author: Mr. Justice Wilkin

text:
    Elias R. Bowen v. Florence McCarthy et al.

      Filed at Ottawa November 15, 1888.

    1. After acquired title—to whom it may inure—as to mortgagee of chattels. The lessor of land, without title, gave the lessee a chattel mortgage to secure the payment of a note of the former then past due, in which it was recited that the note was extended two years from its maturity, upon condition that the rent of the leased property should be applied to pay the interest on such note, or the principal thereof, until paid. Afterward the lessor obtained the title to the land so leased: Held, that the after acquired title did not inure, either under the statute, or by way of estoppel, to the holder of the chattel mortgage, for the reason there was no deed to him, or covenant appropriate to that end.
    2. Same—effect of the condition to apply rents, as creating an equitable mortgage on the realty. The condition in the chattel mortgage to apply the rents upon the note secured thereby, did not create an equitable mortgage of the lot. It amounted to no more than that the mortgagee should, during the period of extension, have the right to apply the rents upon the note, and if it was not paid within that time, the mortgagee’s security was not a lien upon the lot, or a right to the rents, but only included the mortgaged chattels.
    Appeal from tile Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Edward Boby, for the appellant:
    The marriage of Walker having taken place in 1860, and issue horn in 1863, and death of the wife in 1864, he took an estate by the curtesy, and not an estate during coverture. Rose v. Sanderson, 38 Ill. 247; Lang v. Hitchcock, 99 id. 550; Monroe v. Van Meter, 100 id. 346; Lucas v. Lucas, 103 id. 121; Armstrong v. Wilson, 60 id. 226; Poole v. Blakie, 53 id. 496; Beach v. Miller, 51 id. 209; Cole v. Van Riper, 44 id. 64.
    The Appellate Court erred in holding that the title subsequently acquired by the quitclaim deed of Mary Louise did not inure to the benefit of Bowen. No particular words are necessary to create a covenant. Platt on Covenants, 36, 72; Shephard’s Touchstone, 122, 129, 162; Bingham on Beal Prop. 384; Rawle on Covenants for Title, 208, 383.
    The pledge of the rents to the payment of the note, created an equitable mortgage of the lot. Jones on Mortgages, chap. 5, secs. 162-168, 171, 179, 181, 183, 186, 187.
    The rents were mortgageable. Curtis v. Root, 20 Ill. 522; Chadwick v. Clapp, 69 id. 122; Chase v. Peck, 21 N. Y. 583; Nugent v. Riley, 1 Metc. 110; Cotterel v. Long, 20 Ohio, 472; Jones on Mortgages, secs. 171, 181, 186.
    Mr. Allan C. Story, for the appellee Florence McCarthy.
    Messrs. Burke & Hollett, for the appellee Emma J. Walker:
    The record of the chattel mortgage was no notice as to the title to real estate. Grundies v. Reid, 107 Ill. 304; Kerfoot v. Cronin, 105 id. 609.
    The subsequently acquired title of Walker did not inure to Bowen. Holbrook v. Debo, 99 Ill. 372; Frink v. Darst, 14 id. 304.
    Mr. James Lloyd, for the appellee Mary Louise Lloyd:
    The memorandum in the chattel mortgage does not come within the meaning of the statute in relation to the inuring of a subsequently acquired estate. Rev. Stat. chap. 30, sec. 7; Frink v. Darst, 14 Ill. 304; Bybee v. Hageman, 66 id. 519; Holbrook v. Debo, 99 id. 372.
   Mr. Justice Wilkin

delivered the opinion of the Court:

Sidney P. Walker executed and delivered to different persons his certain mortgages, one of which was to appellee Florence McCarthy, on lot 13, block 3, etc., Chicago. Appellant had been in possession of this lot for many years as tenant, and had placed some improvements thereon. He entered under a written lease executed by one Herriman, in April, 1857, for nine years, but he paid the rent to said Walker from February, 1863, and after the expiration of his term under the lease, continued in possession without any written contract, paying rent to Walker. On the 26th of April, 1866, Walker and appellant had a settlement, and a memorandum then made contains a statement that Walker shall execute a lease of the north thirty feet of said lot to Bowen, for five years, from May 1, 1866. From about the time of this settlement Bowen’s possession was confined to said thirty feet, and rent was paid to Walker for it alone, but no lease was executed. In 1874, Walker became indebted to Bowen in the sum of $4600, for which he executed his promissory note, due in two years, and to secure the payment of the same, also executed and delivered to him a chattel mortgage. This chattel mortgage was twice renewed by giving new ones, the last being dated April 12,1877. It is in the usual form of chattel mortgages in this State, with the exception of a clause in the defeasance, which makes it read as follows:

“Provided, nevertheless, that if the said Sidney P. Walker, heirs, executors, administrators or assigns, shall well and truly pay or cause to be paid unto the said Elias B. Bowen, his heirs, executors, administrators or assigns, the sum of $4600, and interest thereon, according to the tenor and effect of one promissory note, dated September 4,1874, signed by the party of the first part, (said Walker,) and payable to the order of the party of the second part, (said Bowen,) in two years after date, with interest at the rate of ten per cent per annum, (said note being extended two years from maturity thereof, upon condition that the rent of the north thirty feet of lot 13, block 3, in W. g- and W. J of N. E. J, sec. 17, and known as 15 Centre avenue, Chicago, shall be applied to pay interest on said note, or the principal thereof, so long as any portion thereof remains unpaid,) then and from thenceforth these presents, and everything therein contained, shall cease, and be null and void.”

Sidney P. Walker died January 22, 1884. In August following, appellee McCarthy filed his bill to foreclose, making those who held other mortgages, and appellant, Elias B. Bowen, parties defendant. The cause was heard in the circuit court of Cook county, before the Hon. M. F. Tuley, and a decree rendered adjusting the rights of all the parties, to which no exception is taken by any of the defendants except appellant. The decree allowed him to remove all his improvements from said lot, but disallowed his claim to a lien upon the said lot or any part of it. The Appellate Court affirmed that decree. Appellant bases his claim to a lien upon the north thirty feet of said lot 13, upon that clause in the defeasance of the chattel mortgage above mentioned which is in parenthesis, viz.: “Said note being extended two years from maturity thereof, upon condition that the rent of the north thirty feet of lot 13, block 3, * * * shall be applied to pay interest on said note, or the principal thereof, so long as any portion thereof remains unpaid, ”—and the attempt is to construe that language into an equitable mortgage, and thus give him rights in the property.

