text:
    Lyman M. Paine v. John Root.

      Filed at Ottawa May 12, 1887.

    1. Wbit of possession—in favor of a purchaser under decree. To authorize the award of a writ of possession in favor of a purchaser under a decree, against one in possession of the land, it must be clearly shown that the former was either a party to the suit in which the writ is asked, or that he purchased pendente lite.

    2. Lis pendens—as against a purchaser under execution. The pend-ency of a bill by a member of a corporation against the corporation and its board of directors, to compel the latter to discharge their duties, will not affect the right of a judgment creditor of the corporation to collect Ms judgment by sale of the lands of the corporation; and when a sale is made of its land under such a judgment, pending such bill, neither the corporation, nor one claiming under it, though through a sale under a decree rendered in the chancery suit, can invoke the doctrine of lis pendens to affect the purchaser-under the judgment at law. That doctrine has no application to such a case.
    3. In such case, the fact that there may be other and superior liens upon the property in favor of other parties, is of no concern of the corporation or its members.
    Appeal from the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Henry county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. J. T. Kenworthy, for the appellant:
    He who purchases the subject matter in litigation from a party, pending the suit, pro hcec vice becomes a party to the suit, and will be bound by a decree therein. Parkinson v. Trousdale, 3 Scam. 367; Gilman v. Hamilton, 16 Ill. 225; Hurd v. Case, 32 id. 45; Jackson v. Warren, id. 331; Alwood v. Mansfield, 59 id. 496; McCauley v. Rogers, 104 id. 578; Martin v. Dryden, 1 Gilm. 187.
    A party who enters under a defendant, after suit brought, takes subject to whatever judgment may be rendered therein, and if evicted, can not complain that he was not made a. party to such suit. This is just what the appellant did in this case, and this is just what he is complaining about in this, case,—nothing less, nothing more. Oetgen v. Ross, 47 Ill. 142; Krebaum v. Cordell, 63 id. 23; Davis v. Insurance Co. 84 id. 508; Gould v. Hendrickson, 96 id. 599; Yates v Smith, 11 Bradw. 459.
    Mr. C. Dunham, for the appellee:
    Appellee was neither a party to the decree nor a purchaser pendente lite.

    There being no specific claim made to this land, the purchaser can not be chargeable with notice Us pendens. Sapp v. Wightman, 103 Ill. 150; Griffith v. Griffith, 9 Paige, 316;
      Leitch v. Wells, 48 N. Y. 585; Stone v. Connolly, 1 Metc. 652; Wade on Notice, sec. 351, et seq.

    Mr. H. Bigelow, also for the appellee:
    The circuit court had no power or jurisdiction to award the writ of assistance in this case. Harding v. LeMoyne, 114 Ill. 65 ; Jones on Mortgages, sec. 1665.
    The power of a court of chancery to give possession by the summary process of a writ of assistance, is confined, even in foreclosure cases, to actual parties to the suit, or to those who enter under such parties, pending the suit. Brush v. Fowler, 36 Ill. 53; Gilcreest v. Magill, 37 id. 300; Boynton v. Jackway, 10 Paige, 307; 1 Barbour’s Ch. Pr. 532.
    The grantee of a purchaser at a foreclosure sale is not entitled to a writ of assistance as a matter of right. There is no settled practice of the court of chancery allowing the writ, and it should not be allowed where there is a strong probability that injustice will be done. Van Hook v. Throckmorton, 8 Paige, 33.
    If there ever was a case where a strong probability existed that injustice would be done by granting the writ of assistance, this is one.
    The writ of assistance is not a writ of right, to be granted as a matter of course, but rests largely in the discretion of the court; and no injustice is done if it is denied, since the courts of law are open to give possession, in proper eases. Bruce v. Roney, 18 Ill. 67.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It appears from the record before us, that some time before 1853, there was formed in Henry county, this State, a voluntary association for the promotion of religious, social and business objects, known as the “Bishop Hill Society. ” By an act of the legislature, approved January 17, 1853, the society was incorporated under the name of the “Bishop Hill Colony, ” the corporate company succeeding to all the society’s property rights. The company seems to have been managed very successfully for a number of years, during which time it became the owner of a vast amount of property,—particularly real estate,—but in doing so it had incurred a mortgage debt of some $50,000, together with other indebtedness. Factions and dissentions, however, finally sprung up in the society, which led to a division of the property of the company among the members, except what was supposed to be sufficient to pay off and discharge the company’s indebtedness, which was left in the hands of the trustees of the company for that purpose. After this, the members of the colony held their allotments in severalty, subject to whatever conditions were imposed by the terms of the allotment.

The foregoing is but an imperfect and much condensed account of the beginning, progress and practical dissolution of the society out of whose affairs the present litigation has its origin. But even this imperfect outline has no practical bearing upon the real question to be determined.

The trustees of the colony having failed to apply the property left in their hands to the4 payment of the company’s debts, as they should have done, and otherwise neglected the performance of their trust generally, certain members of the colony, suing on their own behalf, as well as that of other members, on July 27, 1868, filed a bill in the Henry county circuit court, against the Bishop Hill Colony, its trustees, and certain other parties, charging the trustees with various breaches of duty, and praying that they be required to account for all money and property that had come into their hands; that certain mortgages and judgments be canceled and set ■aside as fraudulent; that the affairs of the company be closed up and the corporation dissolved. Numerous orders and so-called decrees were, from time to time, entered in the cause, even a cursory examination of which, we think, fully justifies the claim of appellant that it is “a case sui generis.” Under the compendious title of The Bishop Hill Colony Case, after the manner of Dicken’s celebrated case of Jarndyce and Jarndyce, it has been “dragging its slow length along” for a period of over eighteen years, and, so far as we are able to perceive, those who have been chiefly benefited by it are the immediate parties to the suit, their counsel and the officers of the court,—notably the master in chancery, who has received some $9000 out of the fund, as fees in the case.

Without going into further detail upon this subject, and coming at once to the facts directly affecting the present inquiry, it appears that the appellant, Lyman M. Paine, on the 25th of September, 1882, filed a petition in the said Bishop Hill Colony case, setting forth, that by virtue of “decrees” entered in said cause April 25 and July 28, 1879, and prior thereto, William H. Gest, special master, sold to Charles C. Bonney, for $2868.50, certain lands, (describing them;) that the master, on April 14,1881, executed a deed to Bonney for the purchased premises, and that the latter conveyed the same to petitioner, July 28, 1881; that appellee, John Boot, being in possession of the premises, after demand, refuses to surrender the possession thereof to petitioner. After setting up various matters and things not necessary to repeat here, the petition concluded with a prayer for a writ of assistance. On the hearing, the circuit court made an order awarding the writ as prayed. The Appellate Court, on Boot’s appeal, reversed this order, and remanded the cause, with directions to the circuit court to dismiss the petition and enter a judgment against the petitioner, for costs. The latter thereupon appealed to this court.

We fully concur in the conclusion reached by the Appellate Court. While the lands in question at one time belonged to the Bishop Hill Colony, yet they are not set forth or in any manner specifically described in any of the pleadings in the Bishop Hill Colony ease, nor is any relief asked in respect to them. To authorize' the issuance of a writ against Boot, it must have been clearly proved that he was either a party to the suit in which it was issued, or that he purchased lis pendens. Appellant seems to maintain that the writ was warranted on both these grounds, but the facts and circumstances relied on for that purpose, in our judgment fall far short of supporting either contention. As respects the first, he is not named in the bill, either as complainant or defendant, nor was he served with process of any kind, in the case. He neither entered his appearance nor filed an answer or interpleader in the cause. He in no sense asked any relief of the court or any of the parties to the proceeding, nor was any asked as against him. The truth is, there is not the shadow of ground for the claim that he was a party to the suit; hence it would be an idle and useless consumption of time to notice in detail the trifling circumstances which counsel has pointed out as sustaining such a claim. The conclusion sought to-be drawn from them finds no sanction in law, and just as little in reason or logic.

