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    The Illinois State Board of Dental Examiners v. The People ex rel. John M. Cooper.

      Filed at Ottawa September 26, 1887.

    1. Mandamus—to control the exercise of a discretionary power. While it is true that mandamus will not lie to compel the performance of acts or duties which necessarily call for the exercise of judgment on the part of the officer or body at whose hands their performance is required; yet if a discretionary power is exercised with manifest injustice, or such discretion is grossly abused, or exercised from selfish and unworthy motives, the courts are not precluded from commanding its due and proper exercise. Such abuse of discretion will be controlled by mandamus.

    2. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion, or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. In such case, mandamus will afford a remedy. The discretion vested in official bodies must not be exercised arbitrarily, for the gratification of feelings of malevolence, or for "the attainment of merely personal and selfish ends, but for the public good, and should be controlled by an honest judgment, and not by passion or prejudice.
    3. Same—State Board of Dental Examiners—mandamus to compel them, to issue a license. The State Board of Dental Examiners, on the application of a graduate of a dental college for a license, have no discretion as to any other matter than the character of the college issuing the diploma, as to its being reputable or not. When they have decided that such college is reputable, their judicial or discretionary power is exhausted, and the duty to issue the license becomes a mere ministerial one, and its performance may be enforced by mandamus.

    4. State Boabd oe Dental Examinees—of thevr powers and duties in the matter of granting or refusing licenses. On the application to the State Board of Dental Examiners for a license to practice dental surgery by a graduate of a dental college, the board have a right to decide whether the college at which the applicant has graduated is reputable or not; but they must decide that question upon just and fair principles, and not upon motives of self-interest, to crush out a rival college to the one in which they are interested as members of its faculty.
    5. Where a regular graduate of a dental college applies to the board of dental examiners for a license to practice dentistry, the only question for them to determine is, whether such college is reputable or not; and the law clothes them, and no other body, with the power to decide the question. They can not delegate their discretionary power to an organization beyond the limits of the State.
    6. Same—what is a “reputable dental college.” The court are not prepared to hold that a dental college which requires a preliminary examination before admitting students to matriculation, and which requires students before -graduation to attend upon two full regular courses of lectures and practical instructions, each to be of not less than five months’ duration, and to be held in separate years, with practical instructions intervening between the courses, as required by the State Board of Dental Examiners, may not in other respects lack some of the elements which make such an institution reputable,-—as, where it may have examinations and lectures of an inferior character, and may be under the charge of inferior instructors.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Loein C. Collins, Judge, presiding.
    The following petition for mandamus was filed in the circuit court of Cook county:
    Tour petitioner, the People of the State of Illinois, on the relation of John M. Cooper, respectfully shows unto your honor that relator is a resident of the city of Chicago, county of Cook and State of Hlinois, and is a citizen of said State, of lawful age.
    Delator further shows, that having selected the practice of dentistry and dental surgery as his profession and life work, in order to fit and prepare himself for said profession and work, he did, on or about the — day of November, A. D. 1884, enter and matriculate as a student in the Chicago College of Dental Surgery, an institution situated in the said city of Chicago, organized for the purpose of and engaged in educating persons who might become students therein in the theory and practice of dentistry and dental surgery; that relator remained as such student in said college, and diligently prosecuted his studies therein throughout the whole course of instruction, of not less than five months, given by said college during the years 1884 and 1885, and that during the summer and fall of 1885 he was engaged in receiving practical instruction in dentistry and dental surgery, up to the time of entering as a student the dental college hereinafter named.
    Eelator further shows, that on, to-wit, the 2d day of November, 1885, he entered the Northwestern College of Dental Surgery, and matriculated as a student therein; that said last named institution was then and is now an institution organized for the purpose of and engaged in educating persons who become students therein, in the theory and practice of dentistry and dental surgery, and was duly incorporated and organized under the laws of the State of Illinois, October, 1885, and is now, and has been since its organization, a reputable dental college, duly authorized by the laws of this State, in which there was, at the time of the issue of the diploma to relator, as hereinafter mentioned, annually delivered a full course of lectures and instruction in dental surgery, not less than five months in length.
    Eelator further shows, that he attended, regularly and faithfully, said last mentioned college, as a student therein, during the one full, regular course of instruction held and given in said last mentioned college during the years 1885 and 1886, which course was of not less than five months duration; that relator thus completed two regular, full five months courses of instruction in the practice of dentistry and dental surgery, one in each of said colleges, said courses being had in separate years, with practical instruction intervening between the two courses.
    Eelator further shows, that on certification and proof of the above facts the said Northwestern College of Dental Surgery graduated your petitioner in due form on the 3d day of April, 1886, and thereupon, to-wit, on the day and year last aforesaid, a diploma was issued to your petitioner by the faculty of said Northwestern College of Dental Surgery, duly certified by the signatures of the members of the faculty of said college, and the officers thereof, conferring upon petitioner the title and degree of Doctor of Dental Surgery.;
    Belator further shows, that the said Northwestern College of Dental Surgery has in all respects complied with the requirements of the laws of the State relating to and regulating the practice of dentistry in the State of Illinois, and has in all respects complied with the rules and regulations adopted and established by the State Board of Dental Examiners of the State of Illinois, and is in all respects a reputable dental college, and has been decided to be entitled to be recognized as reputable by the said State Board of Dental Examiners, by strictly complying with the standing rule of said State Board of Dental Examiners, which was adopted by said board in September, 1884, and has been since June, 1885, and still is, the rule of said board for the recognition of dental colleges as reputable, which rule is as follows:

      “Resolved, that after June, 1885, the Illinois State Board of Dental Examiners will recognize as reputable only such dental colleges as require, as a requisite for graduation, attendance upon two full, regular courses of lectures and practical instruction, which courses shall each be of not less than five months duration, and shall be held in separate years, with practical instruction intervening between the courses. Such colleges must also require a preliminary examination before admitting students to matriculation, provided that no certificate horn a high or normal school, or other literary institution, is presented by the candidate.”
    Belator avers that the said Northwestern College of Dental Surgery has, from its organization and during the time your relator was a student therein, strictly and entirely complied with all and each of the requirements of said rule, and was so ■complying with the same at the time the diploma was issued io relator, and that by virtue of said compliance, and by virtue •of the terms of said standing rule, the said college has been recognized by the said State Board of Dental Examiners as a reputable dental college, and was so recognized at the time •of the presentation to said board of the diploma of relator, as .hereinafter set forth, and still is so recognized.
    Delator further shows to the court, that desiring to engage in the practice of his profession of dentistry, he afterward, to-wit, on or about the 11th day of May, 1886, presented his said •diploma so received from the faculty of the said Northwestern •College of Dental Surgery, duly authorized, to the Illinois State Board of Dental Examiners, at a regular meeting of •said board held in the city of Dock Island, Illinois, on or about the 11th day of May, 1886, and tendered to said board a fee •of one dollar, as provided by law, and demanded that said board issue to him, the relator, a license to practice dentistry in the State of Illinois, as provided by law.
    Delator further shows to the court, that it was the duty of ■said Board of Dental Examiners, upon the presentation of said diploma and the tender of the fee of one dollar, as aforesaid, to said board by said relator, and the demand as aforesaid, to ascertain, if it was not already informed, whether the said Northwestern College of Dental Surgery had complied with the above mentioned rule of said board as to recognition, as being reputable, and finding that it had so complied, and was under said rule to be recognized by said board as reputable, as aforesaid, to issue to relator a license to practice dentistry in the said State of Illinois, but that said Board of Dental Examiners, not regarding their duty in this behalf, thereupon, to-wit, on the day and year last aforesaid, refused and neglected to issue to relator a license to practice dentistry in this State, .and have continually refused, and still do refuse, to issue to relator such license.

      Tour relator further shows, that after waiting for his license-for a reasonable time after making application therefor in the manner aforesaid, he afterward, to-wit, on the 25th day of May, 1886, wrote to George H. Cushing, secretary of the said Illinois State Board of Dental Examiners, and inquired why his license had not been issued, to which inquiry he received, reply, of which the following is a copy:
    “Illinois State Boabd of Dental Examinees,
    Chicago, May 26, 1886.

    “Dr. J. M. Coopeb :

      “Dear Sir—In reply to y’rs of 25th, I would say that the-matter of issuing a license on your diploma from the Northwestern College of Dental Examiners was referred to the National Association of Dental Examiners, which will meet in, August. Until them decision I can not issue any license.
    Besp y y rs, Geo. H. Cushing,

      Sect. IU. St. Bd. Den. Exs.

