either directly or through municipal bodies, to regulate various callings. If they had intended to prevent all licenses for all purposes, they would have said it, or if it was intended to restrain the exercise of the power to regulate them, it would have been so provided.

It is insisted that the fourth section of the act authorizing Wiggins to establish a ferry (Sess. Laws 1819, p. 105,) provides that the ferry so established should be subject to the same taxes as should be imposed on other ferries in the State, and “under the same regulations and forfeitures.” It is therefore contended, that when the legislature, in 1853, created the present corporation, it, by the first section of the charter, provided the corporation might purchase, hold, use and enjoy the ferry franchise theretofore granted to Samuel Wiggins, and inasmuch as the company is using that franchise, it is entitled to use the same without paying higher taxes than any other ferry in the State. We have seen this license fee is not a tax. In construing all grants by the government, the rule is, that it must be strict against the grantee, and the term “tax,” can not be held to be a license fee. The legislature did not agree to exempt the corporation from taxes and other burthens. By general law all other ferries were required to pay a license fee to the county, of not less than $2 nor more than $100, as should be fixed by the county commissioners. (See. 14 of the chapter entitled “Ferries, ” Bev. Stat. 1845.) This was after-wards increased, by enactment, to not less than $5 and not more than $300, and it is stipulated that this company for years paid annually to St. Clair county the latter sum, thus showing that, by its own construction of its charter, the power to require this fee was conceded, and the ferry company should now be held to that construction. It therefore follows that the legislature had the right to.act on that construction, and to authorize the city to impose the fee, instead of the county. It may be, that by authorizing the city to exercise the power, it operated to deprive the county of the right; but that in nowise affects this question.

The legislature has power to create an artificial person called a corporation, and to endow it with rights and powers resembling those of natural persons, but it has no power to endow such bodies with powers or rights higher or greater than those possessed by natural persons, nor can that body exempt such artificial persons from governmental control, regulation or obedience to the laws of the State, or the governmental burthens imposed on natural persons. When created they became quasi inhabitants of the State, and entitled to precisely the same protection in their rights as natural persons, and they, on every principle of reason and justice, must be subjected to the same governmental control and regulation, and to all of the burthens for the support of government to which natural persons are subjected. They, to the extent of their privileges, become persons and a portion of the governed, and liable* to be governed as are the individuals of the community in which they are located and transact their corporate business. A corporation being the creature of the legislature, has only such rights or franchises as are conferred upon it by its creator, and is capable of exercising none other. A natural person is born with all the rights his intellectual and physical powers are capable of performing. In a state of nature his lack of these capacities are the only limitations on his rights. He, therefore, is endowed by nature with all the rights a corporation possesses, and vastly more. The rights with which nature has endowed him are incontestably as sacred, but no more so, than those conferred on a private corporation.

Government is formed by depriving all persons of a portion of their natural rights. The rights they enjoy under government are not conferred by it, but are only those of which they have not been deprived. It is only by a deprivation of all persons of a portion of their rights, that it is possible to form and maintain government. Without it there could be none but government by each individual, as he might be able to sustain his power. Its organization means a surrender of a portion and the control of his reserved rights, and the power of the government to control all persons in the exercise of these reserved rights must be conceded. Salus populi suprema lex, is a maxim of the law that has peculiar force. In the maintenance of the government and the general welfare, individual rights, whether of natural persons or corporate bodies, must yield to the public good, and the General Assembly is invested with the sole power of determining under what restraints all persons, whether natural or artificial, shall pursue their various avocations, unless restricted by constitutional limitation. That is an essential attribute of government. The regulation of ferries is referable to the police power, which can not be granted away even to corporations. Beer Co. v. Massachusetts, 97 U. S. 25, Patterson v. Kentucky, id. 501, Stone v. Mississippi, 101 U. S. 820, and other cases.