It remains to consider the facts relied on to show that the purchase was made lis pendens. The land in dispute is a. part of the south-east quarter of section 22, town 14 north, range 3, east of the fourth principal meridian. The quarter section had been divided into six lots, numbered from 1 to 6, inclusive, all of which is claimed by Boot adversely to the company and all persons claiming through the company, the petitioner included. The petitioner prefers no claim to lots 1, 5 or 6, except so far as they are affected by an alleged undivided interest of acres, extending to the entire quarter section. The real claim, therefore, of the petitioner, leaving out of view this fractional undivided interest, is to lots 2, 3 and 4. As to lot 2, that belonged to the company until the 20th day of January, 1875, when it was sold to Boot by the sheriff of Henry county, under a judgment and execution in favor of one Sweet, against the company, for the sum of $595, and for which Eoot, on the 15th of May, 1876, received at sheriff’s deed.

It is very clear the company itself could not defeat Booths title to this piece of land by invoking the doctrine of Us pen-dens, and it is not perceived that a subsequent purchaser of the property, though through the instrumentality of legal proceedings, would stand upon any better footing than the company. The doctrine of Us pendens clearly has no application to such a case. The bringing of a suit by a member of a corporation, against the company and its board of directors to> compel the latter to discharge their duties, does not at all affect the right of a judgment creditor of the company to have execution of his. judgment out of the property of the company. That was just what was done here. Even if there were superior liens on the property sold, in favor of other parties, that would be no concern of the company or its incorporators. As to lots 3 and 4, the company conveyed them, for a valuable consideration, to appellee’s grantors, long before the commencement of the colony suit, and hence there is not the slightest pretence for claiming that they were bought Us pendens.

Viewed from a legal aspect, or, indeed, any other aspect, we have seldom, if ever, seen a case so entirely destitute of merit. That the petitioner was not entitled to a writ of assistance, under the facts in this case, will fully appear from the general principles announced in the following authorities : Brush v. Fowler, 36 Ill. 53; Gilcreest v. Magill, 37 id. 300; Bruce v. Roney, 18 id. 67; 1 Barbour’s Ch. Pr. 532.

The judgment of the Appellate Court was clearly right, and it will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. .Justice Sheldon

license: Public Domain

text:
    George J. Williams v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1887.

      1. Physicians—regulating the practice of medicine, as an exercise of the police power—constitutionality of the act of 1877. It is a valid exercise of the police power of the State to prescribe regulations for the purpose of securing the admission of qualified persons to professions and callings demanding special skill, and the exercise of this power is nowhere more proper and necessary than in regard to the practice of medicine.
    2. The act of 1877, entitled “An act to regulate the practice of medicine in the State of Illinois, ” is not obnoxious to section 22 of article 4 of the constitution, which provides that “the General Assembly shall not pass local or special laws granting to any corporation, association or individual, any special or exclusive privilege, immunity or franchise whatever. ”
    3. The proviso in the thirteenth section of the act, that the provisions of that act shall not apply to those that have practiced medicine within this State for ten years, does not confer upon ten years practitioners any special privilege, immunity or franchise. It does not confer on them anything, but simply leaves them as they were before its passage.
    4. The act is not open to the objection that it subjects to regulation a class, to-wit, graduates with diplomas and applicants for certificates of examination, leaving ten years practitioners subject to no rtegulation. The first section requires that “every person practicing medicine” shall possess the qualifications required by the act, and the proviso is to be regarded as but prescribing a qualification—that ten years, practice in the State shall constitute a qualification.
    5. The provisions of the act which give the examining board power to refuse certificates to persons guilty of unprofessional or dishonorable conduct, and to revoke certificates for like cause, is but a regulation pertaining to qualification for admission to practice. It has no application to ten years practitioners, as they are not admitted to practice upon the certificates of the board. They are by the act, licensed to practice.
    6. Same—hwrden of proof in prosecution for practicing without license. In a prosecution under the act of 1877, regulating the practice of medicine, for practicing without having the proper evidences .of qualification, the burden of proof is not on the people to show that the defendant has not been licensed to practice, by diploma or certificate of the board of examiners, or by ten years, previous practice in this State. The defendant may show such facts in defence if they exist.

      7. Statute—invalidity of one provision, whether affecting others. The propriety of the provision in the act of 1877, regulating the practice of medicine, in making certificates of qualification, subject to revocation by the board for unprofessional or dishonorable conduct of the holders thereof, is not involved in this case, and no opinion is given thereon. But if this provision is unconstitutional, the court would not hold the entire act void for that reason.
    8. Pleading and evidence—of a negative averment—when taken as true. Where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. This rule applies in civil and criminal prosecution for a penalty for doing an act without a license.
    Writ of Error to the Criminal Court of Cook county; the Hon. John Gf. Rogers, Judge, presiding.
    Messrs. Barnum, Rubens & Ames, for the plaintiff in error:
    The act to regulate the practice of medicine is unconstitutional, being contrary to article 4, section 22, of the State constitution. While professing, by its title, to be general legislation, it arbitrarily singles out from the class known as “practitioners, ” certain favored individuals, and confers upon them special and exclusive privileges, etc., denied to all other practitioners.
    To be constitutional, this act should be what it purports to be—an act to regulate the practice of medicine. The parties to be regulated must be the practitioners of medicine, and all of them. To be a general law, “it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides. ” People v. Wright, 70 Ill. 398; Cooley’s Const. Lim. 490, 491; People v. Cooper, 83 Ill. 585; Guild v. Chicago, 82 id. 472; People v. Meech, 101 id. 204; Holmes v. Smythe, 100 id. 423; Devine v. Commissioners, 84 id. 591.
    It can not be said, if the proviso is unconstitutional the remainder of the act is valid. People v. Cooper, 83 Ill. 595; Warren v. Charleston, 2 Gray, 84; State v. Sinks, 42 Ohio St. 350; Jones v. Rollins, 8 Gray, 339.

      The act is repugnant to article 2, sections 2 and 5, and also to articles 3 and 6, of the constitution.
    Natural rights are antecedent to, and exist independently of, the constitution. (Munn v. People, 69 Ill. 94.) The absolute rights include-the right to acquire and enjoy property'. (1 Kent’s Com. 587.) In the pursuit of happiness all avocations and all positions are alike open to every one. (Cummings v. Missouri, 4 Wall. 362.) Property includes estates which one may acquire in professions.' Ibid. See, also', Webb v. Baird, 6 Ind. 17; Hall v. Washington Co. 2 Green, 473; Carpenter v. Dane, 9 Wis. 277; Ex parte Garland, 4 Wall. 370.
    Our client was not bound to submit his common law right to practice, to the jurisdiction of a tribunal armed with such extraordinary powers to determine what is unprofessional or dishonorable conduct. A person can not be deprived of his right to practice, without a trial by jury.
    'Mr. John M. Hamilton, for the defendants in error:
    The act in question is not unconstitutional.- The law is a very proper and wise police regulation, and is within the domain of legislation. People v. Dental Examiners, 110 Ill. 184; 4 Blackstone’s Com. 162; Cooley’s Const. Lim. 718; Commonwealth v. Alger, 7 Cush. 84; Thorpe v. Railroad Co. 27 Vt. 149; Bradwell v. State, 16 Wall. 130.
    As to the police power of the State, see Dunne v. People, 94 Ill. 141; Cole v. Hall, 103 id. 30; Brown v. Chicago, 110 id. 195; Harmon v. Chicago, id. 400; Hawthorne v. People, 109 id. 302; Chicago v. Honey, 10 Bradw. 538.
    The constitutionality ‘and validity of similar statutes have been sustained. State v. Examining Board, 32 Minn. 325; West Virginia v. Dent, 25 W. Va. 1; Ex parte Spinney, 10 Nev. 325; West v. Cluther, 37 Ohio St. 347; Sheldon v. Clarke, 1 Johns. 513; Zimmerman v. Morrison, 14 id. 369; Thompson v. Staats, 15 Wend. 395; Hewitt v. Charier, 16 Pick. 356; State v. Goldman, 44 Texas, 104; Spaulding v Inhabitants of

      Alford, 1 Peck. 33; Wright v. Lanctin, 16 Pick. 288; Bibber v. Simpson, 59 Maine, 181; Antle v. State, 6 Texas, 202; State v. Hale, 15 Mo. 407.
    When the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party, Such is the -case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor, as, for selling liquor, exercising a trade or profession, and the like. People v. Nedrow, 16 Bradw. 196; 1 Greenleaf on Evidence, sec. 79, p. 92; Railroad Co. v. Bacon, 30 Ill. 353; Harbaugh v. Town of Monmouth, 74 id. 367; Nœcker v. People, 91 id. 468 ; Town of Flora v. Lee, 5 Bradw. 729.
   Mr. .Justice Sheldon

delivered the opinion of the Court:

In this case, the plaintiff in error, George J. Williams, was indicted, tried for and convicted of the offence of violating the provisions of the act in force July 1, 1877, (Laws 1877, p. 154; Starr & Curtis, 1602,) being “An act to regulate the practice of medicine in the State of Illinois, ” by practicing medicine without having any of the .qualifications required by that act. A fine of $200' was assessed by the court.