A question is made as to the title of Sidney P. Walker to lot 13 at the time he executed this chattel mortgage. It formerly belonged to his wife, who had previously died, leaving a daughter, the issue of her marriage with Walker. It seems to have been urged in the Appellate Court, that he had an estate by the curtesy,—at least that court held that he did not, but, under the Married Women’s act of 1861, had an estate during coverture, only. While we think, on the facts stated, that decision is wrong, the death of Walker terminated whatever estate he did have as husband, and therefore whether it was by the curtesy or during coverture, is immaterial, in any view of the case. He did, during his lifetime, become the owner by purchase, but it was long after the execution of the above named chattel mortgage to appellant.

It is insisted, howeyer, that that title would relate back, and inure to the benefit of appellant. We think the decision of the Appellate Court on that branch of the ease is right, and for the reasons stated in the opinion of Justice McAllisteb : “The after acquired title could not inure by virtue of the statute, because there was no deed or conveyance from Sidney P. Walker to Bowen, purporting to convey an estate in fee- simple absolute in any portion of the premises in question. It could not inure by way of estoppel by covenant, because there was no covenant appropriate to that end.” Holbrook v. Debo, 99 Ill. 372. See, also, Smiley v. Fries, 104 Ill. 416.

But we think it wholly unnecessary to place a decision affirming the decree of the circuit court on the frailty of Walker’s title at the time he made the .chattel mortgage to appellant. By no fair construction can that clause upon which appellant relies, be held to create a lien upon the realty. The whole of the chattel mortgage being considered, this clause amounts to no more than an agreement that during the two years for which the note was extended, appellant should have the right to apply the rent of that part of the lot occupied by him, on interest or principal, instead of paying it to Walker, unless the note should be sooner paid. It became absolutely due and payable in two years.from its maturity by the terms of this clause, and if not then paid, appellant’s security was not a lien upon the lot, or a right to the rents, but the chattels mortgaged. To hold that the intention of the parties was to extend the payment of the note indefinitely, and until the rents of said property should discharge it, is not only to do violence to the language of that clause, but to assume that the chattel mortgage, which was in fact the security for the note, was to have no effect.

The decree will be affirmed.

Decree affirmed.

Mr. Justice Bailey, having heard this case in the Appellate-Court, took no part in this decision.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    The St. Louis National Stock Yards v. The People ex rel. James D. Baker, Collector.

      Filed at Mt. Vernon January 26, 1889.

    1. • Boad and bridge tax—time and manner of making levy. The commissioners of highways, in making a levy of a road and bridge tax, can only act in the manner and at the time specified in the statute. They must exercise the powers conferred upon them by the legislature as they are given, or their acts will be nugatory.
    2. Same—completing levy at an adjourned meeting. The statute requires the commissioners of highways to meet to determine the rate per cent of road and bridge taxes, at the same place of meeting oí the town board of auditors, on the day of the semi-annual meeting which precedes the annual meeting of the'county board; and if they fail to meet and enter upon the consideration of the matter, but meet and make the levy at a later date, their action will be void.
    3. But when the commissioners, or two of them, meet, and the question of fixing the rate of the road and bridge tax is brought up, but not finally decided, and the meeting is adjourned to a fixed day when there is a full attendance of the board, and the rate is then fixed, the levy will be valid and binding.
    4. Same—rate-of levy in excess of sixty cents. The commissioners of highways, with the consent of a majority of the town auditors, properly obtained, may levy, in view of some contingency, an additional rate of taxes, not exceeding forty cents upon the $100; but this levy must be made at the same time the ordinary levy is made. There is no authority of law for two levies of such taxes for the same year. They can make but one levy and one certificate.
    5. When the commissioners of highways, after levying and certifying the road and bridge tax, again meet, and with the consent of the board of town auditors levy an additional tax to meet certain contingencies, and certify the same, the latter levy will be void, and it will be error to render judgment against lands for such tax.
    Appeal from the County Court of St. Clair county; the Hon. J. B. Hay, Judge, presiding.
    Messrs. Messick & Rhoads, for the appellant:
    The levies of the road and bridge taxes were illegally made, the first because made at a meeting held on a day different from that fixed by the statute, and the second for the same reason, and because the commissioners had made a preceding levy, and thereby exhausted their powers.
    Commissioners of highways have no power other than such as is given them by the statute, and they must pursue the statute strictly, in the imposition of road and bridge taxes. 1 Dillon on Mun. Corp. sec. 25, p. 32; 2 id. p. 766, sec. 769; Cooley on Taxation, (2d ed.) 276, 348; Burroughs on Taxation, 396, secs. 138, 401; Commissioners v. Newell, 80 Ill. 587; Smith v. Wilson, 57 Miss. 138; Oliver v. Carsner, 39 Texas, 396.
    Mr. F. G-. Cockrell, for the City of East St. Louis:
    The objections made to the taxes are technical, and do not go to the substantial justice of the tax. Beers v. People, 83 Ill. 488; Buck v. People, 78 id. 560; Moore v. Fessenbeck, 88 id. 422; Railway Co. v. Surrell, id. 535.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an application, by the collector, to the county court of St. Clair county, for judgment against lands for the delinquent taxes for the year 1887. The St. Louis National Stock Yards appeared and objected to a judgment for the road and bridge tax levied by the commissioners of highways of the town of East St. Louis, on the ground that the tax was not levied at the time or in the manner prescribed by law. The court, upon the evidence introduced by the respective parties, overruled the objection, and rendered judgment for the entire tax levied by the commissioners.

The statute prescribes the time when the road and bridge tax shall be levied, and the manner in which the levy shall be made. Section 13, chapter 121, (Starr & Curtis’ Stat. p. 2140,) provides that the highway commissioners shall meet to determine the rate per cent of tax that shall be levied for road and bridge purposes, at the same place of meeting of the town board of auditors, on the day of the semi-annual meeting which precedes the annual meeting of the county board. Section 3, article 13, of the township law, provides that the board of town auditors shall meet semi-annually, on Tuesday next preceding the annual meeting of the county board, etc. Section 49, chapter 34, provides that the annual meeting of the county board shall be on the second Tuesday of September of each year.

Section 13, above alluded to, limits the amount of tax which the commissioners may levy, to sixty cents on each $100. Section 14 of the statute provides a mode in which a greater .amount may be levied, in view of a contingency.