    “P. S. I return herewith the $1.—G. H. C.”
    Belator shows that the said Board of Dental Examiners not. only refused to issue to him the license to which he was entitled, and returned to him the dollar paid by him to said board for such license, as required by law, but voluntarily assumed to refer the application of relator to a so-called National Association of Dental Examiners for decision, as to whether relator could have license to practice dentistry in the State of' Illinois, which he has, by law, a right to, thus unlawfully,, willfully and designedly usurping powers not given said board by law, and neglecting, failing -and refusing to perform the-duty imposed by law upon said board, in reckless disregard, of the rights of relator, and of their obligations to the people-of the whole State.
    Belator further shows, that the said so-called National Association of Dental Examiners is, as your relator is informed, and believes, a mere voluntary association of men, who meet, in convention at Saratoga, in the State of New York, in August next; that it is composed mostly of men residing outside of the State of Illinois, and is clothed with no executive or legal power to decide upon the rights of relator, or anyone else, to a license to practice dentistry in the State of Illinois; that in pretending and assuming to refer the question to a voluntary and irresponsible body of men outside the State of Illinois, clothed with no legal power, said State Board of Dental Examiners refused to perform the functions of the office for which said board was created, and for which said board was constituted and appointed.
    Delator further shows, that after the above described action was taken by the board, he employed an attorney to bring suit for mandamus against said Board of Dental Examiners, to compel them to issue to your relator his license to practice dentistry in the State of Illinois, which he was entitled to by law, and that his attorney was preparing a petition for that purpose, when the State Board of Dental Examiners, by and through a written official communication signed by the secretary of said board, notified relator’s attorney that if he would wait before commencing a suit for mandamus a reasonable time, the said board would call a meeting as soon as practicable, and would issue to relator a license to practice dentistry in the State of Illinois, as aforesaid, and repeated said promise to issue said license as soon as they could have a meeting, both to relator and his attorney; and that relator’s attorney did wait, as requested by said board, for it to have a meeting and issue said license, as the board had promised and were required by law to do, and that said board held a meeting as promised, in the city of Chicago, in said State, on the 24th and 25th of June, A. D. 1886, and instead of issuing said license to relator, as promised, the said board refused to issue such license to relator, and falsely and fraudulently pretended then to find that said Northwestern College of Dental Surgery was not a reputable college.

      And relator avers, that said last mentioned action of the board was not taken as the deliberate judgment of the board, after due inquiry as to whether said dental college was reputable or not, and was not based upon proper evidence to that effect, but such action was taken arbitrarily, with the wicked and malicious design, solely, of depriving relator of the license and right to practice dentistry in the State of Illinois, on account of the malice of the members of said board toward the relator, because he had left the said Chicago College of Dental Surgery, after attendance there of one course, and had graduated at the said Northwestern College of Dental Surgery, and for the further wicked and malicious design of injuring the said Northwestern College of Dental Surgery, and preventing it from getting patronage, by arbitrarily and wickedly refusing to license its graduates, because of such malice and hatred of said Board of Dental Examiners, being hereinafter fully set forth.
    Belator further shows, that at the time of the refusal of said board to issue license to relator, the said board well knew that the said Northwestern College of Dental Surgery was a reputable dental college, duly organized under the laws of the State of Illinois, and well knew that said college had fully complied with the rule adopted by said board for the recognition of dental colleges as reputable by said board, and well knew that said board had already recognized said dental college as being reputable.
    Belator further shows, that the said State Board of Dental Examiners consists, by law, of five persons, and that the persons composing said board at the time of refusing to issue said license, and now, were and are as follows: G. Y. Black, A. W. Harlan, Homer Judd, C. A. Kitchen, and George H. Cushing, and that four of the five members of said board, to-wit, G. Y. Black, A. W. Harlan, George H. Cushing and C. A. Kitchen, are interested in and connected with the said Chicago College of Dental Surgery, either as members of the faculty of or instructors in the same; that the said Chicago College of Dental Surgery is an older dental college in the city of Chicago than the said Northwestern College of Dental Surgery, from which petitioner graduated and received his said diploma, the said last mentioned college having organized as such only in 1885; that the two colleges aforesaid are rivals and competitors for patronage of students, and reputation as institutions for teaching dentistry and dental surgery, and that the said State Board of Dental Examiners is entirely under the control of the said Chicago College of Dental Surgery, and four-fifths of said board belonging to -said Chicago college, the said board is determined, if possible, to cripple and destroy the said Northwestern college, and for that reason are willing to abuse, and in the acts above mentioned have shamefully abused, their power as such officers and members of such State board, to protect the college to which they belong from competition, and to destroy and cripple a rival.
    And relator charges the fact to be, that the said State Board of Dental Examiners, controlled by the said Chicago College of Dental Surgery, intend and design, by their action in refusing a license to relator, not only to prevent relator from practicing his profession, for which he has, at great expense of time and money, fitted himself, and which he is lawfully entitled to practice, but also to hinder, cripple and destroy the successful operation of the said Northwestern College of Dental Surgery, by unlawfully and maliciously witholding from its graduates license to practice dentistry in the State of Illinois, thus deliberately abusing the powers in them vested, and prostituting them to the malicious design and purpose, as relator verily believes, of destroying and crushing out an honorable rival, which, in all its appointments and requirements for dental education, is just as reputable and complete as is the Chicago College of Dental Surgery, which the said board is thus wrongfully endeavoring to protect,—all of which the said board and the members thereof well know.

      Relator therefore distinctly charges, that said State Board of Dental Examiners, in total and reckless disregard of the duties of their office, refuse to perform the duties which they are required by law to perform; that they have, so far as relator’s rights are concerned, endeavored to evade the performance of their duties by pretending to shift the performance of those duties upon a voluntary association outside the State, and that the said board has, in the actions aforesaid, deliberately, wantonly and recklessly and maliciously abused the power and discretion in it vested by law, and still continues so-to do, in flagrant and outrageous disregard of relator’s rights, and the rights Of the People of the State.
    Relator further shows, that he has, at great expense and in the manner aforesaid, qualified himself for the practice of said profession; that he has spent much time and money in such preparation, and desires to make it his life profession, and that he depends upon the same for a living, and that by the failure and refusal of said Board of Dental Examiners to so issue and grant relator a license to practice dentistry, as aforesaid, he, the relator, has been prevented from practicing dentistry in this State, as he is lawfully and by right entitled to do, and still is so prevented; that he is a citizen and resident of, and desires to remain in, the State, and follow the practice of dentistry, for which he has prepared himself.
    Relator further shows, that the questions here presented not only involve the individual rights of the relator, which are of grave importance to him, but the right of dental colleges other than the said Chicago College of Dental Surgery, to which four out of five of said board belong, to exist and be recognized as reputable, after complying with all the provisions of the law of the State and the rules established by the said State board, and also the right of the whole State to have the said State Board of Dental Examiners perform their duty and issue license to applicants who come within the law and the rules established' by said board, without arbitrarily, unlawfully and maliciously referring the rights of citizens to irresponsible, self-constituted associations outside of the State, and unknown to any of the provisions of our laws.
    Wherefore, being without other adequate legal remedy, relator makes the said Illinois State Board of Dental Examiners, and each member thereof, to-wit, G. Y. Black, A. W. Harlan, Homer Judd, 0. A. Kitchen and George H. Cushing, parties defendant to this petition, and prays for the People’s writ of mandamus, directed to said board and each member thereof, ■commanding them to forthwith receive from relator the fee of one dollar, which is hereby tendered as required by law, and upon proof of the diploma of relator being presented to the said board, to issue to relator a license, in the usual form, to practice dentistry and dental surgery in the State of Illinois.
    John M. Cooper.
    Subscribed and sworn to.
    A general demurrer was filed to this petition by the respondent. The circuit court overruled the demurrer and, respondent electing to stand by the demurrer, judgment was rendered in accordance with the prayer of the petition. The Appellate Court affirmed the judgment of the circuit court. The case is brought here by appeal from the Appellate Court.
    Mr. George Hunt, Attorney General, and Mr. Sidney 0. Eastman, for the appellant:
    The demurrer only admits the facts well pleaded. The petition does not show that the board decided the college to be reputable, but whether it was right or wrong in deciding it was not reputable, it exercised a power which the courts can not usurp.
    When a duty is not specific, but general, depending on judgment or discretion, mandamus does not lie to compel its performance. St.Clair County v. People, 85 Ill. 398; People v. Dental Examiners, 110 id. 180; Judges v. People, 18 Wend. 92; People v. Common Council, 78 N. Y. 33.

      The old strictness of the pleading required in mandamus has not been changed. High, 464.
    It is a strictness of allegation which must be of the certainty which is classed as that of the second degree, viz., the certain intent in general. 1 Chitty’s Pl. 234.
    The fact should be stated so distinctly and clearly that the respondent may either admit or deny them, so that issue may be found on the facts alleged, as the foundation for relator’s claim to relief. High, 460. ■
    The petition must show, on its face, a clear right to the relief demanded by the relator. Petitioner must distinctly set forth all the material facts on which he relies, so that the same may be admitted or denied. If the right is doubtful, it will be refused. People v. Davis, 93 Ill. 133; People v. Mayor of Chicago, 51 id. 17; People v. Railroad Co. 55 id. 110; City of Ottawa v. People, 48 id. 223; Canal Trustees v. People, 12 id. 254; People v. Klokke, 92 id. 138.
    Petitioner must show he has a clear legal right, and that the denial of the right affects his pecuniary interest. People v. Masonic Association, 98 Ill. 636; Zanone v. Mound City, 103 id. 553.
    Mr. John M. Hamilton, for the appellees:
    It was decided in People v. Dental Examiners, 110 Ill. 180, that the statute vests the State board with a discretion to determine what dental colleges are “reputable,” within the meaning of the law, which can not be controlled by mandamus. We ask for the writ in this case on other grounds, as follows:
    The board may exercise its discretion in any reasonable manner it may see fit, and in this case it did exercise its discretion by the adoption of a general rule as to what dental colleges would be recognized as reputable, and the board must treat aU colleges alike which comply with that rule, and must issue license to their graduates when application is made according to law.