It is insisted that the act under which the conviction was had is unconstitutional. We do not understand the. act to be challenged, in this respect, in the regard of its feature of prescribing qualifications for the practice of medicine. It is the common exercise of legislative power to prescribe regulations for securing the admission of qualified persons to professions and callings demanding special skill; and nowhere is this undoubtedly valid exercise of the police power of the State more wise and salutary, and more imperiously called for, than in the case of the practice of medicine. It concerns the preservation of- the health and the lives of the people.

But the constitutional objection which is urged against the act is, that it is special legislation, contrary to article 4, section 22, of the State constitution, that “the General Assembly shall riot pass local or special laws granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” The special feature which is claimed, is the proviso to the act, which is: “Provided, that the provisions of this act shall not apply to those that have been practicing medicine ten years within this State. ” This proviso does not confer upon the ten years' practitioners any special privilege, immunity or franchise. It does not confer upon them anything—it leaves them as they are. But it is said the act is one to regulate the practice of medicine, and that it subjects to regulation only a class, to-wit, graduates with diplomas, and applicants for a certificate of examination, while the' ten years practitioners are not subjected to any regulation at all, by anything in the act. It becomes proper to look and see what the provisions of the act are. The first clause of the act is as follows: “Every person practicing medicine, in any of its departments, shall possess the qualifications required by this act. ” All the other provisions of the act, as we view them, only respect such qualifications, with the exception of one section, which requires any itinerant vender of any drug or nostrum ointment to pay a license of $100 a month.

It was in the province of the legislature to prescribe what should be the qualifications for the practice of medicine, and what the mode in which they should be determined. The act provides, as to a graduate in medicine with a diploma, that he may practice upon his diploma, it being verified as pointed out by the act. In regard to others, it is provided they shall undergo an examination before the State board oí board of examiners, and may practice upon the certificate of the board. As respects the proviso, we regard it in the light of but prescribing a qualification,—that ten years practice within the State should constitute a qualification for practicing medicine.

It is virtually conceded, in the argument of counsel for plaintiff in error, that the General Assembly might make the qualification of ten years, practice prior to the act, equal to the qualification of a diploma or of a certificate of examination, and that the proviso might have been unobjectionable had it been limited to the provisions of the act in respect of qualification; that its vice is in saying that “the provisions of this act, ”—that is, that not its provisions in respect of qualifications, but each and every of its provisions,—should not apply to the ten years practitioners. And it is said that there is one section which regulates practitioners in respect to conduct, giving the power to exclude them from practice for unprofessional or dishonorable conduct, and that this is a provision from which the ten years practitioners are, by the proviso, exempted. This section referred to is, that the board may refuse certificates to individuals guilty of unprofessional or dishonorable conduct, or may revoke certificates for like causes.

As respects the objection of this provision unjustly discriminating between classes of practitioners, we regard it as but a regulation pertaining to qualifications for admission to practice. It certainly is such as regards applicants for admission. And as respects those who had been admitted to practice, on the board’s certificate, the provision essentially is, that where there has been abuse of the license granted, by having been guilty of unprofessional and dishonorable conduct, the licensing body may revoke the license which they had granted. All is really but in regulation of admission to practice upon the certificate of the board. It has no application to ten years practitioners, as they are not admitted to practice upon the board’s certificate, but they are, by the act itself, licensed to practice.

The propriety of the provision, as regards the holders of certificates, in making their certificates subject to revocation by the board for unprofessional or dishonorable conduct, we do not regard as involved in this ease, or that we are called upon to express any opinion thereon. Plaintiff in error has no grievance in this respect. He has not had any certificate revoked, has never received a certificate, or been licensed to practice; and if, in this particular, the act could be regarded as unconstitutional, we would not hold the entire act for that reason to be void, or to be so in so far as it bears upon the plaintiff in error. See State of West Virginia v. Dent, 25 W. Va. 1, West v. Cutter, 37 Ohio St. 347, and State of Minnesota ex rel. v. State Board of Medical Examiners, 34 Minn. 387, where the validity of similar enactments was sustained.

It is assigned for error that there is no evidence in the record tending to show that plaintiff in error had not complied with the requirements of this law, and had not practiced medicine ten years previous to 187^, and in refusing to instruct the jury that the.burden was on the prosecution to make such proof. The case comes within the general rule upon this subject, which is laid down by Greenleaf on Evidence, (vol. 1, see. 79,) as follows: “But where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the ease in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor, as, for selling liquors, exercising a trade or profession, and the like. ” And see Great Western Railroad Co. v. Bacon, 30 Ill. 347; Harbaugh v. City of Monmouth, 74 id. 367.

The judgment will be ,affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Herman Weber et al. v. Amalia Christen.

      Filed at Ottawa May 12, 1887

    1. Delivery of deeds—how far essential—of manner of delivery, and <evidence thereof. A delivery is in all cases essential to the giving effect to a deed.
    2. The ordinary and simplest mode of delivery of a deed is the actual tradition or manual transfer of the instrument from the grantor to the grantee, for the purpose and with the intention of passing the title from the former to the latter, and of relinquishing all power and control over the instrument itself. But the actual passing of the deed from the ha.nds of the one to the other is not absolutely essential in any case.
    3. "Where the grantor in a deed lying in the presence of the parties to it, with the intention of passing the estate and of divesting himself of all power over the instrument itself, directs the grantee to take possession of it, and the latter signifies his assent, the delivery will be complete without either of the ° parties actually touching the deed. *

    4. So, in such case, if the grantor should, with a like purpose and intent, pick up the deed and hand it to the grantee without saying anything, the ■delivery would be equally good. 18
    5. Act and intention are the two elements or conditions essential to a delivery of a deed. The act may be a manual transfer of the instrument, with or without words, or it may be a purely verbal act, as, when the grantee is simply directed to go and get the deed already prepared for him. It is the intention, however, which gives vitality to the deed.
    6. The crucial test of a delivery, in all cases, is the intent with which the act or acts relied on as the equivalent or substitute for actual delivery, were done. This intent is to be gathered from the conduct of the parties, particularly the grantor, and all the surrounding circumstances. . 4
    7. In the case of an adult grantee, the mere acknowledging and recording of a deed without his knowledge or consent, does not, of itself, amount to a delivery. Yet if it should appear, from all the circumstances, that these acts were intended for a delivery, they would have that effect.
    8. The acknowledging and recording of a deed by the grantor would amount to a delivery in the case of a voluntary settlement, or of a conveyance in trust for creditors, or of a conveyance to a person who, for any cause, is incapable of making a valid contract.

      9. Same—delivery must be unconditional. In the case of an actual delivery of the instrument by the grantor to the grantee, though accompanied with a verbal understanding that it is not to take effect except upon certain conditions, the title will nevertheless pass, upon the well-settled principle that a deed voluntarily placed in the hands of the grantee is never to be treated as an escrow.
    10. Same—of the acceptance. As a general rule, when nothing appears to show a contrary intention, if the owner of an estate makes a conveyance of it, and places the deed upon record without the knowledge of the grantee, the title will pass, if the latter, on being informed of the transaction, assents to it. When the conveyance is a voluntary settlement, or to one not sui juris, a formal assent need not be proved, as it will, if nothing further appear, be presumed.
    11. A party made, acknowledged and placed on record a deed of himself and wife for all his land, including his homestead, to two nephew's of his wife, one of whom was a minor, without their knowledge at the time. They expressed their assedt on being informed of the transaction. This, by itself, would show a valid delivery; but the proof showed that the grantor’s object -was to place the land beyond the reach of creditors, and that he retained the custody and control of the deed after it was recorded, and with this proof it was held that the deeds never took effect for want of a delivery.
    Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. Joseph Peirshing, for the appellants:
    • In case of a voluntary -settlement the delivery of the deed is presumed. Souverbye v. Arden, 1 Johns. Ch. 256; Bryan v. Wash, 2 Gilm. 568; Walker v. Walker, 43 Ill. 312; Reed v. Douthit, 62 id. 348.
    When a deed is recorded hy the grantor with the consent of the grantee, it is a good delivery. Mitchell v. Ryan, 3 Ohio St. 377; Cecil v. Beaver, 28 Iowa, 246; Snyder v. Lokenour, 2 Ired. Eq. 360; Ellington v. Currie, 5 id. 23; Hoffman v. Mackall, 5 Ohio St. 130.
    Other courts have held that the simple recording of a deed is prima facie evidence of a delivery. Himes v. Keighblingher, 14 Ill. 469; Mallett v. Page, 8 Ohio St. 367; Rivard v. Walker, 39 Ill. 415.