The first Tuesday of September, in the year 1887, (the time provided by the statute for the commissioners to meet and make the levy,) occurred on the 6th day of that month. No levy, however, was made on that day, but on the following Tuesday (September 13,) the commissioners met, and made a levy of forty cents on each $100 of the taxable property of the town. Upon making the levy, the commissioners executed, under seal, a certificate, as follows:

“It is hereby certified by the commissioners of highways of the town of East St. Louis, that the rate per centum finally agreed upon by said commissioners at their semi-annual meeting, held on the 13th day of September, 1887, by virtue of sections 13 and 14 of the act entitled “An act in regard to roads and bridges in counties under township organization, and to repeal an act and parts of acts therein named,’ is forty cents,—twenty cents for each.
‘ “Given under our hands and seals, as said commissioners of highways, this ,13th day of September, 1887.”

It is contended that this levy is void, because not made on the 6th day of 'September,—the time fixed by the statute when the commissioners shall act. It is true that the commissioners of highways, in making a levy, can only act in the manner and at the time specified in the statute. They must exercise the powers conferred upon them by the legislature as they are given, or their acts will be nugatory; and we think it is a plain proposition, that if no meeting had been held and no action had been taken on the 6th day of September, the levy made in the following week would have been void. But the record of the commissioners of highways, read in evidence on the trial, shows that on the 6th day of September a meeting was had, and the question of fixing upon the rate of tax was brought up, but as one of the commissioners was absent, the meeting was adjourned, for final action, until the 13th day of September. After the commissioners met on the day specified in the statute, we do not think it was an abuse of power to defer action and adjourn to a specified day, and then resume the business which had been commenced at the time prescribed by the statute. If, for any satisfactory cause, the commissioners were unable to complete the business before them on the day specified in the statute, we think they had the right to adjourn over to a certain specified day, and then, on that day, meet, and go on with the business. So far, therefore, as the levy of September 13 is concerned, we think it is valid.

It appears, however, that on October 20 the commissioners held another meeting, and made an additional levy of twenty cents on the $100. This action, it is claimed, was authorized by section 14 of the statute, which is as follows:

“If, in the opinion of the commissioners, a greater levy is needed, in view of some contingency, they may certify the same to the board of town auditors and the assessor, a majority of whom shall be a quorum; and with the consent of a majority of this entire board, given in writing, an additional levy may be made, of any sum not exceeding forty cents on the $100 of the taxable property of the town.”

The consent of a majority of the board of town auditors was obtained, but at the time the consent was obtained, on the 20th day of October, the commissioners of highways had no authority to make a levy. There is no statute which authorizes two levies in one year, and when the levy of September 13 was made, the commissioners had exhausted their power. If, when the commissioners met, as authorized and required under section 13, a greater levy was needed, in view of some contingency, than sixty cents on the $100, they might then apply to the board of town auditors for consent, and if consent is given, the levy may be increased. But this can only be done on Tuesday next preceding the annual meeting of the county board. This is manifest from the language of section 16 of the statute, which declares : “The commissioners, at said semi-annual meeting, shall make a certificate of the rate per centum finally agreed upon, by virtue of sections 13 and 14 of this act, which shall be delivered to the town clerk.” This does not contemplate that the commissioners may take action under one section at one time, and afterwards proceed under the other. Nor does the statute contemplate two certificates of levy, but, on the other hand, one levy and one certificate.

But it is not necessary to elaborate this matter. We are satisfied that the levy of twenty cents on the $100 of taxable property of the town on October 20 was unauthorized, and as respects this part of the tax the county court erred in rendering judgment against appellant’s property for the same.

The judgment of the county court will be reversed, and the cause remanded.

Judgment reversed.


author: Per Curiam:

text:
    The La Salle and Peru Horse and Dummy Railroad Company v. Timothy Donoghue, Collector.

      Filed at Ottawa November 15, 1888.

    1. Taxation— over-assessment—not reviewable in equity. Where power has been conferred upon a person or board to make an assessment for taxation, and in the exercise of that power a greater value has been placed on certain property than should have been, a court of equity will have no power to review the assessment and correct an error of that character.
    2. Same—grounds for injunction. The action of an assessor is final, so far as the interposition of a comt of equity is concerned, unless it can be shown that the assessment was fraudulently made, or that the property assessed was not liable to taxation, or the legislature, in authorizing the tax, has disregarded or transcended the principles of equality, or when a tax has been levied not authorized by law.
    3. Same—fraudulent assessment—as to certain action of the State Board of Equalisation. A corporation returned its capital stock as of no value, and sent an attorney to the State Board of Equalization, who stated that the capital stock was valueless, on account of the failure of the enterprise, and offered to pay the expenses of a committee of the board in investigating the matter. The committee promised the attorney that they would notify him if they were not satisfied with his statement, which they failed to do. The board assessed "the capital stock at $5000, but upon what evidence, if any, it did not appear. Held, that while the failure of the committee to keep their promise was wrong, this did not render the assessment fraudulent. In the absence of proof to the contrary, it will be presumed that the board, in assessing capital stock, acted upon sufficient evidence to justify its action.
    Appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Bull & Strawn, for the appellant.
    Messrs. Maloney & Stead, for the appellee.
   Per Curiam:

This was a bill in equity, brought by the LaSalle and Peru Horse and Dummy Eailroad Company, against the collector of taxes of the town of LaSalle, in LaSalle county, to enjoin the collection of a tax assessed by the State Board of Equalization on the capital stock of complainant for the year 1884." The complainant returned its capital stock as being of no value, but the State board assessed the capital stock at $5000.

It is claimed that the capital stock was of no value; hut if that be true, and the State board committed an error of judgment in making the assessment, that affords no ground for relief in a court of equity. When the power has been conferred upon a person or a board to make an assessment, and in the exercise of that power a greater value has been placed on certain property than should be placed upon it, a court of equity has no power to review the action of the assessor, and correct an error of that character. The rule well established, is, that the action of the assessor is final, unless it can be shown that the assessment was fraudulently made, or that the property assessed was not liable to taxation, or the legislature has, in authorizing the tax, disregarded or transcended the principles of equality, or where a tax has been levied when not authorized by law. (Republic Life Ins. Co. v. Pollak, 75 Ill. 294.) The facts presented by this record do not, in our opinion, bring-the case within any of the exceptions stated above.