      The hoard can not arbitrarily refuse to license graduates who come from colleges that have fully complied with the rule laid down by the board.
    The court will not grant the writ where a matter is left to the discretion of an individual or body of men, which discretion has been exercised in accordance with reasonable rules or practice, and no ground appears that it has been done wrongfully. It must, however, be clearly understood, that although there may be discretionary power, yet if it be exercised -with manifest injustice, the court is not precluded from commanding its due exercise, the jurisdiction, under such circumstances, being clearly established. Tapping on Mandamus, 66; Arberry v. Beavers, 6 Texas, 457.
    The discretion vested can not be exercised arbitrarily, for the gratification of feelings of malevolence, or for the attainment of merely personal and selfish ends. It must be exercised for the public good, and should be controlled by judgment, and not by passion or prejudice. When a discretion is abused and made to work injustice, it is admissible that it shall be controlled by mandamus. Village of Glencoe v. People, 78 Ill. 389.
    Abuse of discretion, even in courts, will be controlled by mandamus. Moses on Mandamus, 55, 56.
    Courts will not interfere with the exercise of a discretionary power, unless it appears that such discretion has been abused. Wood on Mandamus, 64. See, also, to the same effect, People ex rel. v. Perry, 13 Barb. 206.
    The defendants, composing the State Board of Dental Examiners, refused to perform the duties of their office imposed by law, and attempted to evade the same when the relator applied for license, and it should therefore be compelled by mandamus to perform its duty.
    If the petition contains irrelevant or argumentative matter, that can only be reached by special demurrer, in which the defects must be minutely set forth. People ex rel. v. Holden, 91 Ill. 451.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a petition for mandamus, in which the relator prays that the Illinois State Board of Dental Examiners may be ■commanded to issue to him a license to practice dentistry and dental surgery in the State of Illinois.

The statute, under which the petition is filed, and which defines the powers and prescribes the duties of the State Board of Dental Examiners, is “An act to insure the better education •of practitioners of dental surgery and to regulate the practice •of dentistry in the State of Illinois,” approved May 30,1881, in force July 1, 1881. (Hurd’s Rev. Stat. 1885, chap. 91, p. 816.) The sixth section of this act is as follows: “Any and all persons, who shall so desire, may appear before said board at any of its regular meetings and be examined with reference to their knowledge and skill in dental surgery, and if the examination of any such person or persons shall prove •satisfactory to said board, the board of examiners shall issue ~to such persons as they shall find from such examination to possess the requisite qualifications, a license to practice dentistry in accordance with the provisions of this act. But said board shall, at all times, issue a license to any regular graduate of any reputable dental college without examination, upon the payment by such graduate, to the said board, of a iee of one dollar. All licenses issued by said board shall be signed by the members thereof, and be attested by its president and secretary; and such license shall b e prima facie evidence of the right of the holder to practice dentistry in the ■State of Hlinois.” The first section of the act provides, “that it shall be unlawful for any person, who is not at the time of the passage of this act engaged in the practice of dentistry in this State, to commence such practice, unless such person shall have received a diploma from the faculty of some reputable dental college duly authorized by the laws of this State, ■or of some other of the United States, or by the laws of some foreign country, in which college or colleges there was at the time of the issue of such diploma, annually delivered a full ■course of lectures and instruction in dental surgery,” etc.

In The People ex rel. Sheppard v. State Board of Dental Examiners, 110 Ill. 180, we held that the act did not specifically define what was a reputable college, and that it was left to the discretion and judgment of the board to determine what was a reputable college. In that case the mandamus was refused •on the general ground, that the writ will not lie to compel the performance of acts or duties, which necessarily call for the exercise of judgment and discretion on the part of the officer 'Or body at whose hands their performance is required.

But if a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due •exercise. They will interfere, where it is clearly shown, that the discretion is abused. Such abuse of discretion will be •controlled by mandamus. A public officer or inferior tribunal may be guilty of so gross an abuse of discretion or such an evasion of positive duty, as to amount to a virtual refusal to perform the duty enjoined, or to act at all in contemplation •of law; in such a ease mandamus will afford a remedy. Tapping on Mandamus, 66 and 19; Wood on Mandamus, 64; Com’rs of the Poor v. Lynah, 2 McCord, (S. G.) 170; The People v. Perry, 13 Barb. 206; Arberry v. Beavers, 6 Texas, 457.

In Village of Glencoe v. The People, 78 Ill. 382, we said: “The discretion vested in the council can not be exercised arbitrarily for the gratification of feelings of malevolence, or for the attainment of merely personal and selfish ends. It must be exercised for the public good, and should be controlled by judgment and not by passion or prejudice. When a discretion is abused and made to work injustice, it is admissible that it .shall be controlled by mandamus.”

In the present case the demurrer admits all the allegations •of the petition to be true. It will be necessary to examine those allegations to see if they show any abuse of discretion on the part of the hoard, or any unjust exercise of the discretionary power vested in it.

The petition alleges, that the relator complied with the requirements of the statute and with the rule of the board, adopted in September, 1884. That rule is as follows:

“Resolved, that after June, 1885, the Illinois State Board, of Dental Examiners will recognize as reputable only such, dental colleges as require, as a requisite for graduation, attendance upon two full, regular courses of lectures and practical instruction, which courses shall each be of not less than five months duration, and shall be held in separate years, with practical instruction intervening between the courses. Such colleges must also require a preliminary examination before admitting students to matriculation, provided that no certificate from a high or normal school, or other literary institution, is presented by the candidate.”

On November 4,1884, the relator matriculated as a student in the Chicago College of Dental Surgery, with which four of the five members of the appellant board are alleged to be connected as instructors or members of the faculty, and pursued his studies there during a period of not less than five months, in 1884 and 1885. During the summer and fall of 1885 he received practical instruction in dentistry and dental surgery.

On November 2, 1885, he matriculated as a student in the-Northwestern College of Dental Surgery, which gives such lectures and instructions as are required by the above rule, and attended therein as a student during one course of instruction of not less than five months in the years 1885 and. 1886. A diploma was issued to him by the last named college on April 3,1886. On May 11, 1886, he presented this diploma to the State Board of Dental Examiners, at a regular meeting thereof, and tendered his fee of one dollar, and demanded a-license. The board has refused to issue the license.

The petition avers, that the board so refused to give him a license through malice, because he left the Chicago college, in which four members of the board are interested, and graduated at the Northwestern college. It also avers, that the two colleges are rivals for the patronage of students, that the board is under the control of the Chicago college and determined to break down the Northwestern college, and that the refusal to issue the license springs from a determination to protect their own college from competition.

If these averments are trué, the members of the State board are abusing their discretion and making an unjust use of it. They have a right to decide whether the college, at which an applicant for license has graduated, is reputable or not. But they must decide that question upon just and fair principles. The discretion, with which they are vested, was conferred upon them in the interest of the public and to protect the people from unskillful and uneducated practitioners of dentistry. If four of the five members, which compose the board, are instructors in a particular college, and if they are making use of their power under the State law to build up their own institution and crush outfits rival, they are acting from motives of self-interest and not in the interests of the public. It can not be tolerated that licenses should be withheld for any such ■unworthy reasons. Inasmuch as the board has elected to stand by the overruled demurrer to the petition, we are bound to assume, that the statements of the petition are true.

Again, the relator says in his petition, that, after his application on May 11, 1886, he wrote»on May 25 to the secretary of the board and inquired why a license was not issued to him. On May 26, the secretary wrote in reply, returning the one dollar, and saying: “The matter of issuing a license on your diploma from the Northwestern College of Dental Surgery was referred to the National Association of Dental Examiners, which will meet in August. Until their decision I can not issue any license.” It appears that the association here referred to is composed, for the most part, of men living outside of this State, and that its meeting “in August” was to take place in the State of New York.

When a regular graduate of a dental college applies to the board of examiners for a license, the only question for them to determine is whether the college, at which the applicant graduated, is reputable or not. The law clothes them, and no other body, with the power to decide this question. They can not delegate their discretionary power to an organization beyond the limits of the State. By the letter of the secretary the board declined to perform the duty imposed upon it by the Illinois statute, and announced its intention of referring the question of issuing a license to a foreign association.

After this. announcement, upon being threatened with a mcmdamus proceeding, the board, in an official communication signed by its secretafy, promised the relator’s attorney that, if he would.wait a reasonable time, it would call a meeting and would issue to the relator the license which he demanded. The meeting was held on June 25, 1886, but the license was refused. When the board promised to issue a license, it must have been of the opinion that the relator was entitled to it, and they could not have considered him entitled to it unless they regarded the college at which he had graduated as reputable.

It is claimed by counsel for appellee that the board, by adopting the above rule, has exercised its discretion in determining what is a reputable dental college; that any college, which insists upon such requisites for graduation as the rule prescribes, must be recognized by the board as a reputable college, and that, as the Northwestern college has brought itself within the requirements of the rule, the board has no discretion about admitting its graduates. On the other hand, counsel for appellant insists, that, while no colleges, which fail to comply with the rule, will-be regarded as reputable, yet the board would have a right to demand other requisites than those specified in the rule before deciding a college to be reputable.