Any man owning or having control of land on opposite banks of a river, has the natural right to procure boats and establish and maintain a ferry, and charge tolls for the services rendered persons in crossing them from one side to the other.; but the General Assembly, in the exercise of its police power, which pervades every department of business, and its regulation and control, as well as the acts of persons, has deprived all persons of that right unless they shall conform to prescribed requirements, and pay the public a prescribed fee for a license to operate the ferry and charge tolls. Now, when an artificial person is empowered to operate a ferry, its right to do so is no greater or more sacred than that of a natural person. They are placed on an equality as to rights and power of control. If the legislature may control or regulate the power of an individual in the exercise of his natural right to establish a ferry, why may it not exercise the same control over the artificial person it has created? Is there a possible reason, founded on justice, why the legislature may not exercise the same power over a creature it has brought into existence, that it may over a person who has been endowed with rights by the- great Euler of the universe ? The legislature, even if it has the power to do so, did not, in terms, exempt this corporation, by its charter, from the same power of control that it may exercise over a natural person, and we will not strain construction and violate the rule that in a grant by the government all doubts must be solved in its favor, and nothing passes except it clearly appears to have been so intended. This rule is as old as the law itself. The charter gave this corporate body the right to establish and maintain a ferry, and that right was no greater than the same right possessed by an individual, and it has never been denied that the legislature might impose a license fee to authorize a natural person to establish and maintain a ferry. The legislature only conferred the same power on the corporate body as that possessed by natural persons, and it undoubtedly has the same right to limit and control its exercise of the right that it may the right of a natural person. It would be unreasonable, unjust, and contrary to the great principle of equality of privileges and burthens, upon which our government is based, to make corporate bodies a privileged class, and exempt them from the common governmental burthens. They, like natural persons, should contribute to the support of the government that affords protection to all of their rights.

Natural persons were born with the right to peddle, auction, follow the business of brokers, hawking, merchants, commission men, showmen, jugglers, inn-keepers, grocery-keepers, liquor dealers, to establish toll bridges, ferries, etc., and most, if not all, of these occupations have been pursued in all ages, in all countries, and in all conditions of men, from the savage to the most civilized. Yet all civilized governments have controlled them, and required persons, for the public good, to pay for and procure a license to follow these various avocations. The power has been exercised in this State from its very organization almost, without question. If this power may be successfully challenged, it would seem to be doubtful what power might not be, with equal reason. The legislature may exercise all ■ power riot prohibited, and unquestionably all legislative powder not limited by the fundamental law. This power was not prohibited, and it was therefore well exercised.

It is said that this is a navigable river, and therefore is under the control of Congress. And it is - further said Congress has the power to regulate inter-State commerce, and has regulated it by requiring every ferry boat propelled by steam to be inspected, according to an act of Congress, and such other regulations as Congress may prescribe shall be complied with before a certificate shall be granted. Nothing, it appears to us, can be plainer than this was intended purely as a police regulation for the safety of persons, and not a measure, in the slightest degree, to regulate commerce. The language can not be tortured into such a purpose. The very language of the section states it is for the better security of life that the regulations shall be complied with before the certificate of the inspector shall be granted. .To hold that the section was intended to regulate commerce, would violate every known rule of construction', and this would seem to be obvious to all persons.

It is also urged that it violates the rule of uniformity. The ordinance applies to all ferries and ferry boats in the city alike, and makes no discrimination. And this answers the rule laid down in City of East St. Louis v. Wehrung, supra. There is no force in this position.

It is again said it is a tonnage tax, and a regulation of commerce. How this can be said to be a tonnage.tax on a ferry boat, or a regulation of commerce, is to us incomprehensible. That tax applies to a wholly different class of vessels, as is shown by the following decisions. In Gibbons v. Ogden, 9 Wheat. 1, Chief Justice Marshall said: “But the inspection laws are said to be regulations of commerce, and are certainly recognized in the constitution as being passed in the exercise of a power remaining with the States. That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, can not be admitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the general government,—all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass.” He again says, in the same case: “No, direct power over these objects is granted to Congress, and consequently they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes,—it must be where powér is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. ”

The case of Conway v. Taylor, 1 Black, 603, recognizes the same doctrine, and the court says : “Lastly, it is urged that the ' Commodore ’ having been enrolled under the laws of the United States, and licensed under those laws for the coasting trade, the decree violates the rights which the enrollment and license gave to the appellants in respect of that trade, by obstructing the free navigation of the Ohio. * * * The language of the constitution, to which this objection refers, is as follows: ‘ The Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.’ (Art. 1, sec. 8, clause 4.) The character and extent of the power thus conferred, and the boundaries which separate that power from

the powers of the States, touching the same subject, came under discussion in this court for the first time in Gibbons v. Ogden, 9 Wheat. 1. ” The court then quotes what was said by Chief Justice Marshall, above cited, and then proceeds: '“The same principle has been repeatedly affirmed in other cases, both in this and the State courts. In Fanning v. Gregoire, 9 How. 534, before referred to, this court held, the argument that the free navigation of the Mississippi, guaranteed by the ordinance of 1787, or any right which may be supposed to arise from the exercise of the commercial power of Congress, does not apply in this ease. Neither of these interferes with the police power of a State in granting ferry licenses. The . counsel for the appellees has invoked the