As bearing upon the question of fraud," it was proven, on the hearing, that complainant sent an attorney to Springfield, while the State board was in session, who appeared before the committee on the assessment of capital stock of corporations, and stated to the committee that the object for which the enterprise had been incorporated had proven an entire failure; that the capital stock was of no value, and the debts of no value, except to the extent of the tangible property, which had already been assessed at its full market value. The attorney also stated, that if the committee was not satisfied with the statement made, he desired a committee to be sent to La Salle for the purpose of making an examination of the affairs of complainant, and an offer was made to defray the expenses of the committee, should it go and make the examination to ascertain whether the returns complainant had made were true. The committee promised the attorney that they would notify him if they were not satisfied with his statement,—that they w'ould notify him if they intended to make any assessment of the capital stock of the company. The attorney, after this interview, returned home, hut received no communication from the committee in regard to the assessment. Doubtless, the committee of the board before whom the attorney of the company appeared, did wrong in making a promise which was not fulfilled or observed in relation to the assessment, but we do not think this rendered the assessment fraudulent. What evidence was before the committee or the board, upon which the assessment was made, does not appear from anything in this record, and in the absence of any showing whatever in this regard, we must presume that the facts before the board, upon which it acted, were ample to justify the assessment. For aught that appears, the board may have made a thorough investigation as to the value of the capital stock of complainant, and become thoroughly satisfied, from uncontradicted evidence, before the assessment was made. It would be unsafe, and might result detrimentally to the best interests of the State, to establish a rule under which the action of the State board could be impeached by proving that one of its committees had failed to keep faith with some person acting for a corporation which had to be assessed by the board. '

It is also claimed that the assessment of the Board of Equalization in 1884 violated the constitutional provision of uniformity. The same question arose in Coal Run Coal Co. v. Finlen, 124 Ill. 666, and we there held that the provision of the constitution was not violated. The decision in that case must control here.

The judgment will he affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    William P. Culbertson et al. v. The City of Fulton et al.

      Filed at Ottawa November 15, 1888.

    1. Municipal indebtedness—constitutional limitation—as to the time when the debt is incurred. Where a city enters into a contract to pay a sum of money when certain work shall be done and accepted, the obligation thereby assumed will constitute a debt, within the meaning of the constitutional limitation of its power to incur indebtedness. Such indebtedness will be regarded as having been incurred from the date of the contract, and not postponed to the time of the completion and acceptance of the work.
    2. Same—the assessment of what year shall govern—in respect of the limitation. A city contracted for the construction of water works in August, 1887, by which it was to pay for the works, when completed and accepted, the sum of $11,619. The equalized value of the taxable property in the city was not fixed until October 1, 1887: Held, that the valuation of the property for the year 1886 governed as to the limitation of the amount of corporate indebtedness allowed to be incurred, and the valuation for that year being $209,061, the city was prohibited from incurring any greater indebtedness than $10,453.05, being five per cent upon the preceding year’s assessment, and that the debt in excess of that sum, being $1165.95, was void, but up to $10,453.05 was valid and enforceable.
    3. Same—upon what assessment. It is the assessment as finally fixed by the State Board of Equalization that must govern, in determining the basis of the limitation of the power to create municipal indebtedness.
    4. Same—City of Fulton—power to borrow money and issue bonds for water works. The city of Fulton, under its charter and the laws of the State, has the power, by ordinance adopted by a vote of the people, to borrow money with which to build and construct a system of water works, and to issue its bonds for the same, not exceeding the constitutional limit.
    5. Municipal taxation—injunction as to a part, if divisible. A tax can not be levied to pay a municipal debt forbidden by the constitution, but when the tax levied is only in part to pay such a debt, and the residue for a lawful purpose, only the illegal part will be enjoined. The tax levied within the limit of the lawful power of the body imposing it, will be sustained, when it can be separated from the portion that is illegal.

      6. SAME'—appropriation ordinances—as to cities, etc., acting wider special charters—general law not applicable. Section 2, of article 7, of the “Act to provide for the incorporation of cities and villages,” approved April 10,1872, requiring an appropriation ordinance to be passed within the first quarter of the fiscal year, as a prerequisite to the validity of an ordinance for the levy of municipal taxes, has no application to cities, towns and villages incorporated and acting under special charters, but applies only to cities and villages incorporated under the general law.
    7. Same—extent of power as to rate of assessment—the rule in special chm-ters controlled by subsequent legislation. Although the charter under which a city is organized may limit its power of taxation to one-half of one per cent of the assessed value of taxable property, yet it may, by a majority of the members of its council, exceed the rate so limited, under the provisions of the “Act authorizing cities, incorporated towns and villages to construct and maintain water works,” approved April 17, 1873, and “An act in relation to the rate of taxation in cities, villages and incorporated towns,” approved May 30, 1881, and “An act in relation to the levy and collection of taxes for sewerage and waterworks in cities of this State,” approved June 21, 1883. These acts may be regarded as repealing the limitation in such special charter as to the extent or rate of the levies authorized.
    Appeal from the Circuit Court of Whiteside county; the Hon. Julius 8. G-rinnell, Judge, presiding.
    Mr. James McCoy, and Messrs. W. & W. D. Barge, for the appellants:
    The charter of the city limited its power to tax, to one-half "of one per cent. The acts of May 30, 1881, and June 21, 1883, being general laws, do not apply to cities under special charters. Potwin v. Johnson, 108 Ill. 70; Sparland v. Barnes, 98 id. 595.
    Section 2, of article 7, requires the city, “within the first quarter of the fiscal year,” to pass an appropriation ordinance, else the levy is void. People v. Railroad Co. 116 Ill. 410; People v. Lee, 112 id. 113; Riverside Co. v. Howell, 113 id. 256.