We are not prepared to hold, that a dental college, which requires a preliminary examination before admitting students to matriculation, and which requires students before gradúa-. tion to attend upon two full regular courses of lectures and practical instructions, each to be of not less than five months’ duration and to be held in separate years with practical instructions intervening between the courses, may not in other respects lack some of the elements, which make such an institution reputable. “Reputable,” according to Webster’s definition, means “worthy of repute or distinction,” “held in esteem,” “honorable,” “praiseworthy.” A college might have examinations and lectures and instructions of such an inferior character and under the direction of such inferior instructors, that it would be unworthy of praise and undeserving of esteem..

But the petition in this case alleges that the Northwestern college has been recognized by the board of examiners as a reputable dental college and was so recognized when the relator' presented his diploma.

As the board did not refuse to grant the license on the ground that the Northwestern college was not reputable, but refused’ such license on other grounds as stated in, the petition, it will' be presumed that the members regarded that college as repu- ■ table. They had no discretion as to any other matter than the character of the college issuing the diploma, as to its being reputable or not reputable. When that matter was decided and out of the way, their judicial or discretionary power was exhausted. The duty to issue the license was then a mere ministerial one, and its performance could be enforced by mandamus.

We think that the allegations of the petition, considered as a whole, warranted the issuance of the writ of mandamus.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The People, for the use of Stanley B. Sexton, v. Jane A. Brooks.

      Filed at Ottawa November 11, 1887.

      1. Descents—personal property subject to payment of debts. Our Statute of Descents, providing that personal as well as real estate shall descend to the heir of a deceased person, does not prevent the administrator from taking title to the personal property in trust for the payment of the debts of the intestate, and its language does not contemplate that it shall descend to, or be distributed among, the heirs-at-law until all just claims and debts are paid. Only the residue belongs to the heir.
    2. Heirs and devisees—liability for debts of ancestor. The entire question of the liability of heirs and devisees for the debts of ancestors and devisors is covered by our statute, and to the extent it enlarges the common law liability it is enlarged, but no further.
    3. Heirs are not, in general, liable for the debts of their ancestor, when the latter leaves personal estate sufficient to discharge all just demands against his estate. The statute makes the heir liable for his ancestor’s debts only in respect to the real estate which may descend to him, and when the heir takes only personal estate, and administration has been had on the estate, he is not liable to an action by a creditor of his ancestor.
    4. Same—former decision. The case of Dugger et al. v. Oglesby, 99 HI. 405, is not to be construed as holding that there may be a recovery against the heir-at-law for the ancestor’s debt,, on account of personal property received by him from the ancestor’s estate.
    Appeal from the Appellate Court for the Fust District;—. heard in that court on appeal from the Circuit Court of Cook county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Swett, G-bosscup & Swett, for the appellant:
    The circuit court erred in holding that the plaintiff’s right of action was barred by subdivision 7, section 70, of the Administration act. Dugger v. Oglesby, 99 Ill. 405; Payson v. Hadduck, 8 Biss. 293; Hall v. Martin, 46 N. H. 337.

      Mi1. William H. Swift, and Messrs. C. H. & C. B. Wood, "for the appellee:
    By sections 12 to 14, of chapter 59, of the Revised Statutes, title, “Frauds and Perjuries,” heirs are made hable for the •debts of the ancestor to the full amount of lands, tenements, hereditaments, or any rents or profits out of the same, that have descended to them. (Bonnell v. Holt, 89 Ill. 72.) But they are not hable where such ancestor leaves personal estate sufficient to discharge ah just demands. Guy v. Gericks, 85 Ill. 428; Hoffman v. Wilding, id. 453; Ryan v. Jones, 15 id. 1.
    To charge an heir, it must appear either that real estate ■descended, and that there was no personal estate, or that the latter was insufficient to pay debts of the ancestor. Laughlin v. Heer, 89 Ill. 122; Homer’s Prob. Law, secs. 217-223.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an action of debt on a guardian’s bond, against the heir-at-law of one of the sureties. By stipulation of the parties ah defences were admissible under the pleas pleaded.

We deem it necessary to consider but one of the questions •discussed in the printed arguments before us, since, agreeing, .as we do, with the Appellate Court on that question, it necessarily follows that the judgment must be affirmed.

The evidence shows that the bond in suit was signed* on the 3d day of January, A. D. 1873. The Appellate Court, in addition to holding as we do upon the question hereafter considered, held that it was never delivered; but we shall not go into that question. The defendant’s intestate died on the 28th day of June, A. D. 1873, and final settlement was made of his •estate on the 24th day of November, A. D. 1875. The ward became of age on the 25th day of August, A. D. 1874. No •claim was ever filed in the probate court in favor of the ward, •or on account of the liability of the intestate as surety on the .guardian’s bond, against the intestate’s estate. The intestate died seized of no real estate, and necessarily none descended to the heir-at-law. On final settlement, $300,000 of personal, property were found to be in the hands of the administrator, and were ordered to be paid over to the defendant. This suit was not commenced until the 22d day of May, A. D. 1882,— three days, only, less than six years and a half after the final settlement of the intestate’s estate.

By the common law, the entire personal estate went to the administrator, and upon him was then devolved the duty of paying the debts, according to their priority; and the only-remedy for the payment of debts, because of the personal estate, was against the administrator, the heir, as such, merely, never being liable therefor, because of personal property derived by him from the estate. The real estate was not liable: for the payment of the debts, generally, of the intestate. It. descended to the heir directly, and he took it free of any claim, of general creditors; but the ancestor might, by a specialty,, bind the heir to the payment of a debt by expressly so declaring in the deed, and the heir was then bound to the extent of assets descended,—i. e., to the extent of the value of the real estate coming from the ancestor to the heir by inheritance, for the word “assets,” in this connection, always meant real estate. 1 Wheaton’s Selwyn’s Nisi Prius, 440; Rawle on Covenants, (2d ed.) 579; 2 Williams on Executors, (3d Am. ed.) 1271, 1436; Sheppard’s Touchstone, 363; Williams on Personal Property, (3d Am. ed.) 183, *101; 4 Bacon’s Abridgment, 617. But if the land was devised, the creditor had no remedy against-the devisee. (Wheaton’s Selwyn’s Nisi Prius, and Williams, on Executors, ubi swpra.) And if the heir had bona fide aliened the lands which-he had by descent, before an action was commenced against him, he might discharge himself by pleading that he had nothing by descent at the time of suing out the-writ or filing the bill, and the obligee had no remedy at law. (Seargeant Williams’ notes to Jefferson v. Morton et al. 2 Saunders, 7; 2 Atkyns, 204; 1 Comyns’ Digest, 679, note f; Ryan v. Jones, 15 Ill. 1.) The remedy was enlarged in England by statutes of the 3d of W. & M. c. 14, and of 11 Geo. IV, and 1 Wm. IV, c. 47. See 2 Williams on Executors, (3d Am. ed.) 1436, *1437. These statutes, however, have never been in force here, but we have had, instead, legislation of a kindred character, to which we shall hereafter refer.

The point is made, that because, by our statute in relation to descents, personal as well as real estate is made to descend to the heir-at-law, all distinction between real and personal estate, so far as affects the present question, is obliterated, and that the common law action should therefore be held folie in this case. But this assumes that the liability at common law was simply because of inheritance, whereas we have seen it was because of the right recognized by the common law in the ancestor to charge his real estate, as against the heir-at-law, with the payment of a particular debt by executing a particular instrument,—namely, a specialty purporting to bind the hem. It was assumed, that so far as there was personal property for the payment of debts, it would be applied by the administrator to that purpose. Our Statute of Descents has been substantially as it now is, since the organization of the State government, but it has never been thought to prevent administrators taking title in trust to the personal property; and its language does not contemplate that it shall descend to, or be distributed to, the heirs-at-law, until after all just-claims and debts are paid. (See sec. 1, chap. 39, Rev. Stat. 1874.) And so we have held that an administrator has the legal title to the personal estate of the intestate, as a trustee, for the payment of debts, but when the debts are paid the residue belongs to the heir-at-law. Lewis v. Lyons et al. 13 Ill. 117; Makepeace v. Moore, 5 Gilm. 474; Thornton et al. v. Mehring, 117 Ill. 55; Leamon et al. v. McCubbin et al. 82 id. 263.

But we have held, that “on intestacy the title to real estate is thrown, eo instanti, by operation of law, on the heir-at-law, and no other person is seized thereof for any purpose, or authorized to exercise any act of ownership over it, save in the case of a guardian over the estate of his wards.” (Stone et al. v. Wood, 16 Ill. 177; Hopkins et al. v. McCann, 19 id. 113.) So it would seem, the reason why, at common law, an heir could be charged in respect of real estate descending to him, but not in respect of personal property, is not affected by the statute. The title to personal property under it is as completely in the administrator, until all debts probated within the time limited for that purpose by the statute are paid, as it was at common law. And we have, accordingly, held that heirs are not, in general, liable for the debts of their ancestor, where the latter leaves personal estate sufficient to discharge all just demands against his estate. Guy, Admr. v. Gericks, 85 Ill. 428; Hoffman et al. v. Wilding, 85 id. 453; Laughlin v. Heer et al. 89 id. 119.