authority of Cooley v. Board of Wardens of Philadelphia, 12 How. 299, in which a majority of this court held that upon certain subjects affecting commerce, as placed under the guardianship of the constitution of the United States, the States may pass laws which will be operative till Congress shall see fit to annul them. In the view we have taken of this case we have found it unnecessary to consider that subject. * * * That the authority lies within the scope of that immense mass of undelegated powers which are reserved to the States respectively, we think too clear to admit of

doubt. ” To the same effect are Nathan v. Louisiana, 8 How. 73, Woodward v. Parhham, 8 Wall. 123, Hinson v. Lott, id. 148, and Chilvers v. The People, 11 Mich. 43. These authorities most clearly settle this proposition. Nor is the government inspector’s certificate a license that abrogates or supersedes the legislative and municipal requirements. That is but a protection against penalties imposed by the government, still leaving the party liable to penalties ' for a failure to comply with the State and municipal requirements. It is the State laws which confer the power to pursue the business. Block v. Jacksonville, 36 Ill. 301. That case is decisive of that question.

In any view we have been able to consider the case, we must hold that the legislature had the power to require appellant to procure a license to run its ferry, and having the right, its power is undeniable to delegate its exercise to the municipality, precisely as it did to license, tax and regulate billiard tables, ten-pin alleys and ball alleys; to restrain, regulate and prohibit the sale or giving away intoxicating liquors; to direct, license, and control wagons and other vehicles, and to license the various other avocations as authorized by the charter.

The whole record considered, the judgment of the court below must be affirmed.

Judgment affirmed.

Mr. Justice Mulkey :

I concur in the conclusion, but not in all that is said in the foregoing opinion.

Mr. Justice Scholeield : I do not concur in this

opinion.

Mr. Justice Dickey,

dissenting:

I can not concur in this decision. The power to impose this burden upon this ferry company is claimed by the city under a clause in its charter, granted in 1869, wherein power is conferred upon the city, in general terms, “to regulate, tax and license ferry boats.”

I concur in the view that this ordinance is not an exercise of the power to “tax” ferry boats. The ordinance imposing this burden does not profess to impose a tax. A tax on “ferry boats” is a tax on property, and as such, under the constitution of 1818, as well as that of 1870, can only be imposed by valuation. Nor does this ’profess to be a tax upon the business of running or keeping a ferry. The decision in this case does not place the validity of the ordinance upon the power to tax. Obviously the passage of this ordinance was not an exercise of the power to regulate ferry boats. There is not a word in the ordinance relating to the mode of operating the ferry boats in question; nothing relating to the material of which they shall consist, or the mode of their construction; or relating to the character or skill of those actually running these boats; or relating to the care to be exercised in receiving or discharge of passengers or goods, or . the manner of landing; or relating to any matter which can properly be classed under the exercise of police powers or the power to regulate. This ordinance is simply an attempt to exercise the power to “license, ” pure and simple. This power, where there is no attempt to regulate or to tax, can only be exercised in a case where the authority imposing the burden has the rightful power to prohibit the thing done, or, in its discretion, to permit it to be done. This doctrine is taught in The People v. Thurber, 13 Ill. 544; Insurance Co. v. Peoria, 29 id. 180; East St. Louis v. Wehrung, 46 id. 392.; Ducat v. Chicago, 48 id. 172; Walker v. Springfield, 94 id. 372. In The People v. Thurber, it is said of such a burden: “This is not a tax upon property, but is a burden * * * for the right of exercising a franchise or privilege which the legislature would have the right to withhold or inhibit altogether. ” This language is quoted with approbation in Walker v. Springfield, decided in 1880. The word “tax, ” as used in the constitution of Michigan, received the same interpretation, and was held not to embrace a license fee. (Chilvers v. The People, 11 Mich. 43.) It is there declared of a license fee, that “it is not a tax, ” in the sense of that word in their constitution and statutes, and that “it is a price paid for a franchise * * * vested in the individual. ”

The mere power to license and exact a license fee as-a source of revenue, is, and from its very nature should always be, confined to a permission granted to exercise some privilege or franchise, or to do some thing which may not lawfully be done without permission, or which the power exacting the same might lawfully prohibit altogether. Bemember, as was said in People v. Thurber, supra, a license fee proper,' exacted merely for the purposes of revenue, “is a burden” imposed as payment “for the right of exercising a franchise or privilege which the legislature would have the right to withhold or inhibit altogether; ” and that, as was said in the Michigan ease, “it is a price paid for a franchise.” The power to license, strictly and' properly speaking, is simply a power to sell a privilege, and hence is confined to the granting of a privilege to do a thing in a case where the privilege might be withheld, or the doing of the thing might lawfully be prohibited entirely. The ordinance assumes the right of the city in this case to prohibit.