    When the city accepted the water works, it became indebted to the full amount of the contract price, ($11,619,) less the $400 already paid. This debt exceeds the five per cent limit, and is therefore void. Const. of 1870, art. 9, see. 12; Springfield v. Edwards, 84 Ill. 626; Prince v. Quincy, 105 id. 138; Law v. People, 87 id. 385; Litchfield v. Ballou, 114 U. S. 190.
    This contract is not susceptible of any division, nor is the consideration. It being entire, and some portion of it, at least, being illegal, the whole is' void. Filson’s Trustees v. Himes, 5 Pa. St. 452; Bank v. King, 44 N. Y. 87; More v. Bonnet, 40 Cal. 251; Widoe v. Webb, 20 Ohio St. 431; Braitch v. Guelick, 37 Iowa, 212.
    It is, of course, impossible to distinguish the valid from the invalid portion of the debt secured by the bonds. The transaction involved in the issue of the bonds is entire and indivisible, and therefore the whole is invalid. Millerstown v. Frederick, 114 Pa. St. 435.
    Messrs. Bennett & Green, for the City of Fulton:
    The powers given by the charter and other statutes, giving all cities power to construct and maintain water works, are sufficient to allow the city council to issue water works bonds to the full constitutional limit. Dutton v. Aurora, 114 Ill. 143.
    Conceding, for the purpose of argument, that the contract for $11,700 created, at its inception, an indebtedness, it would only be invalid as to the excess over the constitutional limit. East St. Louis v. Gas Co. 98 Ill. 415; Hasbroucke v. Milwaukee, 13 Wis. 37; McPherson v. Foster, 43 Iowa, 48; 2 Dillon on Corp. secs. 384, 385, and note.
    The act of 1877 applies to all cities. It only provides that a tax shall be assessed and collected, as provided in article 8 of the act of 1872, which article does not require an appropriation ordinance. Sparland v. Barnes, 98 Ill. 595.
    By the statutes passed May 30,1881, the power was given the city of Fulton to levy a tax of one per cent on the taxable property within the city, in addition to any tax necessary to pay interest on its bonded indebtedness. Rev. Stat. p. 257.

      By the statute of 1883, (Bev. Stat. p. 255, sec. 254,) power is given all cities to levy a tax of one mill on the dollar for the creation of a sinking fund for water works purposes, with a further power to make such tax three mills on the dollar by the action of two-thirds of all the members elect of the city council, and a further power to levy two mills in addition to those above named, to be exclusively used to supply such city with water. It is shown that the requisite two-thirds of all the aldermen elect authorized such levy. These amounts are in addition to the one per cent fixed by the statute of 1881, as decided in Thatcher v. Railway Co. 120 Ill. 560, and exceed the $3000 levied by the ordinance in question.
    But a broader power is given the city by the act of April 15, 1873, authorizing all cities to erect, construct and maintain water works. As held in Dutton v. City of Awora, 114 Ill. 138, that act repealed the limitations of all special charters as to taxation for such purposes, and left the cities controlled only by the constitutional limitation.
    Mr. Charles F. White, for the Eclipse Wind Engine Co.:
    The limitation in the special city charter as to the rate of taxation, is a limitation upon the municipal authority, and not upon the General Assembly. Dutton v. City of Aurora, 114 Ill. 138; Thatcher v. Railroad Co. 120 id. 560; United States v. New Orleans, 98 U. S. 397.
    That the act in relation to the levy and collection of taxes for sewerage and water works in cities, etc., and to authorize cities, etc., to levy and collect taxes to pay for water, etc., approved and in force June 21, 1883, fully authorizes the tax levy in question, see Dutton v. City of Aurora, 114 Ill. 138; Thatcher v. Railroad Co. 120 id. 560.
    The proposed issue of bonds to the amount of $10,000 would not create a debt in excess of the constitutional limitation. Springfield v. Edwards, 84 Ill. 633; Law v. People, 87 id. 399.

      The authority given to cities to construct and maintain a system of water works, carries with it the power to adopt the ordinary means employed by such bodies to raise funds for that purpose, including the issuing of its bonds. United States v. New Orleans, 98 U. S. 381; Lowell v. Boston, 111 Mass. 460; Commonwealth v. Commissioners, 37 Pa. 277; Hitchcock v. Galveston, 96 U. S. 341; Williamsport v. Commonwealth, 84 Pa. St. 487; Le Cauteaux v. Buffalo, 33 N. Y. 333; Hosbrook v. Milwaukee, 25 Wis. 132.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed on December 16, 1887, in the' Circuit Court of Whiteside County, by appellants, who are tax payers in the City of Fulton, against the City of Fulton, the Eclipse Wind Engine Company and the Town Collector of the town of Fulton, who are the appellees herein. The bill alleges, that a contract was made by the Engine Company with the City for the construction of a system of water-works to furnish a supply of water for domestic uses and fire purposes; that the City therein agreed to pay a certain sum for the water-works; that the Company has constructed the water-works and claims the balance due on the contract; that the City proposes to pay the excess of the contract price over $10,000.00 out of the taxes, hereinafter mentioned, when collected, and to issue and deliver to the Company bonds to the amount of $10,000:00; that the indebtedness and the tax, proposed to be collected to pay the excess over $10,000.00, are illegal for the reasons hereinafter stated, etc. The prayer of the bill is for an injunction restraining the City from accepting the water-works and issuing the bonds, and restraining the collector from collecting the tax, and for a decree that the said taxes may be declared illegal and void, etc. The defendants answered; replications were filed; after hearing, the Circuit judge dissolved the injunction and dismissed the bill.

The City of Fulton was incorporated under a special law, approved February 24, 1859, and amended March 9, 1869. (Private Laws of 1859, p. 150; Private Laws of 1869, vol. 1, p. 917.). On June 9, 1887, the city council passed an ordinance, providing for the borrowing of $10,000.00 for the purpose of constructing a system of water-works, and that bonds, drawing five per cent interest be issued therefor in denominations of $500.00 each, to be negotiated by the Mayor at public- or private sale, and the avails thereof to be paid into the city treasury for said purpose, etc. At a special election held in the city on July 1, 1887, this ordinance was approved by a vote of the people, as required by the charter.

Under its charter and the laws of the State, and by virtue-of the ordinance and vote aforesaid, the City unquestionably had the power to borrow the money to build the water-works. (Dutton v. City of Aurora, 114 Ill. 138).

The contract between the City and the Engine Company was executed on August 15, 1887, and, by its terms, the system of water-works was to be completed within ninety days, from that date. The contract provided, that when certain p§,rts of the work should be completed to the satisfaction of the council, the contractor might, at his option, receive fifty per cent of the cost of such parts, the remainder of the contract price to be paid when the work should ‘be completed and' accepted by the city. The city on its part therein agreed to' pay the Engine Company $11,619.00 at or during the completion of the work, as provided in the contract, and upon its acceptance by the council.