      Where the deed is of a beneficial character to the grantee, its acceptance by him will be presumed. Rivard v. Walker, 39 Ill. 413.
    In quite a number of cases it has been held that if, in a voluntary settlement, the possession of the deed remains with the grantor until his death, it does not invalidate the deed. Reed v. Douthit, 62 Ill. 348; Villiers v. Beaumont, 1 Vern. 100; Bale v. Newton, id. 464; Clavering v. Clavering, 2 id. 475; Souverbye v. Arden, 1 Johns. Ch. 240; Bunn v. Winthroop, id. 329; Boughton v. Boughton, 1 Atkyns, 625.
    The law presumes much more in favor of the delivery of deeds, in the case of voluntary settlements, especially when made to infants, than it does in cases between parties of full age, or in ordinary cases of bargain and sale. Bryan v. Walsh, 2 Gilm. 568; Masterson v. Cheek, 23 Ill. 72; Rivard v. Walker, 39 id. 415; Reed v. Douthit, 62 id. 348.
    It has been held that it is not necessary that the grantee should have the deed in his possession, or ever have seen it. If-it is delivered to a stranger for his benefit, it is sufficient. Hatch v. Hatch, 9 Mass. 309; Lessee of Shirley v. Ayres, 14 Ohio, 307.

    Where the deed to a child is absolute in form and beneficial in effect, and the grantor and father voluntarily causes the same to be recorded, this is, in law, a sufficient delivery to the infant, and the title to the lands conveyed will pass thereby. In such case actual manual delivery and a formal acceptance are not necessary. Cecil v. Beaver, 28 Iowa, 246.
    It has been decided that where the grantor to a voluntary conveyance, especially where the grantee is a minor, causes the deed to be recorded, it will be regarded as an absolute delivery, and that the grantor can not afterward direct the recorder not to deliver the deed to any other person—that the grantor has lost the control of the deed. Rivard v. Walker, 39 Ill. 415; Insurance Co. v. Campbell, 95 id. 285.

      Messrs. Smith & Forch, for the appellee:
    • The court'has repeatedly said: “The very essence of the delivery is the intention of the parties. ” Cline v. Jones, 111 Ill. 567; Bryan v. Wash, 2 Gilm. 557; Bears v. Spencer, 101 Ill. 433.
    Under the facts and circumstances of this case, it is clear that the mere act of recording the deeds did not, of itself, amount to a delivery. Herbert v. Herbert, Breese, 354.
    This case is directly in point, and the doctrine there announced has since been repeatedly re-affirmed by this court: Wiggins v. Lusk, 12 Ill. 132; Kingsbury v. Burnside, 58 id. 322; Insurance Co. v. Campbell, 95 id. 282.
    In the last ease, the court, in addition to the authorities cited in the ease in Breese, refer to Hawkes v. Pike, 105 Mass. 560; Derry Bank v. Webster, 44 N. H. 267; Young v. Guilbeau, 3 Wall. 641.
    The facts refute any presumption of a voluntary gift, and show the grantor intended to keep the control of the deed and property. Masterson v. Cheek, 23 Ill. 77; Hulick v. Scovill, 4 Gilm. 190; Thompson v. Jackson, 10 Bush, 429; Cline v. Jonis, 111 Ill. 563.
   Mr. Justice Mulkey

delivered the opinion of the Court':

The appellants, Herman and Bruno Weber, brought an action of ejectment in the Superior Court of Cook county, against Amalia Christen, for the recovery of certain lots and parcels of land, which, it is conceded, formerly belonged toiler husband, Ludwig Christen, now deceased. -There was a-judgment for defendant in the court below, and the plaintiffs appealed to this court.

It appears that Christen and wife, on the 15th of January, 1884, executed two deeds, which, together, purported to convey the premises in question to the plaintiffs, who are nephews, of Mrs. Christen, one of whom was at the time a minor. One of the parcels of land constituted the homestead premises of the grantors, but the deed covering it contained a formal release and waiver of the right of homestead therein. The deeds were properly acknowledged before a notary on the day of their execution, and on the following day were filed for record in the proper office. Having been recorded, they were shortly afterwards taken out of the office by Christen, and were kept by him or his wife until his death, which occurred in March, 1885. After that time she had exclusive possession and control of them up to the time of the commencement of this suit. Christen left no children or descendants of children. The appellants had no knowledge of the making of the deeds in question, or of the filing of them for record. The father of the grantees testifies, however, that Christen, on a certain occasion, informed them of what he had done, and that they expressed their approval by thanking Christen for it. On the other hand, the evidence tends to show that the real object in making the deed was to put the property beyond the reach of Ohristen’s creditors. Christen stated to the notary, as the latter testifies, that the deeds were made without consideration, and assigned as a reason therefor that he and his wife had been in trouble and did not wish to get into any more; that they had had to pay a judgment, and that he was afraid they would have to pay another; that “they wanted to convey the property, so the courts could not get hold of it.” When cautioned by the notary, and told that it was dangerous to transfer their property that way, Christen replied “that they relied perfectly on their relatives, and they would take all the responsibility of conveying them the property, because it would not hurt them any. ”

Assuming this testimony to be true, (and there is nothing in the record to the contrary,) it is very clear that Christen did not, by the making and recording of these deeds, intend to deprive himself of the property which they purported to convey. His purpose was evidently to make the public record show the title in his wife’s nephews, without any intention of parting with the property itself, and by this means protect it from legal process.

The question then arises, whether the making and recording of the deeds, under the circumstances and for the purpose stated, had the effect, notwithstanding the grantors purposely retained possession of the deeds, of passing the title to the premises to the grantees,—or, in other words, the question is, do the facts stated show a delivery of the deeds ? This is the only question in the case.

That a delivery, in every ease, is essential to the operation and validity of a deed, is conceded by all; but whether the facts relied on to establish a delivery in a particular case are sufficient for that purpose, often presents a difficult question to determine. This results from the fact that the law does not afford any universal test, applicable alike to all cases, by which the question of delivery may be certainly determined. The ordinary and simplest mode of delivering a deed, is, of course, the actual tradition or manual transfer of the instrument from the grantor to the grantee, for the purpose and with the intention of passing the title from the former to the latter, and of relinquishing all power and control over the instrument itself. But it is well settled that this actual passing of the deed from the hands of one to that.of the other is not absolutely essential in any ease. Other acts, accompanied with a clear intention to pass the title from one to the other, are equally efficacious in establishing a delivery. Thus, where the grantor*in a deed lying in the presence of the parties to it, with the intention of passing the estate and of .divesting himself of all power over the instrument itself, directs the grantee to take possession of it, and the latter signifies his assent, the delivery will be complete without either of the parties actually touching the deed. Or if, in the case supposed, the grantor should, with a like purpose and intent, pick up the instrument and hand it to the grantee without saying anything, the delivery would be equally good. Hence the oft-repeated saying in the books, that a deed may be delivered by some act without words, or with words without any act of delivery, or by words and acts both. The statement, as here formulated, is the substance of what is to be found in all the books which treat of this subject, yet it may be doubted whether it is not liable to misapprehension.