There is a class of cases where the power is granted to require the taking out of licenses before doing certain things, and in which the right to do the thing in question can not lawfully be prohibited altogether. This class of license cases falls properly within the exercise of the power to regulate, where that power is given. Thus, where a municipal corporation has power to regulate the sale of intoxicating liquors, and to license tippling houses, hut has not the power to prohibit altogether, it may be required that a license shall be obtained, in order that only discreet persons may be allowed to make such sales, and that bond and security may be required for good behavior in so doing. Hack-drivers in a city may be required, for the better protection of the public, to take out licenses, and wear a number or a badge for identification,. and all this under the exercise of police or regulative powers. In this case, as we have already seen, there is no pretense of the exercise of the regulative or police powers,— it is simply the exacting of a license fee, for the purposes of revenue only.

This brings us to the question whether the city of East St. Louis was clothed with power to exact of this ferry company this license fee, for the mere purpose of revenue. Had the city power to prohibit altogether in this case ? If it has such power, it is derived from the State of Hlinois, contained in the charter granted in 1869. Unless the State of Illinois had at that time rightful power to exact such a license fee, it is plain the city can have no such power,—the stream can not rise higher than its source.

In 1819, on March 2d, an act of the legislature was passed granting to Samuel Wiggins, his heirs and assigns, authority to establish and maintain the ferry now owned by this ferry company, and to charge certain rates of ferriage. The second section of the act forbid the establishment of any other ferry within a mile of this ferry. The fourth section declared, that “the ferry hereby established shall be subject to. the same taxes as are now or hereafter may be imposed upon other ferries within this State, and under the same regulations and penalties; and if the provisions of the second section of this act should be made to appear to the General Assembly to be injurious to the public good, that then, and' in such case, the said second section may be repealed.” A sand bar having formed in front of the ferry landing at which Wiggins had established his ferry under the act of 1819, another act was passed on February 6, 1821, reciting the former grant to Wiggins, and granting to him the right to remove his ferry to another landing, “under the same privileges as prescribed in the act of March 2, 1819.” This was done, and the ferry maintained there by Wiggins, his heirs and assigns, until in 1853. In that year (1853) the Wiggins Ferry Company (the appellant in this case) was chartered, and authorized to purchase the ferry franchise granted to Wiggins, his heirs and assigns, by the acts of 1819 and 1821, and the ferry property thereto pertaining, and to exercise all the powers and enjoy all the privileges which had been so granted to Wiggins and his representatives. In that charter it was declared, that “nothing in this act shall be construed to create any private right, so as to interfere * * * with the right of the legislature at any time hereafter to create municipal corporations within the limits specified, and to confer upon such corporations all' such police poioers * * * as may be usually and properly conferred upon a city corporation under the constitution of Illinois." (Private Laws of 1853, p. 197.) Under this act the purchase was made, and when the charter of East St. Louis was granted, this ferry company was the owner of the ferry franchise in question. The burden here imposed does not seem to me to be in any sense the exercise of a police power.

The nature and character of that franchise was considered by this court in 1845, in the case of Mills et al. v. County of St. Clair, 2 Gilm. 197. It was there declared, that “the grant to Wiggins was essentially a contract between him and the State. By its terms, on his part, he is bound to run the ferry, to afford at all times a safe and speedy passage to travelers and their property across the river, to keep for this purpose a supply of boats and hands, and to propel such boats in the manner prescribed by'the act; and on its part, the State contracts that he may run the ferry. * * * The obligations imposed by the act * * * must, of necessity, be mutual. ” In an earlier part of that opinion it is said, in relation to this grant: “When a grant has once been made by legislative authority, * * * it can not be taken back * * * until the public interests and welfare shall demand its resumption, and provision shall have been made for just compensation to the owner, in the manner required by law. ”

Thus it is seen,.that at the time when the charter of appellee granted power to “license ferry boats,” this ferry company held, by contract from the State, the right to “run this ferry, ”—a right which could not be taken back by the mere fiat of the legislature,—and therefore the legislature had then no power to withhold from] this company such right, nor power to inhibit this company from running this ferry, and had not the power, by statute, to exact of this company a price to be paid for the privilege of running the ferry,—a privilege it already held by grant, and had paid for. Having no such power, the legislature could not grant such a power to the city. The use, then, of the general term, “to license ferry boats, ” made in the charter, should be held to grant only the power to exact a license 'fee, for revenue, from persons using ferry boats, who are not already clothed with the right to run without such license. Of course, a corporation has no higher rights than those of an individual under the same conditions. It has, however, the same rights. Had Samuel Wiggins continued to own this ferry franchise, could he have been lawfully subjected to this demand? I think not. This corporation stands in his shoes, and has the same rights in this regard.