On August 25,1887, the City Council passed an ordinance, ordaining that a tax of $3000.00 be and was thereby levied on all the property subject to taxation within the corporate limits, as assessed and equalized for State and county purposes for the year 1887, “$1700.00 for the completion of the payment of the contract price for the construction of a system of water-works, $500.00 for the payment of interest on city bonds known as water-works bonds, $500.00 for a sinking fund to provide for the payment of the principal of water-w'orks bonds, $300.00 for revenue purposes known as the city fund.”

A motion was filed on February 7, 1888, by the defendants below to dissolve the preliminary injunction that had been granted in the case. This motion was heard on February 27, 1888, upon bill, answers and affidavits. It appears from the affidavits that the City council, on November 17, 1887, accepted the system of water-works as completed, except the engine house, which was alleged to have certain defects. It furthermore appears, that by February 4, 1888, the engine house had been repaired to the satisfaction of the city, and that on that day the whole system was in good running order and ready for acceptance by the city.

First—Appellants claim, that, by the issuance of the bonds to the amount of $10,000.00, the city will “become indebted * * * to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness,” contrary to the prohibition of the constitution as contained in section 12 of Article 9.

It is proven, that, when the contract was made and also at the time of filing the bill, the city was not indebted in any amount whatever, except for the waterworks in question.

By entering into the contract on August 15, 1887, the city “became indebted.” The obligations entered into by the terms of the contract constituted such an indebtedness as is contemplated by the language of the constitution. It can not be said that the indebtedness did not come into being until the work was completed and accepted by the city. The city bound itself to pay for the work, when it should be completed, and could be compelled to do so, if the work should be done according to the contract. We said in City of Springfield v. Edwards, 84 Ill. 626.

“A debt, payable in the future, is, obviously, no less a debt than if payable presently; and a debt payable upon a contingency, such as the rendering of some service or the delivery of property, 'etc., is some kind of a debt, and therefore within the prohibition. If a contract or undertaking contemplates, in any contingency, a liability to pay, when the contingency occurs the liability is absolute,—the debt exists,—and it differs from a present unqualified promise to pay only in the manner by which the indebtedness was incurred.”

The constitution provides that the value of the taxable property must be ascertained by “the last assessment for state and county taxes previous to the incurring of such indebtedness.” Inasmuch as the indebtedness must be regarded as having been incurred at the date of the contract, that is to say, August 15, 1887, we must ascertain the value of the taxable property, for the purposes,of this case, from the assessment for State and county taxes for the year 1886, and not for the year 1887. This is so, for the reason that the equalized value of the assessable property in the city of Fulton for the year 1887 was not arrived at by the action of the State Board of Equalization until the first day of October 1887. It is the assessment as fixed by the State Board, which must govern, and the State Board did not fix such assessment until after August 15, the date of the incurring of the indebtedness.

The value of the taxable property in the city, as assessed and equalized for the State and county taxes of 1886, was $209,061.00. Five per cent of this amount is $10,453.05. The contract price, towit: $11,619.00 exceeds $10,453.05 by $1165.95.

This sum Of $1165.95 is the amount of the excess of the indebtedness over the constitutional limit.

Counsel for both sides treat the $10,000.00 to be raised by the sale of the bonds, and $10,000 of the amount agreed to be paid to the Engine Company, as one and the same debt, because the object of raising the $10,000.00 on the bonds is to pay $10,000.00 of the price named in the contract. As it thus seems to be conceded by both sides, that one indebtedness of $10,000.00 to the bondholders, and another and separate indebtedness of $10,000.00 to the Engine Company, are not to be incurred in any event, we spend no time in discussing the possibility of such result. We consider the case upon the assumption presented in the briefs, that there is only one indebtedness of $11,619.00 less what may have been paid.

The indebtedness, however, can only be regarded as void to the extent of the amount of the excess over the constitutional limit. Up to and under that limit the indebtedness is valid. The inhibition operates upon the indebtedness and not upon the form of the debt. In the State of Iowa, which has a constitutional provision almost identical with that now under consideration, the officers of a school district made a contract to build a school house, for which the contractors were to receive $15,000.00 in bonds of the district, when the amount of indebtedness, which the district could lawfully contract, was only $2057.50. The Supreme Court of that State say: “We have seen that for the excess over the prescribed limit no right of action exists against the district. The question now arises, is the district liable for the amount of the indebtedness within the restricted limit. We think it is. As we have seen, the constitutional inhibition operates upon the indebtedness, not upon the form of the debt. The district may become indebted to the amount of $2057.50 by bond. If the debt exceeds that amount, it is void as to the excess, because of the inhibition upon the power of the district to exceed the limit, and the bonds as to the same excess are void because of the non-existence of a valid debt therefor. But this restriction does not extend to the sum of $2057.50, for which the district had power to issue its bonds. That sum is a valid debt. The bonds to that extent are valid.” (McPherson v. Foster Bros. 43 Iowa, 48.) (See also, Stockdale v. Wayland School Dis. 47 Mich. 226; Mix v. People, 72 Ill. 241.)

It follows, that, of the $1700.00, levied by the ordinance of August 1887 for the completion of' the payment of the contract price for the construction of the water-works, the sum of $1165.95 represents an illegal and unconstitutional indebtedness. A tax can not be levied to pay a debt forbidden by the constitution. But where an injunction is sought to restrain a tax that is in part excessive, the excess may be enjoined, and the bill dismissed as to the remainder. This court has uniformly held, that the tax levied within the limit of the power will be sustained, when it can be separated from the portion that is illegal. (Mix v. People, 72 Ill. 241 and cases there cited.) No judgment has yet been rendered, and the books are still in the hands of the collector.

Second, it is charged on behalf of the appellants that no appropriation ordinance was passed within the first quarter of the fiscal year.

Section 2 of article 7 of the general “Act to provide for the incorporation of cities and villages,” approved April 10, 1872, requires an appropriation ordinance to be passed “within the first quarter of each fiscal year.” But this requirement is not contained in the special charter of the city of Fulton. The Act of May 23, 1877, “in regard to the assessment and collection of municipal taxes,” (Starr & Curt. Stat. page 537), provides tljat all cities, villages and incorporated towns in this State, whether organized under the general law or special charters, shall assess and collect their taxes in the manner provided for in article 8 of the cities and village incorporation Act, (Town of Sparland v. Barnes, 98 Ill. 595), and in the manner provided in the general revenue laws of .the State. (People v. Lee, 112 Ill. 113). It will be observed, that the act of 1877 refers only to article 8 of the cities and village incorporation law, and not to article 7 thereof. Article 8 provides for the levying and collection of taxes, and does not contain the requirement in regard to the appropriation ordinance which is found in article 7. We, therefore, think, that, under the special charter of the city of Fulton, as it was before the act of 1877 and as it was changed by the terms of that act, the ordinance of August 25, 1887, is not invalid because it was not preceded by an appropriation ordinance.