Act and intention are the two elements or conditions essential to a delivery. The act may, as W'e have just seen, be a manual transfer of the instrument, with or without words, or it may be a purely verbal act, as, where the grantee is simply directed to go and get the deed already prepared for him. It is the intention, however, which gives vitality, force and effect to the act, whatever that may be. There is this diversity, however: In the ease of an actual delivery of the instrument by the grantor to the grantee, though accompanied with a verbal understanding that it is not to take effect except upon certain conditions, the title will nevertheless pass, upon the well settled principle that a deed voluntarily placed in the hands of the grantee is never to be treated as an escrow. People v. Bostwick, 32 N. Y. 445.

As the deeds in this case were never actually delivered by the grantor, the question arises, what act or acts of his, verbal or otherwise, can be regarded or treated as an equivalent or substitute for such actual delivery ? If the acknowledgment and recording of the deeds can not be so regarded and treated, then, of course, there is nothing in the record that can be. It is to be regretted that the decisions on this subject can not be fully harmonized on any well-recognized principle. We think, however, that the crucial test, in all cases, is the intent with which the act or acts relied on as the equivalent or substitute for actual delivery were done. This intent, of course, is to be gathered from the conduct of .the parties, particularly the grantor, and all the surrounding circumstances. We think, in the case of an adult grantee, the acknowledging and recording of the deed without his knowledge or consent does not, of itself, according to the weight of authority, amount to-a delivery. (Parker v. Hill, 8 Metc. 447; Jackson, demise of Eames v. Phipps, 12 Johns. 418; Woodbury v. Fisher, 20 Ind. 388; Parmlee v. Simpson, 5 Wall. 81; Herbert v. Herbert, Breese, 354.) Yet if, from all the circumstances in such a case, it appears the grantor, by these acts, intended to give effect and operation to the deed and to relinquish all power and control over it, we think it clear the law would give the deed effect accordingly,—in other words, such acts would, in .law, amount to a delivery. This would certainly be so in the case of a voluntary settlement, or of a conveyance in trust-for the benefit of creditors, or of a conveyance to a person who, from any cause, is incapable of making a valid contract. Tompkins v. Wheeler, 16 Pet. 106; Young v. Guilbeau, 3 Wall. 636; Masterson v. Cheek et al. 23 Ill. 72; Bryan et al. v. Wash et al. 2 Gilm. 557.

It is also true, as a general proposition, where nothing appears to show a contrary intention, that if the owner of an estate makes a conveyance of it, and places the deed upon record without the knowledge of the grantee, the title will nevertheless pass, if the latter, on being informed of the transaction, assents to it. And where the conveyance is a voluntary settlement, or to one who is not sui juris, a formal assent need not be shown, as it will, if nothing further appear, be presumed.

In the present ease, it will be remembered, the deeds were made and put on record without the knowledge of the grantees, who were subsequently informed of the fact by the grantor. When so informed, according to the testimony of their father, they both expressed their assent and satisfaction at what had been done, but as one of them was a minor, no significance can therefore he attached to his approval of the conveyance. If nothing further appéared in the case than this, we would have no hesitancy in holding that the appellants acquired a good title to the property. But such is not the case. From what has already appeared, we are fully satisfied there was no original intention, on the part of Christen or his wife, to part with the deed or the estate in the land. This is not only shown by his declarations to the father of the grantees, and the- notary who took the acknowledgment, but also by the fact that he never parted with the custody or control over the deeds during his lifetime. He did not even permit them to remain in the clerk’s office but a few days, for the purpose of having them recorded. They were left at the office on the 16th of January, and taken out on the 5th of the following month.

We think, all the facts considered, this ease is clearly governed by the case of Union Mutual Ins. Co. et al. v. Campbell, 95 Ill. 267, in which will be found an extended discussion of the questions herein adverted to, and a general review of the authorities bearing upon them, and we therefore specially refer to that case, as containing a full expressionof our views on the subject.

While the case in hand is, in some respects, a close one, yet, upon the whole, we think the finding of the lower court is correct, and that the judgment should therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Craig Mr Justice Mulkey,

text:
    Samuel Berkowitz v. John T. Lester et al.

      Filed at Ottawa May 12, 1887.

    1. Circuit courts in Cook county—of their jurisdiction in criminat cases—and generally, of the courts in Ooolc county as existing under the present constitution. Section 1 of article 6 of the constitution provides that the judicial powers, except as in that article is otherwise provided, “shall be-vested in one Supreme Court, circuit courts, county courts, justices of the-■peace, police magistrates, and such courts as may be provided by law in and ¿or cities and incorporated towns. ” The exception in the section has refer-ence to section 11 of the article, which authorizes the creation of Appellate 'Courts, and to section 20, which gives power to create probate courts in certain counties.
    2. Section 23 of article 6, which changes the name of the Superior Court of Chicago to that of the Superior Court of Cook county, and continues its existence under the latter name, does not bring it within the terms of the exception in section 1. That court has precisely the same jurisdiction as circuit courts, and the judges thereof are vested with the same powers as judges of circuit courts.
    3. Section 12 of article 6 of the constitution, providing that “circuit courts shall have original jurisdiction of all causes in law and equity,” etc., has reference and applies to every circuit court in the State, regardless of location, its object being to place all circuit courts in the State upon the same footing, with like powers and jurisdiction.
    4. Section 26 of article 6 of the constitution continued in existence the Recorder’s Court of Chicago, changing its name to that of the Criminal Court of Cook county, and enlarged its jurisdiction so as to embrace all criminal and quasi criminal cases, and extended such jurisdiction over Cook county, and deprived it of its principal civil jurisdiction. Except as to civil matters, its jurisdiction is the same as that of the circuit courts. In criminal cases, and actions quasi criminal, its jurisdiction is made concurrent with that of the circuit courts, but not exclusive.
    5. The language in section 26 of article 6, that “it shall have the jurisdiction of a circuit court in all cases of criminal and quasi criminal nature arising in the county of Cook, ” means, merely, that it shall have the same jurisdiction as the circuit court in the matters named, without impairing, in any manner, the jurisdiction of the latter court in Cook county.
    6. An action was brought in the circuit court of Cook county, to recover the penalty given by section 132 of the Criminal Code, which that court dismissed, on the sole ground that it had no jurisdiction of any matters of a criminal nature: Held, that the circuit court had jurisdiction, and erred in dismissing the suit.
    Writ of Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Mr. Thomas J. Sutherland, for the plaintiff in error.
    Mr. John N. Jewett, and Mr. John S. Cook, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought in the circuit court of Cook county, by the plaintiff in error, to recover the statute penalty provided by section 132 of the Criminal Code. The action being quasi criminal, the circuit court, on motion of the defendants, dismissed the suit, on the sole ground, as shown by a bill of exceptions in an amended record filed in the cause, that the circuit court of Cook county, under the constitution and laws of the State, has no jurisdiction of the subject matter of such an action. No bond for costs was filed by the plaintiff, as is required by the statute in such cases, and the plaintiff might have been ruled to file' a bond, and upon failure to observe the rule, the action, for that reason alone, might have been dismissed; but no objection of this character was taken, and hence the sole and only question to be determined is, whether the circuit court of Cook county has jurisdiction of a criminal or quasi criminal action.

It is insisted, in the argument, that under the constitution exclusive jurisdiction is conferred upon the Criminal Court of Cook county in all cases of criminal and quasi criminal nature, arising in the county of Cook. In order to obtain a correct understanding of the question involved, it will be necessary to refer to some of the provisions of article 6 of the constitution, relating to the judicial department of the State.

The article contains thirty-three sections, arranged under different heads. Section 1 provides that “the judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be provided by law in and for cities and incorporated towns.” The exception alluded to in the article has reference, no doubt, to section 11 of the article, which provides that Appellate Courts may be created after 1874, and also to section 20 of the article, which .provides that the General Assembly may establisli probate courts in each county having a population of over 50,000. In all other respects, the judicial powers seem to be vested in a Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be provided by law in and for cities and incorporated towns.

Section 23 provides that the Superior Court of Chicago shall be continued, and called the Superior Court of Cook county; but this does not bring the Superior Court within the terms of the exception, as judges of the Superior Court and judges of the circuit court exercise the same powers, and, under the constitution, are placed upon the same footing. (Jones v. Albee, 70 Ill. 34; Samuel v. Agnew, 80 id. 553.) Indeed, under the constitution, there is no distinction, except in name, between the Superior Court of Cook county and the circuit court of Cook county. Both courts have the same jurisdiction' and exercise the same powers.