This ordinance, in so far as'4t affects appellant, is merely an attempt to exact a license fee, purely for the purposes of revenue, as a price for a privilege which appellant already holds under purchase from Wiggins and others, who held the same by an irrevocable grant from the State, which the State itself could not, by mere legislative act, take away. It is a demand upon this company that it shall purchase from the city a privilege which it already owns by a title beyond the power even of the State to destroy or take away, save upon just compensation, under condemnation proceedings.

The ordinance, in so far as concerns this company, is, I think, incompatible with the statutes of the State granting this franchise to this company, and is therefore, in my judgment, inoperative upon this ferry company.


author: Mr. Justice Dickey

text:
    Nancy A. Sloan v. William Sloan.

      Filed at Ottawa March 28, 1882.

    Bill of review-—limitation as to time of filing. It is a general rule that a bill of review to impeach a decree for fraud, will not be entertained unless brought within the time allowed by statute for the suing out of a writ of error, or unless some very cogent and convincing reason is shown in excuse of the delay.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. George W. Smith, for the plaintiff in error:
    Courts of chancery will ordinarily apply the same limitation of time to bills of review that the statute applies to writs of error. Lyons v. Robbins, 46 Ill. 276.
    This is the extent of the rule, and it is made for cases in which error upon the face of the record is alleged,—not for cases of fraud or concealment. There is no warrant for the broad assertion that a bill of review will not lie after the time when a writ of error could be brought, and the authorities do not sustain that position.
    Mr. Egbert A. Child, also for the plaintiff in error:
    A bill of review may be brought within twenty years, (Adams’ Equity, 417,) and it will lie—
    1. To impeach a decree for fraud. Story’s Equity Pl. sec. 426; Adams’ Equity, 419; Cooper’s Equity Pl. 97; Guerry v. Durham, 11 Ga. 9; De Lains v. Meek, 2 Greene, (Iowa,) 55; Hatch v. Fenby, 4 Md. Ch. 190.
    2. On the occurrence of, or discovery of, new matter. O'Hara v. Shepherd, 3 Md. Ch. 306; Ridgeway v. Lovam,
      3 id. 303; Cochran v. Rison, 20 Ala. 463; Standish v. Rodley, 2 Atk. 178; Judson v. Shepherd et al: 75 Ill. 255; Cooper’s Equity Pl. 91; Story’s Equity Pl. 412.
    3. It may be filed with or without leave of the court, and may be brought for fraud in fact or fraud in law. Allen et al. v. Hawley et al. 66 Ill. 164; Griggs et al. v. Gear, 3 Gilm. 2; Turner v. Berry, 3 id. 541.
    Equity will relieve against every species of fraud. Lewis et al. v. Lanphere, 79 Ill. 187.
    The vacating and opening up a decree is discretionary with the court, where the court had jurisdiction of the parties to the original suit; but where proceedings have been taken without jurisdiction, it is the duty of the court to correct the record upon the first notice of the fact. Evans v. Clement, 14 Ill. 206; Crouch v. Crouch, 30 Wis. 667; Boyd’s Appeal, 38 Pa. St 241; People v. Dowell, 25 Mich. 247.
    As to the power of courts to set aside decrees of divorce for fraud or imposition, even - after a subsequent marriage: True v. True, 6 Minn. 458; Jackson v. Jackson, 1 Johns. 424; Pawling v. Bird’s Exrs. 13 id. 192; Borden v. Fitch, 15 id. 121; McLaren’s Exr. v. McLaren, 6 Wend. 567; Adams v. Adams, 51 N. H. 388; Graves v. Graves, 36 Iowa, 310; Crouch v. Crouch, 30 Wis. 667; Edson v. Edson, 108 Mass. 590.
    Mr. Ira 0. Wilkinson, for the defendant in error:
    A bill of review will not lie to set aside a decree entered by consent of parties, unless the consent was obtained by fraud or mistake. Adams’ Equity, 400; 2 Daniell’s Chancery Pr. 1575; Flagler v. Crow, 40 Ill. 414; McDaniel v. James, 23 id. 407; Armstrong v. Cooper, 11 id. 540.
    Whether filed for error of law, or for newly discovered matter, it should be filed as soon as it reasonably may be. Story’s Equity Pl. sec. 423; Adams’ Equity, 790, and notes; 2 Daniell’s Chancery Pr. 1584-5.