In People v. Lee, supra, it appeared that no ordinance levying a tax was passed, and consequently that no certified copy of an ordinance was filed with the county clerk, as required by section 1 of article 8, but that the clerk of the board of trustees merely delivered to the county clerk a certificate, as specified in section 122 of the revenue Act. The question there was, whether such certificate was sufficient in the absence of a certified copy of the ordinance required by section 1 of article 8. The ordinance there decided to be necessary was the ordinance provided by section 1 of article 8 for levying the tax, and not the ordinance referred to in section 2 of article 7. Any language there used, which is broad enough to include the latter ordinance, was not necessary to the decision of the case. The town of Mound Station therein named was not organized under the said Act of April 10,1872, but under the general law of" 1845, which, like the charter of the City of Fulton, did not require a prior appropriation ordinance. In Riverside Co. v. Howell, 113 Ill. 256, and People v. P. D. E. R. R. Co. 116 Ill. 410, the cities under consideration had organized under the Act of April 10, 1872, and hence were governed by the provisions of article 7 of that act. In the case at bar, the ordinance of August 25, 1887, conforms to the requirements of section 1 of article 8, except as to the sum of $1165.95 above mentioned.

Third—It is further contended by appellants that the amount levied by the ordinance of August 25, 1887, is more than one half of one per cent, the limit of taxation fixed by the charter of the city of Fulton.

It is not denied that the ordinance in question was passed by a two-thirds’ majority of the members of the city council. Therefore the tax of $3000.00 levied by the council was not in excess of its power, so far as the mere amount is concerned, as will be seen by reference to the following statutes and decisions : “An act authorizing cities, incorporated towns and

villages to construct and maintain water-works,” approved April 15, 1873, (Starr and Cur. Stat. page 544); “An act in relation to the rate of taxation in cities, villages and incorporated towns,” approved May 30,1881, (Starr & C. Stat. page 538); “An act in relation to the levy and collection of taxes for sewerage and water-works in cities of this State” etc., approved June 21, 1883, (Starr & C. Stat. page 546); Dutton v. City of Aurora, 114 Ill. 138; Thatcher v. C. & N. W. Ry. Co. 120 Ill. 560. These acts must be regarded as repealing the limitation in the special charter of the city of Fulton to the extent of the levies authorized by them.

After deducting from the amount levied by the ordinance of August, 1887, the sum levied for interest on bonded indebtedness, there remains $2500.00, The one per cent tax provided for in the act of 1881 and the three mills and two mills taxes provided for in the act of 1883 together exceed $2500.00, one per cent of $209,061.00 being $2090.61 and two mills or one fifth of said one per cent being $418.12. But when we deduct the sum of $1165.95 above mentioned from the sum of $2500.00, there remains only $1334.05, which is still further within the limit authorized by the acts and decisions here referred to.

The decree of the Circuit Court was correct in dissolving the injunction and dismissing the bill as to the acceptance of the water-works, the issuance of the bonds and the collection of so much of the tax, levied by the ordinance of August 1887, as remains after deducting said sum of $1165.95. In these respects the decree is affirmed. But it should have enjoined the collection of said sum of $1165.95. In the latter particular the decree is reversed and the cause is remanded to the Circuit Court with directions to so modify its decree as to enjoin the collection of said sum of $1165.95 less what has been paid.

Decree reversed, in part and in part affirmed.


author: Mr. Justice Scholfield

text:
    John T. Carpenter v. Mary Van Olinder et al.

      Filed at Ottawa January 25, 1889.

      1. WmiiS—words limiting 'to a life estate in the, first taleer—how far controlled by a devise of the remainder to his “heirs”—the rule in Shelly’s case. Where a devise assumes to give- a life estate, only, to the first taker, and the remainder to the “heirs” of such devisee, the person designated in the will as a life tenant merely, will take an estate in fee; and the language of the devise, or other parts of the will showing an intention to give only a life estate, will not control.
    2. Although a testator, in making a devise of real estate, may have intended that the devisee shall take only an estate for life, yet if he afterwards gives an estate to the heirs of the life tenant or to the heirs of his body, the law will contravene Ms intention, and vest in the devisee the remainder of the estate or the fee.
    3. Neither the express declaration that the ancestor shall have an estate for his life, and no longer, nor that he shall have only an estate for life in the premises, and that after his decease it shall go to the heirs of his body, and in default of such heirs, vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator, nor that the ancestor shall be tenant for his life and no longer, and that it shall not be in his power to sell, dispose of or make away with any part of the premises, will change the.word “heirs” into a word of purchase, in a devise.
    4. The manifest intent of the donor can not control the legal effect and operation of the word “heirs," when standing for the ordinary succession as a word of limitation, and render it a word of purchase. If the term “heirs,” as used, comprehends the whole class of heirs, and they become entitled, on the death of the ancestor, to the estate, either in the same manner and to the same extent, and with the same descendible qualities, as if the grant or devise had been to A and his heirs, then the word “heirs” is a word of limitation, and the intention will not control the legal effect of the word.
    5. The term “heirs” must be used as a mere designation of one or more individuals, or a new import given to it by superadded or in-grafted words of limitation varying the sense and operation, in order to make it a word of purchase. The rule in Shelly’s case, being a rule of law, will not yield to the intention of the testator or grantor.

      6. The rule in Shelly’s case is in force in this State as a rule of property, and the question of intent in determining whether it is applicable in a given case does not turn upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs.
    7. Same—;former decision. The decision of this court in Belslay v. Engel, 107 Ill. 182, is not inconsistent with the ruling herein. That case is clearly distinguishable from this. There, the word “heirs" was used as synonymous with the word “child” or “children." Expressions in the opinion in that case, so far as they indicate a different rule from that here announced, must be regarded as overruled.
    8. Same—the particular case. A testator devised to his wife and three daughters “the use of all” his property after the payment of Ms debts, to be divided between them “as the same would be by law without a will," except that none of the real estate, other than the wood land, be sold or disposed of, “but be kept sacred for their heirs:” Held, that the widow took a dower estate for life, and the three daughters took an estate in fee simple, as tenants in common, subject to dower, and that either heir might have sold her estate, without regard to the others, and that the word “heir,” in the devise, was not used as the equivalent of “child” or “children” or “issue.” This brings the case within the rule in Shelly’s case.