Moreover, it is enacted by chapter 59 of the Revised Statutes of 1874, in section 11, that “any person, his heirs, devisees, executors, administrators, successors or assigns, and every of them, who shall or may have any debts, suits or demands * * * against any person who shall die intestate and leave real estate to his heirs, to descend according to the laws of this State, may have and maintain the same actions which lie against executors and administrators, upon his bonds, specialties, contracts and agreements, against the executors or administrators and the heirs, or against the executors or administrators and the devisees, or may join the executors or administrators, the heir or heirs;” in section 12, that “when any lands, tenements or hereditaments, or any rents or profits out of the same, shall descend to any heir, or be devised to any devisee, and the personal estate of the ancestor- of such heir, or devisor of such devisee, shall be insufficient to discharge the just demands against such ancestor’s or devisor’s estate, such heir or devisee shall be liable to the creditor of the ancestor or devisor to the full amount of the lands, tenements or hereditaments, or rents and profits out of the same, as may descend or be devised to the said heir or devisee; and in all cases where any heir or devisee shall be liable to pay the debts of his ancestor or devisor in regard to any lands, tenements or hereditaments, or any rents or profits arising out of the same, descending or being devised to him, and shall sell, alien or make over the same before any action brought or process sued out against him, such heir-at-law or devisee shall be answerable for such debts to the value of the said lands, tenements and hereditaments, rents or profits, so by him aliened or made over;” in section 14, that “in all cases where a judgment has been obtained against the executor or administrator of a deceased person, on a contract or undertaking on which a joint action might have been maintained against the executor or administrator and the heir or devisee of the deceased person, if it shall appear by a judgment of record or the return of a proper officer that there is not property of the deceased person in the hands oP the executor or administrator to satisfy such judgment, it shall be lawful to bring a separate suit or action against the heir or devisee on such contract or undertaking;” and in section 15, that “if no person shall administer on the goods and chattels of a deceased person for the space of one year after his death, a separate suit or action may be maintained against the heirs or devisees on all the contracts and undertakings of such person.”

Thus the entire question of the liability of heirs and devisees for the debts of ancestors and devisors is covered by these sections, and, by a familiar rule of construction, to the extent they enlarge the common law liability it is enlarged, but no further. It is clear the present case falls within neither section.

In Branger et al. v. Lucy, 82 Ill. 91, which was a ease, like the present, to charge the heir-at-law, we said: “As the heirs had not sold or aliened any part of the land, nor received any rents or profits therefrom, it was erroneous to render a personal judgment against the heirs. No other judgment could have been rendered against them than one to be satisfied only out of the real estate which descended from their ancestor, Christian Branger.”

But counsel contend that in Dugger et al. v. Oglesby, 99 Ill. 405, we held that there could be a recovery against the heir-at-law on account of personal property received by him from the ancestor’s estate. There was no ruling to that effect. The judgment was reversed upon an entirely different ground. That suit, moreover, was against the administrator and the heirs-at-law. It was, among other things, objected that the claim was not filed against the estate within two years after the grant of letters of administration; but it was held, that inasmuch as the cause of action did not accrue until after the expiration of more than two years from the date of the grant of letters of administration, it was not barred by the statute. It was then also objected that the judgment was personal; and to this it was answered, that it did not appear to be true, for, the judgment order finds how much personal property and real estate came to and descended to each one of the heirs. No distinction between real and personal estate, it is true, was pointed out, but there was no ruling upon that question,—the reversal, as before observed, being placed upon another ground.

Hall v. Martin, 46 N. H. 337, is cited as in opposition to the view-here expressed. In that case, however, there does not seem to have been any statute, as there is here, regulating the common law remedy, and the decision can not, therefore, be pertinent.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Henry A. Treadwell v. John McEwen et al.

      Filed at Ottawa November 11, 1887.

    1. Fraudulent conveyance—participation in the fraudulent intent by the grantee—evidence thereof. Direct and positive evidence that the grantee of property is guilty of participation in the fraudulent intent of the grantor in making the sale to defraud creditors, is not required in order to avoid the sale. Fraud on the part of the grantee or purchaser may be shown by facts and circumstances from which it may be inferred.
    2. Same—the particular case. A father made a sale of all his personal estate liable to execution, to his son, aged about twenty-three years, and two days afterward conveyed to him his farm of one hundred and forty-nine acres, subject to the homestead right, for the avowed purpose of defrauding his creditors. The son, at the time, had but little money or property, and was single, and resided with his parents on the place, who continued on the same for about a year thereafter. He paid nothing on the personal estate, but was to pay the incumbrances thereon. The father afterward conveyed him the homestead right in the farm, and the son claimed to have paid §250 in wages due him from the father, and $1200 in money, all of which he derived from the use of the property so conveyed to him. He knew of his father’s indebtedness, and that he was divesting himself of all his property: Held, that the facts and circumstances, and the relation and situation of the parties, justified a decree finding that the son received the conveyances knowingly, in aid of the fraudulent purpose of his father.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DeKalb county; the Hon. Isaac Gr. Wilson, Judge, presiding.
    Mr. John A. Bussell, and Messrs. Sherwood & Jones, for the appellant:
    Knowledge on the part of the grantee, of the fraudulent intent and design on the part of the debtor, and his participation in the execution of that intent, are essential to render the transaction fraudulent as to appellant. Rev. Stat. chap. 59, sec. 5; Ewing v. Runkle, 20 Ill. 448; Meyer v. Kinzie, 26 id. 36; Gridley v. Bingham, 51 id. 153; Miller v. Kirby, 74 id. 242; Hatch v. Gordon, 74 id. 414; Matthews v. Gordon, 88 id. 602; Grant v. Bennett, 96 id. 513; Sterling v. Ripley, 3 Pinney, 155; Mehlhop v. Pettibone, 54 Wis. 652.
    More than suspicions are required to prove fraud. The evidence must he clear and cogent, and must leave the mind well satisfied that the charge is true. Shinn v. Shinn, 91 Ill. 477; Hatch v. Gordon, 14: id. 414.
    Eraud is never presumed when the transaction can he reconciled with honesty. Mey v. Gulliman, 105 Ill. 272; Hyde v. Chapman, 33 Wis. 391; Robert v. Morriss, 27 Mich. 305.
    The declarations of the vendor made after the conveyance are not admissible. Munn v. Phillips, 42 Ill. 123; Wheeler v. McCorristen, 24 id. 41; Rust v. Mansfield, 25 id. 336; Meyer v. Kinzie, 26 id. 36; Simpkins v. Rodgers, 15 id. 397; Gridley v. Bingham, 51 id. 54; Jewett v. Cook, 81 id. 260.
    Messrs. Botseord & Wayne, for the' appellees:
    The declarations of the grantor are competent against himself, and were rightfully admitted. Bishop v. Redmond, 83 Ill. 157; Daniels v. McGinnis, 97 Ind. 549; Richl v. Evansville, 104 id. 70.
    It is further claimed by appellant, that there is no sufficient proof in the record of guilty knowledge, on the part of the son, that his father intended to delay or defraud his creditors. A fraudulent intent on the part of the purchaser is not always necessary to be established to defeat the sale, nor is it necessary to prove such intent by direct evidence. It is sufficient if it be shown there was a fraudulent intent, and that he had notice of such facts as would put a man of ordinary prudence upon inquiry, which inquiry, made with ordinary diligence, would have led to a knowledge of the fraudulent purpose or intent of the seller. Zuvers v. Lyons, 40 Iowa, 510; Jones v. Hethington, 45 id. 610.

      The fact that the vendee testified that the conveyance was made, and accepted by him, in good faith and without fraudulent intent, will not always avail the vendee. But the court will look at all the facts and circumstances to determine what the intent of both parties was, as gathered from these. The following are eases directly in point: Bell v. Devore, 96 Ill. 217; Lee v. Swift, 65 id. 330; Phelps v. Curts, 80 id. 109; Mann v. Ruby, 102 id. 348; Fleming v. Hiob, 3 Bradw. 390.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a creditor’s bill, filed in the circuit court of Kane county, by John McEwen and James McEwen, against Samuel McEwen, John M. Treadwell and Henry A. Treadwell, for the purpose of reaching and applying the property of John M. Treadwell to the payment of judgments against him, in favor of the' complainants, which property it was claimed had theretofore been fraudulently transferred by the said John M. to his son, Henry A. Treadwell, to delay and hinder the creditors of the former.