The next section which seems to have a bearing on the question is section 12, as follows: “Circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law. ” The language employed in this section is plain, and its meaning is apparent. The expression, “circuit courts,” is general. It has reference to every circuit court in the State, regardless of location. The object being to place all circuit courts in the State upon the same footing, with like powers and jurisdiction, whether the circuit court may be located in Cairo or Chicago was a matter of no consequence. The jurisdiction, under the terms of the constitution, is the same in every circuit in the State. This view is manifest from section 29 of the same article, which declares that all laws relating to courts shall be general, and of uniform operation; and the organization, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.

In speaking of this section of the constitution, in People v. Rumsey, 64 Ill. 45, soon after the adoption of the constitution, this court said: “We can not regard this provision as only a guide and direction to future legislatures in the enactment of laws concerning the practice of the courts. The courts of Cook county are of the same class or grade as the courts throughout the State, and are embraced within the provision of the constitution. What was the object of the constitution, ■and what the evil intended to be remedied ? * * * It was intended to abrogate all this special legislation, and establish uniformity in the powers, proceedings and practice of all the ■courts of this State of the same class or grade.”

It is not questioned that the circuit courts of Cook county are of the same class or grade as the circuit courts in the rest ■of the State. Nor is it denied that a circuit court outside of Cook county has jurisdiction of an action quasi criminal in •character, like this action. If, then, as held in the case cited, the constitution, of itself, established uniformity in the powers and practice of all the circuit courts of the State, the question involved would seem to be free from difficulty. In order to hold that the circuit court of Cook, county has no jurisdiction of this action, it must be held that the circuit courts of that ■county are of a different grade from the circuit courts in the other counties of the State, which can not be done; and in addition to this, section 29 of article 6, of the constitution, must be disregarded. This we are not prepared to do.

But it is said that section 26 of article 6 confers exclusive jurisdiction on the Criminal Court of Cook county. That section is as follows:

“Sec. 26. The Recorder’s Court of the city of Chicago shall be continued, and shall be called the ‘Criminal Court of Cook county.’ It shall have the jurisdiction of a circuit court in all cases of criminal and quasi criminal nature, arising in the ■county of Cook, or that may be brought before said court pursuant to law; and all recognizances and appeals taken in said county in criminal and quasi criminal cases, shall be returnable and taken to said court. It shall have no jurisdiction in civil cases, except in those on behalf of the People, and incident to such criminal or quasi criminal matters, and to dispose of unfinished business. The terms of said Criminal Court of Cook county shall be held -by one or more of the judges of the circuit or Superior courts of Cook county, as nearly as may be, in alternation, as may be determined by said judges or provided by law. Said judges shall be ex officio judges of said court.”

When the constitution of 1870 was adopted, there existed in Chicago a court known as a “Recorder’s Court. ” The first, section of the act creating the Recorder’s Court declared that there should be established, in the city of Chicago, an inferior court of civil and criminal jurisdiction, which should, be a court of record, by the name of the “Recorder’s Court of the City of Chicago,” and should have concurrent jurisdiction within said city, with the circuit court, in all criminal cases' except treason and murder, and of civil cases where the amount in controversy should not exceed $100. By a subsequent act it was provided that the inferior courts which were then or might thereafter be established in the cities in this-State, should have concurrent jurisdiction with the circuit courts in all civil and criminal cases, except in cases of murder and treason, and that the rules of practice in such inferior-courts should conform to the rules of practice in the circuit courts. Seates’ Stat. 671.

These provisions of the law show the character and jurisdiction of the Recorder’s Court when the constitution of 1870’ went into effect. While, in form, the Recorder’s Court was continued, yet its name was changed; its territorial jurisdiction extended from the boundaries of the city of Chicago to- ■ those of the county of Cook; its criminal jurisdiction was enlarged to include treason and murder, and its jurisdiction,, in cases purely civil, was abolished.

In Mitchell v. People, 70 Ill. 138, in speaking of this court, we said: “The Criminal Court of Cook county is of the same class or grade as the circuit courts of the State, and has the same jurisdiction and powers in criminal cases.” But while this court was raised to the grade of a circuit court, and section 26 expressly declares that “it shall have the jurisdiction of a circuit court in all cases of criminal and quasi criminal nature arising in the county of Cook, ” we find nothing that confers exclusive jurisdiction, in such cases, on the court. If it had been intended by this section of the constitution to take from the circuit court of Cook county a part of the jurisdiction of that court and confer exclusive jurisdiction on the new court, or Criminal Court, as it is called, it is apparent that different language would have been used to express that intention. The language, “it shall have the jurisdiction of a circuit court in all cases of a criminal and quasi criminal nature,” means, merely, that it shall have the same jurisdiction as the circuit court, without impairing, in any manner, the jurisdiction of the latter court. The constitution should be so construed as to give effect to all of its provisions, but if section 26 was construed in such a manner as to take from the circuit court of Cook county, jurisdiction in criminal and quasi criminal cases, the effect would be that the circuit court in Cook county would have one jurisdiction while the circuit courts outside of Cook county would have another, thus nullifying that principle of uniformity enjoined by section 29 of article 6, heretofore cited. We do not believe that the framers of article 6 of the constitution, or the people who adopted it, ever intended to -establish one judicial system, as respects circuit courts, for Cook county,- and a different system for the balance of the State; but, on the other hand, we think the intention was to establish one system for the whole State, uniform in its operation. The Criminal Court of Cook county is held by a circuit judge, and is, in effect, a circuit court with criminal jurisdiction.

We are not unmindful of the fact that section 2 of division 10, of the Criminal Code, provides that the Criminal Court of Cook county shall have exclusive original jurisdiction of all criminal offences in the county of Cook; but this statute can have no bearing on the case. The jurisdiction of the circuit courts, so far as conferred by the constitution, can not be taken away, nor can it be changed or abridged by an act of the legislature.

' The judgment will be reversed and the cause remanded.

Judgment reversed.

Mr Justice Mulkey,

dissenting:

Being unable to concur in the conclusion or reasoning of the majority of the court in the foregoing opinion, I feel it due to myself, in view of the importance of the questions involved, to state, somewhat at length, the grounds of my ' dissent.

The plaintiff in error, Samuel Berkowitz, brought an action on the case in the circuit court of Cook county, against the defendants in error, John Lester and Charles Schwartz, to recover certain penalties alleged to have been incurred under section 132, division 1, of the Criminal Code, relating to gaming. On motion of the defendants, this suit was dismissed, on the ground that under the constitution of this State the circuit court of Cook county has no jurisdiction in this class of cases. The plaintiff thereupon sued out this writ of error.

The simple question presented by the record for determination is, has the circuit court of Cook county jurisdiction of the subject matter of the suit in an action to recover a penalty. The answer to this question involves a construction of the several provisions of the constitution, which confer or limit jurisdiction of the circuit court of Cook county.

That all circuit courts outside of Cook county have jurisdiction in a case like this, is not questioned. On the other hand, it can not be denied that the judicial system provided by the constitution for Cook county, differs in some essential particulars from that which is provided for the State at large outside of Cook county, and the contention of defendants in error is, that the provisions of that instrument giving rise to this diversity in the two systems, operate as a limitation on the jurisdiction of the circuit court of Cook county, to the extent of depriving it of jurisdiction “in all cases of a criminal and quasi criminal nature.” Without such limitation it is clear the court, under section 2, article 6, of the constitution, would have jurisdiction in such cases. The case in hand is clearly one of a quasi criminal nature. Indeed, this is fully settled by the decisions of this court. (Naylor v. City of Galesburg, 56 Ill. 285; Wiggins v. City of Chicago, 68 id. 372; Tally v. Northfeld, 6 Bradw. 356.) Such being the case, it logically follows, that if the position of the defendants in error is correct, the circuit court ruled properly in holding that it was without jurisdiction, and in dismissing the suit for that reason.

Whether this contention of defendants in error is well founded or not, presents a constitutional question, the solution of which can not, it is clear, be materially affected by airy statutory provisions relating to the subject, for whatever jurisdiction the circuit courts of this State have, whether in or outside of Cook county, is derived directly from the con- - stitution, and consequently it is not within the power of the legislature to deprive them of any portion of it. While it is altogether proper for the judiciary, in doubtful eases, to adopt the construction which a coordinate branch of the government has placed upon a statutory or constitutional enactment, yet I am of opinion there is no such doubt in this case as to call for an application of that principle.