      • A bill of review will not lie after the time for bringing a writ of error. Story’s Equity Pl. sec. 410, and notes; Puterbaugh’s Chancery Pl. 259; 2 Daniell’s Chancery Pr. 1580, and note; Lyons v. Robbins, 46 Ill. 276; Sale v. Pike, 54 id. 292; Boyd v. Vandercamp, 1 Barb. Ch. 273; Jenkins v. Prewitt, 5 Blackf. 7; same ease, 6 id. 237.
   Mr. Justice Dickey

delivered the opinion of the Court:

The case shown upon this record is that of a bill of review, or a bill in the nature of a bill of review, brought by Nancy A. Sloan, of the State of Ohio, against William A. Sloan, of the State of Kansas. The bill was filed in the Superior Court of Cook county, August 25, 1879, -seeking to annul and set aside, for fraud, a decree of divorce rendered in that court at its August term, 1872, granting to her a divorce from defendant. This bill seeking to set aside the former decree was heard at the November term, 1880, and, on hearing, was dismissed. On error to the Appellate Court for the First District the decree dismissing the bill of review was affirmed. The complainant brings the case here on error, for review.

The allegations of the bill upon which it is sought to set aside the decree of 1872 are, that complainant had no knowledge of the proceeding whatever, and never, in any manner, gave any authority to the lawyer who prosecuted in her name the suit for a divorce, and in her name procured the decree. The excuse alleged for the delay in bringing this suit is, that complainant had no knowledge of the fact that any divorce proceedings were ever had in this regard, until about one month before this bill was filed. All these allegations are denied in the answer, and it is also shown that some time in 1872 defendant married another woman in Iowa, and that they have two children, the fruits of the latter marriage.

It is a general rule that a bill of review will not be entertained, unless brought within the time allowed by statute for the suing out of a writ of error. In this case about seven years intervened after the entering of the decree of divorce before the filing of this bill. In the absence of some cogent reason to the contrary, this proceeding must be regarded as barred by mere lapse of time. The allegation of the utter ignorance of the proceedings can not in such case prevail, unless clearly and satisfactorily proven. Complainant herself swears very positively that she had no such knowledge and no suspicion of such proceedings, and many incidents of her conduct, proven as part of the current of affairs, seem to corroborate her statement. On the contrary, several witnesses swear positively that before the divorce proceedings she had presented to her, for her signature, a paper which she was told was a paper which, if signed by her, would bring a divorce from her husband, and that upon such representation she did sign the paper. Several witnesses also swear that another paper was received by her father-in-law in Ohio, (where she lived,) said to be a power of attorney from Chicago, sent to Ohio for her signature; that it was represented to the complainant that the first paper was not sufficient, because not executed before a notary public, and that complainant consented to sign and acknowledge the second paper. John Sloan, the father of the defendant, swears that complainant went with him before a notary public and there did sign the second paper, and that he and the notary both signed the same as witnesses. The notary public swears that complainant did sign the paper in his presence, and that he made known to her its contents, and that he, and Sloan, the father-in-law of complainant, signed the same as witnesses, and that she knew when she signed it that it authorized a lawyer named, in Chicago, to take the necessary steps to procure for her a divorce, Sloan, the father of the defendant, swears that after the decree of divorce was rendered, a copy of the same was sent to him in Ohio, and that he produced it to complainant, and told her the decree for the divorce had come, and she thereupon requested him to keep it, and not to let the mother of complainant know anything upon the subject.

While there are many things in the record which compel us to doubt the truth of some of these statements, still the cause for disregarding the general rule is not so clearly established by proof as to require or authorize the court to depart therefrom in this case. It may be that the real truth in this case is with the complainant, and if so, a most wicked and flagrant wrong has been done to her.. Such is not shown to be so, so clearly as to demand that the general rule against entertaining bills of review after the lapse of five years, should be disregarded. It is a wholesome rule, although in some cases it may result unfavorably to the real justice between the parties.

Under these views the judgment of the Appellate Court is affirmed.

Judgment affirmed,.