On August 1, 1874, John M. Treadwell became surety for Samuel McEwen on an executor’s bond, in the sum of $6000, given by the latter as executor of the last will and testament of Elizabeth McEwen, deceased. On June 19, 1878, Samuel McEwen, as executor, was ordered by the county court to pay to James McEwen $404.35, and to John McEwen $504.35, as their distributive shares of the estate of Elizabeth McEwen, their mother. The executor failed to comply with the order. On May 3, 1883, in actions on the executor’s bond, John McEwen recovered the sum of $661.62, and James McEwen the sum of $522.42, as damages against the obligors. Executions upon the judgments were returned nulla bona, and thereupon the present bill was filed. On March 10, 1877, John M. Treadwell made a bill of sale of all his personal property that was subject to execution, to Henry A. Treadwell, his son, and on March 12, 1877, the former conveyed to the latter the farm on which he (John M. Treadwell) was living, of about one hundred and forty-nine acres, reserving the homestead right. On August 26, 1879, John M. Treadwell and his wife made a deed of the same' premises to Henry A. Treadwell, including a release of the right of homestead. The circuit court, on final hearing, upon proofs taken, found the conveyance of the real estate was fraudulent as against creditors, and decreed in favor of the complainants. ' On appeal to the Appellate Court for the Second District, the decree was affirmed, and the defendants appealed to this court.

The evidence shows that the conveyance of this real estate by John M. Treadwell to his son, was made to defraud creditors,—that it was made with the specific intent to defeat the collection of this particular liability upon the executor’s bond. He had before made an offer to the complainants of less than one-half the amount of their claims, saying they had better take it,—that if they did not, they would be sorry; that he was going to fix himself, and put everything out of his hands. And this he did, by the above transfers to his son. But it is ■said that it is not enough to show fraud on the part of the grantor,—that to avoid the conveyance to the grantee he also must be guilty of fraud, and that there is no evidence of the grantee’s participation in the fraud. There is no direct and positive evidence of it, but such evidence is not required. Fraud may be shown by facts and circumstances from which it may be inferred; and the inquiry is to be, whether the circumstances in this case are sufficient to warrant the inference that Henry A. Treadwell was privy to the fraudulent purpose of his father.

Henry A. Treadwell, at the time of the conveyance, March 12, 1877, was unmarried, about twenty-three years of age, and was living with his parents on the place, and the parents continued afterwards to reside there until in February, 1878, when Henry A. got married. By this conveyance of real estate, and the bill of sale of .personal property made two days before, the father divested himself of all his property subject to execution, and placed it in the hands of his son. The farm was a valuable one, situated two miles north-west of Elgin, in Kane •county, and having on it a brick dwelling house, which cost from $3500 to $4000. All the means the son then had, according to his own statement, was a few hundred dollars and •a pair of horses. The consideration of the sale of the personal property was the assumption of the incumbrance upon it, as is stated. The consideration for the conveyance of the land is indefinite and not entirely satisfactory, as stated by Henry A. Treadwell. He says he thinks he was to give about $8600 for it, or something of that kind; that he assumed two mortgages that were on the farm, one of $2000 and one of $4000, .and over one year’s back interest, at ten per cent, the taxes then due, over $60, $250 his father owed him for wages, and ■that he paid his father $1200 afterward. With the exception, perhaps, of that $250, he does not appear to have paid anything more than what was made off from the place. He •states, himself, that he does not know of any money that he got that spring, or that he has had since, that he did not get -off the farm in some way or shape. He knew of his father’s large indebtedness, that by the conveyances to him John M. Treadwell divested himself of all his property, and was left without any means to pay his debts. John M. Treadwell made the conveyances with the actual and before declared purpose of putting his property out of his hands, so that it could not be reached by his creditors. The son was all the while a member of the father’s household.

From the relation and situation of the parties, and all the •surrounding circumstances, we can not say that the inference was unwarrantable that the son received the conveyances knowingly, in aid of the fraudulent purpose of his father.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Francis Longwith v. Milton W. Riggs et al.

      Filed at Springfield November 8, 1887.

    1. Appeal—as to the amount involved—decree disposing of a trust fund. Where the trial court, by its decree, disposes of the entire fund in the-hands of a trustee, exceeding in amount $1000, and an appeal is taken to-the Appellate Court questioning the application of a part of the fund, which is less than $1000, and the decree is affirmed, and the case is brought to-this court by appeal or writ of error, this court will have jurisdiction. The whole amount disposed of by the decree will determine the jurisdiction of tUs C0UrL
    2. Will—:jurisdiction in chancery to give construction to wills. Thejurisdietion of a court of equity to construe wills is an incident of its general jurisdiction over trusts. And where a testator, by his will, invokes the equitable jurisdiction of the court in relation to a trust fund, and such fund is reduced to possession by the trustee, under the direction of the court, this will also confer, incidentally, jurisdiction to construe the will creating the trust.
    3. Same—bequest in trust, limitedo to use of the interest on the fund— encroaching on the principal for support of cestui que trust. If a testator, by will, gives a share of his estate to a trustee for the use of one of several children, the fund itself may be used by the trustee, under the direction of the court, for the support and maintenance of such child, even though the will contains no direction for maintenance, and although there may be a direction to accumulate income. The general rule is, that the trustee, on his own authority, can not break in upon the principal of the trust fund for maintenance.
    4. Where a testator devises funds to a trustee, in trust, to be loaned, and the income to be applied to a child’s support during its life, and at its death the same be paid over to the other children of the testator, if there is a clear intention, to be gathered from the whole will, that such child is to-have a maintenance, the court may order the trustee to make use of the principal when the income is insufficient, notwithstanding the limitation over-.
    5. A testator, by will, devised his entire estate to executors, to be sold,, one-third to be loaned out, and the interest paid to his widow, and the residue. after the payment of some legacies, was bequeathed to his four children, share and share alike; but the share to one, a feeble-minded daughter, was made in trust for her, she to take only the interest during her life. The-testator requested the circuit court to appoint a trustee for such child, “to-take charge of and manage the bequest made to her, ” “to loan out the fund” and “apply the annual income therefrom, to such child’s support,” and provided that on her death the estate bequeathed to her be equally divided, share and share alike, among the other three children. The income proving insufficient to support the feeble-minded daughter, the trustee, by the direction and approval of the Court, trenched, to some extent, upon the principal, and on her death the court directed the trustee to pay her physician’s bill, and the expenses of caring for her during sickness, and her funeral expenses: Held, that there was no error in the action of the court.
    Wbit of Ebbob to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Scott county; the Hon. Cybus Epler, Judge, presiding.
    By the will of Thomas Longwith his estate was devised to executors to be sold,—one-third of the estate to be loaned out and the interest paid to the widow, special legacies to grandchildren named, and the residue was bequeathed to “my four children, Francis, Huida, Julia and Lavina, share and share alike.” The bequest to Lavina, aforesaid, however, is made in trust, she to take only the interest during her natural life, and requests the circuit court to appoint a trustee “to takq charge of and manage the bequest made” to Lavina, “to loan out the fund” and “apply the annual income therefrom to the said Lavina’s support,” trustee to give bond, etc.; that on the widow’s death, the one-third of the estate till then on interest for her benefit, was bequeathed “equally, share and share alike, between and among my said four children, Francis, Huida, Julia and Lavina, or if said Lavina has departed this life, then among the other three, to-wit, Francis, Huida and Juliathat at the death of Lavina “the estate herein bequeathed to her shall be divided equally, share and share alike, among my three children, Francis, Huida and Julia.” The widow renounced the provision made for her in the will, and elected to take under the statute.
    Shortly after the death of the testator, his three children, Francis, Huida and Julia, exhibited their bill in the circuit court, against Julia Longwith, widow, and Lavina Longwith, and therewith a copy of the will. The bill alleged the renunciation of the widow, and that Lavina was a feeble-minded person, and prayed assignment of dower to the widow, and the appointment of a trustee to take charge of the portion provided for said Lavina in said will. Such proceedings were had under this bill as that dower was assigned to the widow, and Milton W. Eiggs was appointed “trustee of all the shares of said estate which have or may come to said Lavina under the provisions of said will,” under a bond of $4000, and with a direction to the trustee to report to the court, from time to time, his actings as such trustee.
    Lavina’s share of the estate coming to the hands of the trustee, was $2607.43; and during her lifetime, and covering a period of nearly seven years, the trustee expended in the support of Lavina, and for taxes and commissions, not only all the interest arising from the fund, but $392.93 of the principal.
    The final report of the trustee, presented to the court after the death of Lavina; showed in his hands $2214.50 undisposed of. But the report also showed that in the last sickness of Lavina an indebtedness of $103.50 had been incurred for medical attendance and medicines, and that Julia Longwith, a sister of Lavina, claimed a balance due her on account of Lavina, the amount of which was not stated, and that one year’s taxes had not been paid; and the trustee asked-that the several claimants come into court and prove up their claims, etc.
    Evidence was heard in respect of these claims. The bill alleged, and the evidence abundantly showed, that Lavina was a feeble-minded person. Some four years prior to her death, the sister Julia moved to Missouri, and with the consent of the trustee took Lavina with her, and from thence kept and took care of her until Lavina’s death. Her personal habits were such as are usually observed in idiotic and feeble-minded persons, and she was afflicted with a discharge from her ear, offensive to those in her presence, and rendering necessary a daily change in her bedding. Plaintiff in error, although living in the vicinity, and the sister Huida, neither gave to the care of their unfortunate sister personal attention nor material assistance, and the whole burden of her care and maintenance, save such as the trustee could afford, fell upon the sister Julia, and -for this she claimed $250 a year, for four years and nine months, and- also for the money expended by her for medical attendance and funeral expenses.
    In the final decree, the court approved the trustee’s report, with the consent of all the parties in interest, and found that Lavina Longwith was the beneficiary of the trust fund to the extent of the income thereof; that by the will, such fund, on the death of Lavina, should be equally divided between Francis, Huida and Julia, (and who were the only persons interested therein,) after the payment of such proper unpaid expenses as ought to be charged against it. The decree then allowed the physician’s bill of $65.50; allowed Julia Longwith, for doctor’s bill and funeral expenses paid by her, $98.65, and for the boarding, care and nursing of Lavina, at the rate of $250 a year, $1187.50, (less $400.98 paid her by the trustee,) equaling $786.50, making the total allowance to Julia $885.15; and after finding that Lavina left no estate out of which the claims could be paid, that she was feeble-minded, and unable to support or care for herself, and that the mother was not a proper person to have her care, and was without means to support her and pay her funeral expenses, decreed the payment of the claims allowed, out of the trust fund, and the distribution of what remained, equally between Francis, Huida and Julia. Francis Longwith appealed, and the Appellate Court .affirmed the decree of the circuit court, and the record is brought here by writ of error.
    The error assigned, which was considered by the court, questioned so much of the decree as ordered the trustee to pay Julia Longwith for the care and board of the cestui que trust from the principal of the fund in his hands.