Section 1, article 6, of the constitution, relating exclusively to the judical department of government, is as follows: “The judicial pow'ers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be provided by law in and for cities and incorporated towns.” The concluding portion of this section clearly has no reference to any court then existing or created by the constitution, but to such courts only as the legislature may, under the constitution, establish in cities and incorporated towns. On’ the other hand, any court created or whose existence was continued by the constitution itself, and not found in the enumeration in that section, is necessarily embraced in the exception contained in the introductory part of the section. As falling within the exception, may be mentioned the Superior and Criminal Courts of Cook county, which are respectively provided for in sections 23 and 26.

The 12th section, already adverted to, provides that “circuit courts shall have original jurisdiction in all eases in law and equity, and such appellate jurisdiction as is or may be provided by law. ” This section, unaffected by other provisions of the constitution, would be clearly sufficient to have given the court below jurisdiction of this case. But, as above stated, the claim .is, that said section is materially modified and limited by other sections of the constitution, especially the 26tli section, which will be particularly considered further on. Sections from 23 to 28 inclusive, are occupied exclusively with matters pertaining to the judicial system in Cook county.

The 23d section declares, that the county of Cook shall be one judicial circuit; that the circuit court of that county shall consist of five judges, until their number shall be increased as therein provided; that the judge of the Recorder’s Court and the judge of the circuit court shall be two of such judges. Said section also continues the Superior Court of Chicago, and changes its name to that of Superior Court of Cook county; provides for the election and fixes the term of office, not only of the Superior Court judges, but of. the circuit court judges also, notwithstanding the election and term of office of the circuit judges for the State generally, had already been provided for in sections 13 and 14. The same is true of the clerks of these courts.

By the 24th section each of the judges of both of these courts is clothed with the power of a circuit judge, and is authorized to hold not only the court of which he is a member, but the other court also, or any branch of ■ either of said courts.

By the 25th section the circuit judges of Cook county may, when authorized by law, receive compensation in addition to that authorized to be paid to other circuit judges outside of Cook county. The same diversity exists even as to justices of the peace and police magistrates. They are required to be appointed by the Governor, on the recommendation of the judges of the circuit, Superior and county courts, and are not elective, as they are outside of Cook county.

These provisions, all considered, clearly show that the judicial system for Cook county has received separate and distinct treatment in the constitution, and in the main is a complete system of itself. Keeping this in view when considering the distribution of jurisdiction and powers among the courts which the constitution has provided for Cook county, there is certainly much force in the claim that the criminal and quasi criminal jurisdiction conferred upon the Criminal Court was intended by the framers of the constitution to be exclusive. It must also be admitted that this conclusion is greatly strengthened by the 26th section, article 6, of the constitution. That section is as follows:

“Sec. 26. The Recorder’s Court of the city of Chicago shall be continued, and shall be called the ‘Criminal Court of Cook county.’ It shall have the jurisdiction of a circuit court in all cases of criminal and quasi criminal nature, arising in the county of Cook, or that may be brought before said court pursuant to law; and all recognizances and appeals taken in said county in criminal and quasi criminal cases, shall be returnable and taken to said court. It shall have no jurisdiction in civil cases, except in those on behalf of the People, and incident to such criminal or quasi criminal matters, and to dispose of unfinished business. The terms of said Criminal Court of Cook county shall be held by one or more of the-judges of the circuit or Superior courts of Cook county, as-nearly as may be, in alternation, as may be determined by-said judges or provided by law. Said judges shall be ex officio judges of said court. ”

Several matters appearing on the face of this section .are to be carefully noted. First, it will be observed the existence-of the “Recorder’s Court” is recognized, and is declared continued as a part of the new order of things. It is then given, a new name, and, by implication, deprived of its old one. Henceforth it is to be known and called the “Criminal Court, of Cook county. ”

Next in order, the jurisdiction which it is thereafter to exercise, is specifically determined and declared in these words : “It shall have the jurisdiction of a circuit court in all cases-of a criminal and quasi criminal nature, arising in the county of Cook, or that may be brought before said court pursuant-to law.” Here, the question arises, whether the framers of the constitution intended, by the use of these words, that the-jurisdiction conferred by them should be exclusive, or whether they intended it should be merely concurrent with that of theeircuit and Superior courts. If they intended it should be-exclusive, the legal effect of it was, of' course, to deprive the-circuit and Superior courts of Cook county of all criminal and quasi criminal jurisdiction. If the operative words conferring jurisdiction are alone to be looked to for the purpose-of ascertaining the intention of the framers of the constitution, I concede there is nothing in them to justify the conclusion that the jurisdiction thus conferred was intended to-be exclusive. But there are other important provisions found in this section, which must be taken into account in determining the question.

After having defined the jurisdiction of the court in the manner we have seen, it is then declared, that “all recognizances and appeals taken in said county in criminal and quasi criminal cases, shall be returnable and taken to said court.” This important provision is immediately followed by another, which strips the Criminal Court of jurisdiction in all future civil eases, except those on behalf of the People, and incident to such criminal and quasi criminal matters. Here, then, is a court established for the sole purpose of transacting therein criminal and quasi criminal business, and the question recurs, was it intended that all such business arising in Cook county should be transacted therein? If not, why are all appeals and recognizances in such cases required to be taken to and made returnable in that court ? It is not perceived how this requirement of the constitution is to be given effect if it was the intention, that, notwithstanding that provision, the circuit and Superior courts should still retain jurisdiction in that class of eases. The very idea that a court into which no recognizance could be lawfully returned would be able to exercise general criminal jurisdiction under the laws of this State, seems to involve an absurdity which I am not prepared to impute to the framers of the constitution.

It is also to be noted, that by the 23d section the judge of the B,ec order’s Court is converted into a judge of the circuit court, and that by the 26th section now under consideration, the terms of the Criminal Court are required to be held in rotation by the judges of the circuit and Superior courts. So we have here a court,—a mere legal entity,—with its jurisdiction prescribed, without any judge of its own to preside over it,—a court whose powers and functions, though limited to criminal and quasi criminal business exclusively, can only be exercised and performed through the instrumentality of a ■ judge of the circuit or Superior courts. The duties and services of the judge, when thus occupied, are, of course, entirely suspended, so far as the court of which he is judge is concerned. This would all seem well enough upon the hypothesis that the same class of business could not be lawfully done in his own court; but upon the hypothesis it could be, it is not perceived what useful purpose can be subserved by the establishment of the Criminal Court. The effect of the system, upon the latter theory, is simply to stop one court to enable its judge to do business in another that might just as well be done in his own.

If the Criminal Court had been provided with a judge of its own, it might be urged, with some degree of plausibility, that although its jurisdiction is concurrent with the circuit and Superior courts, it nevertheless affords additional facilities for the prompt disposition of legal business. But as no business whatever can be done in this court without withdrawing a judge, for that purpose, from one of the other courts, there would seem to be no just foundation for even this claim. It is clear that the judge, for the time thus occupied in the Criminal Court, would be able to discharge the same amount of like business in his own court, so that, upon this view, there is certainly nothing gained by the establishment of the Criminal Court. On the hypothesis that its jurisdiction is concurrent, merely, about the only effect it could have would be to retard, rather than facilitate, legal business, and add largely to the expenses and burthens of the people who maintain it. In short, there seem to be so many apparently insuperable objections to this view, that I can not accept it as the correct one.

While the constitution is not as explicit on the subject as it might be, yet, upon the whole, I think there is little or no room to doubt that the makers of that instrument intended that the jurisdiction conferred upon the Criminal Court should be exclusive.

Many other reasons might be added to those already stated, in support of this conclusion, but in view of the apparently insuperable difficulties that lie in the way of adopting the opposite theory, what has already been said is deemed sufficient. It only remains to notice a few of the objections which are urged by counsel against the conclusion reached by the court below, and in which I fully concur.

First, it is supposed and claimed by counsel to be inconsistent with sections 1, 2 and 3, division 10, of the Criminal Code. This, I think, is an entire misapprehension. The sections in question are as follows:

“Sec. 1. The circuit courts of the several counties, except of the county of Cook, shall have exclusive original jurisdiction of all criminal offences, except as otherwise provided by law.
“Sec. 2. The Criminal Court of Cook county shall have exclusive original jurisdiction of all criminal offences in the county of Cook, except such as is conferred upon justices of the peace, and appellate jurisdiction from justices of the peace.
“Sec. 3. All offences cognizable in the said courts shall be prosecuted by indictment.”

Nothing is perceived in these sections of the statute, nor has anything been suggested, which is inconsistent with the construction above given to section 26 of the constitution. On the contrary, they are a mere legislative construction of the constitution, which was simply followed by the lower court in this case.

It is suggested by counsel, that if the present suit had been brought in the Criminal Court, instead of the circuit court, he would have been confronted with section 3, above cited, which declares that “all offences cognizable in said court shall be prosecuted by indictment, ” and as the penalties sued for in this case can only be recovered, under the statute, in an action on the case, and not by indictment, the action, therefore, would necessarily have failed. The trouble with counsel’s logic is in assuming that a case of a quasi criminal nature, in the sense of the constitution, is a criminal offence, within the meaning of the 3d section. In fact, the very contrary of this is true. Thus, it is said in Wiggins v. City of Chicago, 68 Ill. 372, where this very question was under consideration: “ When the entire section, ”—that is, the 26th section of the-constitution, supra,—“is considered in the light of our jurisprudence, we must conclude that it was intended to embrace all offences not crimes, but that are in the nature of crimes.” To the same effect is Tally v. Northfield, 6 Bradw. 356. On the other hand, the word “ offences, ” as used in section 3, division 10, of the Criminal Code, means criminal offences, as specified in the preceding section, and therefore includes all crimes and misdemeanors.

It may be true, and doubtless is, as claimed by counsel, that in some instances, the circuit and Superior courts have-assumed jurisdiction in cases like the present, and that they have, when unchallenged, passed through this court. But this is a matter of no consequence, so far as the present inquiry is concerned. The question here is, what has this court decided on the subject. A question, though involved in a case, if not raised in the argument or passed upon by a court of review, can certainly have no controlling influence in determining the question when directly presented. In short, I do not think any of the objections urged are tenable.

For the reasons stated, I have no doubt of the correctness of the decision of the court helow.

I am authorized to state that Mr. Justice Magruder concurs in the general view here presented.


author: Mr. Justice Sheldon

text:
    Henry H. Gage v. Arba N. Waterman.

      Filed at Ottawa May 12, 1887.

    1. Tax title—service of notice on agent—sufficiency of affidavit. Art affidavit made for a tax deed on a sale of land for taxes, stating the service of a notice of the sale on A by handing the same to B, the legal agent of A, on, etc., and that A was the only person in possession of the property on the date of such service, and that the property was taxed in his name, is insufficient to show a service on A. It does not show that B’s agency was such as to make the service on him equivalent to service on A.
    2. Same—sufficiency of the notice—certainty as to character of tax or assessment. A notice of a tax sale showing that the property was “taxed or specially assessed for the years 1874 and 1875,” failing to show which, whether taxed or specially assessed, is insufficient to authorize the making of a tax deed. There is a difference between a tax and a special assessment, and the notice should state whether it was for a tax or a special assessment, as the case may be.
    3. Setting aside tax deed1—upon what terms. The proper condition to be imposed upon setting aside a tax deed, is to require the complainant to pay the amount paid at the sale, with all subsequently paid taxes and assessments, together with interest thereon at six per cent per annum.
    Appeal from the Circuit Court of Cook county; the Hon. John C. Bagby, Judge, presiding.
    Mr. Augustus ÜST. Gage, for the appellant:
    By the law then in force, the notice was required to he served only on the occupant of the land and the person in whose name it was taxed. It was not required to he served on the owner. Bev. Stat. 1874, chap. 120, see. 216; Garrick v. Chamberlain, 97 Ill. 620; Gage v. Bailey, 102 id. 11; Frew v. Taylor, 106 id. 159.
    The amount appellee was required to pay appellant as a condition of relief, was not sufficient. Public policy demands that the owner shall pay redemption upon land he suffers to-be sold for taxes. Gage v. Busse, 102 Ill. 592.

      The legislature has provided that relief should only be granted upon the condition that the penalties upon the sale ■be paid to the holder of the tax deed. Eev. Stat. 1874, chap. 120, sec. 224.
    Mr. John P. Wilson, for the appellee:
    While the notice was undoubtedly insufficient, it failing to state that the property was taxed for any year, or specially assessed for any year, but leaves the owner to find out as best he could whether his land had been sold for a tax or a special assessment, there are other objections. It was also insufficient because no mention was made of the fact that the property had been sold for taxes of 1873.
    It has been settled by repeated decisions of this court, that the rule of allowing the amount paid at the sale, and also all subsequently paid taxes and assessments, together with interest thereon, is the proper one. Phelps v. Harding, 87 Ill. 442; Smith v. Hutchinson, 108 id. 662; Barnett v. Cline, 60 id. 207.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill in this case was filed by Waterman, against Gage, to set aside two tax deeds to the property in controversy. The court below decreed the relief prayed, and the defendant appealed.

One of said tax deeds was issued to Henry H. Gage, the defendant, on January 20, 1876. The affidavit of giving notice of the tax sale, which is relied upon as the evidence of such notice, states the service of a notice of the tax sale on J. Young Scammon, by handing the same to Mr. Bogue, the legal agent for said Scammon, on May 4, 1875; that said Scammon was the only person in possession of the property on the said date, and that the same was taxed in his name. The requirement of the statute is, that the occupant or person in actual possession of the land, and the person in whose name the same was taxed or specially assessed, shall be served with the notice. This affidavit is insufficient, as showing service of notice upon Eir. Scammon. In what matter, to what extent Eli-. Bogue was his legal agent, and how far he represented him, does noi appear. It is by no means manifest that such was his agency as to make the service of notice upon him equivalent to service of notice upon Scammon.

The other tax deed issued to appellant was dated July 10, 1879, for the taxes of 1874 and 1875, upon a sale made September 21, 1876. The sale was to oH. Coombs, and the certificate of sale was assigned, by indorsement, to appellant. Among the reasons for which this tax deed is claimed to be void, is, that the notice of sale.did not state for what year or years the lot was taxed or specially assessed, as required by the statute. The statute requires that the purchaser at a tax sale shall serve a notice of such purchase on every person in actual possession or occupancy of the land or lot purchased, and also the person in whose name the same was taxed or specially assessed, “in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire.” The statute is express that no purchaser shall be entitled to a deed until he shall have complied with the above conditions, and shall, by himself or agent, have made an affidavit of such compliance, stating particularly the facts relied on as such compliance. Bev. Stat. 1874, chap. 120, secs. 216, 217.

The objection taken to the notice served in the case of this deed is, that the notice fails to state that the property was taxed for any year, or specially assessed for any year, but left it for the owner to find out, as best he could, whether his land had been sold for a tax or for a special assessment. The statement in the notice, in this respect, as shown by the affidavit of service of notice, is, that the property was “taxed or specially assessed for the years 1874 and 1875,” failing to show which was the case—whether taxed or specially assessed. Appellant answers, that the notice was literally in compliance with the statute, in this behalf. We are inclined to think the compliance was too literal. There is a difference between a tax and a special assessment. It might be of consequence to'the land owner to know whether his property was sold for a tax or special assessment. This notice did not afford that information. We think it should have done so, and have stated which it was,-—a tax or special assessment,—for which the property was sold, and not have rested with saying, merely, that it was “taxed or specially assessed; ” that the true construction is, that the notice state “for what year taxed or specially assessed, ” as the case may be.

It is objected that the amount appellee was required to pay appellant as a condition of relief was not sufficient. Appellee was required to deposit only the amount of the sale, with interest at the- rate of six per cent per annum thereon, from the date of the sale,- whereas, as appellant contends, appellee should have paid redemption, with interest at six 2Der cent per annum, u23on that sum, from the date of the expiration of redemption. It has been held by repeated decisions of this court, that the rule of allowing the amount paid at the sale, and also all subsequently paid taxes and assessments, together with interest thereon, is the proper one. (Barnett v. Cline, 60 Ill. 207; Phelps v. Harding, 87 id. 442; Smith v. Hutchinson, 108 id. 662.) Such was the amount here allowed.

The decree will be affirmed.

Decree affirmed.