      Mr. William W. Berry, for the plaintiff in error:
    The court erred in the admission of testimony to show that Lavina Longwith was unable to take care of herself, and the amounts due'to Julia and others for care and attention bestowed upon her. Unless Lavina resorted to the fund itself, over and above the income thereon, this testimony was, wholly immaterial.
    If the trust fund itself did not belong to Lavina, then the testimony of some of the witnesses in their favor was incompetent.
    The court erred in ordering the trustee to pay the indebtedness of Lavina from the fund itself in his hands after the income had all been expended. The court had no power to interfere with a fund established, under the circumstances, limitations and restrictions of the one under consideration, and divert it to a purpose foreign to that intended by its founder.
    Messrs. Eiggs & Devine, for the defendants in error:
    The amount in controversy was $951.65,—the sum allowed by the circuit court against the fund,—and therefore this court has no jurisdiction. Railway Co. v. Knox, 110 U. S. 304; Jenness v. National Bank, id. 52; Tuitsman v. National Bank, 100 id. 6; Elgin v. Marshall, 106 id. 578; Walker v. Malin, 94 Ill. 596; Piper v. Jacobson, 98 id. 389; Akin v. Cassiday, 105 id. 22.
   Mr. Justice Shope

delivered the opinion of the Court:

Defendants in error, in argument, question the jurisdiction of this court, and contend that the amount in controversy here is less than $1000; that although the fund in the hands of the trustee was $2214.50, plaintiff in error only questions the application, at most, of $951.67 of such fund. The decree of the circuit court disposed of the whole of the fund in the trustee’s hands, and the appeal to the Appellate Court brought before that court for review such decree, and when the Appellate Court affirmed the decree, and the judgment of affirmance is brought here by writ of error, the amount involved here in •controversy is the amount in the trustee’s hands subject to disposition under the decree. The amount disposed of by the decree exceeding $1000, the jurisdiction of this court is ample.

The question here presented involves, first, the jurisdiction •of a court of chancery, in case of trust, to construe the will •creating the trust; and second, the power of such court, in case of express trust, to break in upon the principal of the fund for the maintenance of the cestui que trust.

And first—The equitable jurisdiction to construe wills is an incident of the general jurisdiction over trusts. (Pomeroy’s Eq. sec. 1156.) It is by reason of the jurisdiction of courts of chancery over trusts, that courts having equitable powers, ■as an incident to that jurisdiction, take cognizance and pass upon the interpretation of wills. (Chipman v. Montgomery, 63 N. Y. 221.) It is when the court is moved on behalf of an executor, trustee or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts. Bailey v. Briggs, 56 N. Y. 407. See Strubher v. Belsey, 79 Ill. 307; Whitman v. Fisher, 74 id. 147; Pomeroy’s Eq. secs. 351, 352.

But aside from this general doctrine, within which the case ■at bar clearly falls, the equitable jurisdiction of the court was •expressly invoked by the terms of the will itself, so that, upon the filing of the bill, with the will exhibited, the appointment, by the court, of a trustee, the giving of the bond, and reducing of the trust fund to possession, under the direction of the court, by the trustee, and his subsequent reports to the court, the court acquired ample jurisdiction of the persons and the subject matter,—the cestui que trust becoming the ward of the court,—and, incidentally, jurisdiction to construe the will creating the trust.

Secondly—The principles of law governing this case, hyanalogy, are those applicable to infants. Although the beneficiary was, no doubt, above the age of eighteen years, she was,, by reason of her feeble-minded condition, to all intents an infant. The father, during his lifetime,- was liable for her support, and if, by his will, he gave this share of his estate to her absolutely, although under the protection of a trust, there-can be no question but that the fund itself might be used,, under the direction of the court, for her maintenance and support ; and -this would be so, although the will contained no-direction for maintenance, and although there was a direction to accumulate income. (Perry on Trusts, sec. 615.) The-general rule undoubtedly is, that the trustee, on his own authority, can not break in upon the capital of the trust fund for maintenance,—and this rule is for the benefit of the infant» But that the court, in a proper ease, possesses such power, is clearly shown by the authorities. Perry on Trusts, secs. 616-618, and cases cited. See, also, Ex parte Hayes, 3 DeG. & S. 485; Walsh v. Walsh, 1 Drewry’s Ch. 64.

The same principle has been applied by this court in the case-of a married woman. In Curtiss v. Brown, 29 Ill. 201, it was said: “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required ; and in such cases the court must, as far as may be,, occupy the place of the party creating the trust, and do with-the fund what he would have dictated had he anticipated the emergency. In Harvey v. Harvey, 2 P. Wms. 21, the court said it ‘would do what, in common presumption,-the father, if living, would,—nay, ought,—to have done, which was, to provide necessaries for his children.’ Trust estates are particularly under the charge and within the jurisdiction of the court of chancery. The most familiar instances in which the court interferes and sets aside some of the express terms of the deed creating the trust, is in the removal of the trustee for misconduct, and the appointment of another in his stead. But this is as much a violation of the terms of the settlement as is a decree to sell the estate and re-invest it, or to apply the proceeds to the preservation of the estate, or in the relief of the cestui que trust from pinching want. From very necessity a power must, exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence that power is vested in the court of chancery.” So, too, iu the case of infants, by way of anticipation of the time of payment, it was said, in Rhoads v. Rhoads, 43 Ill. 239: “We have, however, no doubt of the power of a court of chancery, on a proper case being made out, to order the trustee to anticipate the time of payment, under the will, so far as it may be shown to be necessary for the maintenance of the devisees, but its power should extend ho further.” And in Voris v. Sloan, 68 Ill. 588, where, unless the court interposed, the trust property would be lost, and after citing Curtiss v. Brown, the general principle was announced, that in cases of urgent necessity, the trust might be broken in upon, to the perversion and change of the conditions imposed by the trust.

But counsel for plaintiff in error urge, that, here, there is a. limitation over, on the termination of a life estate. But if this be conceded, and also that the general rule is, in such case, that no part of the principal of the fund can be expended for maintenance, still the authorities are, that if there is a clear intention, to be gathered from the whole will, that the child is to have a maintenance, the court will order it, although there is a gift over. Perry on Trusts, sec. 619; Lambert v. Parker, Cooper, (Temp. Eldon,) 143. And this brings us to a consideration of the will.

The manifest intention of the testator, gathered from the will itself, was, to bestow the residue of his estate upon his four children, “share and share alike,” and it can not be doubted, that had Lavina been capable of managing her share of the estate, as were the other three children, the trust in her favor would not have been declared. The trust was not declared for the benefit of the children of sound mind, but for the protection of a helpless, idiotic child. Lavina’s mental incapacity was known to the testator; and while he may have supposed the interest arising from one-sixth of his estate would provide her a support, we can not doubt but that the idea uppermost in the testator’s mind was, through the instrumentality of a trust, to secure to his unfortunate and feeble-minded daughter, to the extent of an equal share in his estate with her brother and sisters, that maintenance and support which she was incapable of affording herself. Nothing is observed in the will tending in the slightest degree to show an intent to discriminate against Lavina—to cut her share of the estate down below that taken and enjoyed by her'brother and sisters. The one central idea appears to have been to place her share in secure hands, to be managed under the direction of an enlightened court, and thereby guard her against her own weakness, and the avarice and cupidity of others, and to insure her a support as long as she might live. The direction, that upon her death the estate bequeathed to her should go in equal parts to her brother and sisters, we do not regard as controlling, but as subordinate to her right of maintenance, so that at her death they would take what might remain. Had this direction been wholly omitted, Lavina being incapable of making a testamentary devise, whatever of her estate remained at her death would, under the statute, have passed to her heirs; and but for the share the mother, if living, would have taken, Lavina’s brother and sisters were her heirs.

If wé have rightly discerned the testator’s intention, the facts of this case bring it clearly within the principles of the authorities cited. The claims allowed and ordered paid, were for the necessary support and maintenance of the cestui que trust. The funeral expenses were necessary expenses.

But if the law had been otherwise than as above announced, the plaintiff in error and his two sisters were, under the statute, (Starr & Curtis’ Stat. 1732,) liable for the support of their sister Lavina, if she was a poor person, and unable to earn a livelihood in consequence of bodily or mental infirmity. If we accept the view of plaintiff in error in this case, his sister was such poor person; and as the court had all the parties before it, and also control of the fund, we see no serious objection in the court acting upon the report of the trustee, to avoid a circuity of action, and passing upon and allowing such claims as were for the necessary maintenance of Lavina, and of ordering them paid out of the fund under the control of the court.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    In the matter of Charles P. Swigert, Auditor of Public Accounts.

      Filed at Ottawa November 11, 1887.

    1. Taxation—exemption—presumption—rule of construction. The intention of the State to bind itself by an exemption of property from taxation, must be clear, as all presumptions are against it. Exemptions from taxation will be construed strictly, and can not be made, by judicial construction, to embrace other subjects than those plainly expressed.
    2. Same —property claimed to be exempt, characterized by its ownership <md use. Where the law describes property entitled to exemption from taxation, by reference to the character of its ownership and the nature of the use to which it is put, the property claimed to be exempt must be owned and used in the manner specified in the law.
    3. Same—as to property of municipal corporation—toll-bridges. All property of municipal corporations is subject to taxation, unless there is a law clearly exempting it.
    4. There is no law of this State exempting from taxation toll-bridges belonging to a city, town or village outside the corporate limits.

      This is an original proceeding, commenced in this court by Charles P. Swigert, Auditor of Public Accounts, to have the decision and order of the county board of Bock Island county, holding certain property of the city of Moline not exempt from taxation, confirmed by this court.
    Mr. George Hunt, Attorney General, for the Auditor:
    The constitution does not exempt any property from taxation, but only permits the General Assembly to exempt certain property. Const. art. 9, sec. 3.
    The General Assembly had power, within the constitution, to pass an act exempting from taxation all property of cities and villages, but has not exercised the power.
    Where exemptions are claimed,- they must be clear and unequivocal, and all doubts are to be solved in favor of the State, and against exemption. The intention of the State to bind: itself by an exemption must be clear, as all presumptions are against it. Cooley on Taxation, 54; Seminary v. People, 101 Ill. 578; Crawford v. Burrell, 53 Pa. St. 219; People v. Seaman’s Friend Society, 87 Ill. 246; In re Swigert, 119 id. 83; Burroughs on Taxation, 132.
    It has been uniformly held by this court, that where the law, in exempting property from taxation, specifies both the ownership and use to which it is put, as descriptive of the property, unless the ownership and use of the property whose liability to taxation may be in dispute do unite in the manner specified in the law, then the property is not exempt. So where a school house was used for school purposes, but was owned by an individual, and not by the public, it was held liable to taxation. Pace v. Commissioners, 20 Ill. 464. See, also, People v. Seaman’s Friend Society, 87 Ill. 246.
    And so as to a church. (People ex rel. v. Anderson, 117 Ill. 50.) So where the ownership is within the terms of the exemption, but the'use is not. Theological Seminary v. People, 101 Ill. 578; Monticello Seminary v. People, 106 id. 398.

      While the act incorporating the Illinois Central Railroad Company purports to exempt all its property from taxation, yet the court has construed that to mean all property owned by it for the purposes for which it was incorporated. Railroad Co. v. Irwin, 72 Ill. 452; In re Swigert, 119 id. 83; Railroad Co. v. People ex rel. id. 137.
    Where property is claimed to be exempt from taxation, the burden is upon the one claiming the exemption to produce the proof showing the property to be exempt. Railroad Co. v. People ex rel. 119 Ill. 137.
    Mr. William A. Meese, for the city of Moline:
    The clause of the constitution requiring that every person and corporation shall pay a tax, etc., has reference only to private corporations. People v. Salomon, 51 Ill. 37; People v. McCreery, 34 Cal. 432; People v. Doe, 36 id. 220; People v. Austin, 47 id. 353.
    Taxes are a charge levied by the sovereign power upon the property of its subjects,—not a charge upon its own property. There is always a presumption against the intention of a State to tax its municipal corporations. United States v. Railroad Co. 17 Wall. 332.
    Public property is never subject to taxation. Directors of Poor v. School Directors, 42 Pa. 21; Gibson v. Howe, 37 Iowa, 168.
    Public property can not be considered a source of revenue to be derived by the exercise of the taxing power. Worcester v. Railroad Co. 4 Metc. 564; Wayland v. Commissioners, 4 Gray, (Mass.) 500; Worcester v. Worcester, 116 Mass. 193.
   Mr. Justice Magruder

delivered the opinion of the Court:

The city of Moline, located in Moline township in Rock Island county, owns a bridge over Rock .river, which is the dividing line between the two townships of South Moline and Coal Valley in Rock Island county. The city originally acquired the bridge by purchase and collects tolls from persons using it. The bridge is located in the township of South Mo-line at a point a mile and a half south of the city and entirely outside of the city limits. It is upon a public road leading to the city, and toll is charged and received by the city for horses and wagons and cattle crossing the bridge. It has recently been rebuilt by the city and is kept in repair by the city. The road running from said city of Moline in Moline township, through the township of South Moline, is under the control of the commissioners of highways of South Moline township and is kept in repair by them.

The bridge was assessed for taxation by the assessor of South Moline township for the year 1887. The city of Moline, by its attorney, appeared before the county board of Rock Island county, at its July session, 1887, and asked to have the assessment abated, upon the ground that the bridge was owned by the city and was not liable to taxation. The board refused the petition. The city appealed from the decision of the board, and the case was certified to the Auditor, who brings it to this court under the provisions of section 97 of the Revenue Code.

The only question presented for our consideration is, whether or not the bridge is subject to taxation.

Section 3 of article 9 of the constitution of 1870 provides as follows: “The property of the State, counties and other municipal corporations, both real and personal, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may he exempted from taxation; hut such exemption shall he only by general laio.”

This language of the constitution plainly implies, that the property of municipal corporations is subject to taxation, unless there is a law exempting it. Cook County v. City of Chicago, 103 Ill. 646.

Section 3 of article 9 of the constitution of 1848 provided, that “the property of the State and counties, both real and personal, and such other property as the. General Assembly may deem necessary for school, religions and charitable purposes, may be exempted from taxation.” It was held, in a case that came before this court while the constitution of 1848 was in force, that the assessment of public taxes, or special assessments for public improvements, upon the public property of the State, county or municipal corporations, was a mere question of policy, that the power existed to make it bear its share of the one or the other, and that it might be exempted from the one and subjected to the other. Higgins v. City of Chicago, 18 Ill. 276.

The question then arises whether or not there is any law in this State exempting from taxation a toll-bridge, owned and operated by a city for its own benefit, and located beyond the limits of such city, and in an adjoining town. We can find no such statute and have not been referred to such an one.

Section 2 of the Eevenue Code exempts from taxation:

“Sixth—All property belonging to any county, town, village or city, used exclusively for the maintenance of the poor. * * * All public buildings belonging to any county, township, city or incorporated town, with the ground on which such buildings are erected, not exceeding ten acres.

“Eighth—All fire engines and other implements used for the extinguishment of fires, with the building used exclusively for the safe keeping thereof, and the lot, of reasonable size, on which the building is located, when belonging to any city, village or town.

“Ninth—All market houses, public squares or other public grounds used exclusively for public purposes. All works, machinery and fixtures belonging exclusively to any town, village or city, and used exclusively for conveying water to such town, village or city.”

The exemptions here specified do not include such a bridge as that belonging to the city of Moline.

The intention of a State to bind itself by an exemption must be clear, as all presumptions are against it. (Cooley on Taxation, 54.) The right to levy and collect taxes is necessary to the existence and support of government. Such right will not be presumed to have been surrendered except by clear words. Its surrender will not be extended by implication. Exemptions from the burdens of taxation are to be construed strictly, and can not be made, by judicial construction, to embrace ■other subjects than those plainly expressed in the act. People v. Seaman’s Friend Society, 87 Ill. 246.

By the language employed in section 2 of the Revenue act, as above quoted, the legislature designates particular classes ■of property, which shall be exempt from taxation, and limits the classes of property, so designated, to specific uses, thereby .showing that it was not the legislative intent to exempt all property of every kind and character belonging to cities and villages. The bridge in question does not belong to any one of the classes of property exempted from taxation by the Revenue act, nor can it be used for any of the purposes for which property mentioned in that act must be used in order to be ■exempt. Where a law describes property, entitled to exemption from taxation, by reference to the character of its ownership and the nature of the use, to which it is put, the property •claimed to be exempt must be owned and used in the manner .specified in the law. Pace v. County Commissioners, 20 Ill. 644; People v. Seaman’s Friend Society, supra; People v. Anderson, 117 Ill. 50; Theological Seminary v. People, 101 id. 578 ; Monticello Seminary v. People, 106 id. 398.

Whether the legislature of this State has the power to exempt a toll-bridge, owned by a city and situated outside of the city limits, from the burdens of taxation or not, it has not yet seen .fit to pass an act granting such exemption. We are, therefore, ■of opinion that the bridge in question was properly assessed ior taxation by the assessor of the town of South Moline.

The decision of the county board of Rock Island county is .affirmed.

Decision affirmed.