    Appeal from the Circuit Court of Kendall county; the Hon. C. W. Upton, Judge, presiding.
    Hiram Bauder, of Kendall county, was the owner of four hundred acres of land in that county, forty acres of wood land in the “big woods,” in Kane county, a house and lot and block of land in Montgomery, Kane county, and was possessed of $5000 in value of personal property, consisting of horses, cattle, farming tools, etc., and money. By his last will and testament he devised as follows:
    “I give and bequeath to my beloved wife, Mary Bauder, and to my. three daughters, Harriet Elizabeth, Nancy Catharine and Melissa, the use of all my property after the payment of all debts, (except what is hereinafter disposed of by this will,) to be divided among them as the same would be by law without a will, except that it is my will that none of the real estate be sold or disposed of, excepting the wood lot in the big woods, for their use, but be kept sacred for their heirs; and I give and bequeath to my adopted boy, William B. Duffett, $200 when he becomes of age, provided he lives with my wife and family till that time, or till the family is broken up, which is my wish he so do; and I bequeath to my mother, Elizabeth Bauder, $25 a year from the income of my property, during her natural life.”
    Melissa Bauder died in 1860, soon after the death of the testator, without issue. Subsequently the land in the “big woods, ” in Kane county, was sold, and the money was divided between Mary Bauder, Harriet E. Bauder and Nancy C. Bauder, as provided in the will. In 1863, Mary Bauder, Harriet E. Bauder and Nancy C. Bauder divided the remaining real estate by setting apart one-third to Mary as her dower, and the remaining interest was divided into three equal parts, of which one was set apart to Harriet E., one to Nancy C., and the remaining third to the heirs of Melissa,—namely, one-half to her mother, the said Mary, and one-fourth each to Harriet E. and Nancy C. Harriet E. Bauder intermarried with John T. Carpenter, April 3, 1860, and she died August 27, 1869, leaving one child, Carrie Carpenter, her only heir-at-law, who died without issue May 7, 1865, having previously, by her last will, devised all of her property to her father, John T. Carpenter. Nancy C. Bauder intermarried with Leander Keck, January 1,1865. Mary Bauder intermarried with J. C. Yan-Olinder, in 1863.
    The present bill was filed by Mary Yan Olinder and Nancy C. Keck, against John T. Carpenter, for a construction of the will of Hiram Bauder. The circuit court held that the word “heirs,” as used in the will, was a word of limitation, and not of purchase, and, accordingly, that the estate vested was in fee simple, and not for life. Carpenter appeals from that decree.

      Mr. Charles Wheaton, for the appellant:
    The word “heirs,” when used in a will, should be taken as designatio personarum, when it is manifest the testator intended to use it in that sense. Butler v. Huestis, 68 Ill. 594; Belslay v. Engel, 107 id. 182; Baker v. Scott, 62 id. 86; Pellin v. Blake, 4 Burr. 2579; Findlay v. Ridell, Binn. 139; Millett v. Ford, 109 Ired. 159; McMahon v. Newcomer, 82 id. 565.
    The rule in Shelly’s case will not be allowed to defeat the plain intention of the testator. Doe v. Jackman, 5 Ired. 283; Helm v. Frisbie, 59 id. 526; Rapp v. Matthias, 35 id. 332; Erom v. Harman, 73 id. 412; Clifford v. Farmer, 79 id. 529; Hileman v. Bouslaugh, 13 Pa. St. 344; Patrick v. Morehead, 85 N. C. 62; Urich’s Appeal, 86 Pa. St. 386; DeKay v. Irving, 5 Denio, 646.
    The court will not resort to a technical construction for the purpose of defeating the manifest intention of the testator. (Gardner v. Gardner, 6 Paige, 455; Stewart v. Chambers, 2 Sandf. Ch. 382.) So the word “heirs” will not be interpreted as a word of limitation, if the intention is apparent to use it in another sense. Burtis v. Doughty, 3 Brad. (N. Y.) 287.
    Again: The main thing to get at in the construction of a will is the intention of the testator, to be ascertained from the whole will taken together. 1 Jarman on Wills, (Perkins’ ed.) 414, 425, and notes, where this question is fully discussed; Covenhoven v. Shuler, 2 Paige, 122; Crosby v. Wendell, 6 id. 548; Pond v. Burgh, 10 id. 140.
    In a will, a general intent must yield to a particular intent, to. be gathered from a construction of the whole will taken together. (2 Williams on Executors, pp. 1152-1164.) Thus, the words, “heirs of the body,” in a will, yield to a clear intent that the estate should only be for life. Ibid. pp. 1153, 1154.
    The same words may be applied to personalty and realty in different sensqs. Ibid. p. 1158.

      Mr. M. 0. Southworth, and Mr. N. Gr. Aldrich, for the appellees:
    The true question of the intent turns, not upon the quantity of the estate intended to be given to the ancestor, but on the nature of the estate intended to be given to the heirs. Baker v. Scott, 62 Ill. 100; Ryan v. Allen, 120 id. 648.
    From a careful examination of the cases cited, and such others as we have been able to find that bear on the question, we think it will appear that where the devise is made to “heirs, ”. and not to “children,” it can not be construed to go to them as a class. In the case at bar, the broadest terms are used, and it does not seem that by any rule of construction it can be made to mean that it is applicable to a class.
    In the case of Butler v. Huestis, 68 Ill. 594, the distinction is very clearly set forth. There, on page 600, the court say: “Thus, as Mr. Jarman expresses it, if the limitation be to the heirs of the body, he takes a fee tail; if to his heirs generally, he takes a fee simple.” And it appears, from all the author-. ities cited in that case, that in each and every instance where the devise is to go in any manner to a class, it must be first construed that they take as purchasers, and not by limitation.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question here is, whether, in construing a devise which assumes to give a life estate to the ancestor and the remainder in fee to the heirs-at-law of such ancestor, the language of the devise in giving the life estate, and other parts of the devise showing, in connection with that language, that his intention was to give only a life estate, must control.

It is quite clear, upon authority, that the answer must be in the negative. We held in Baker et al. v. Scott, 62 Ill. 88, that the rule in Shelly’s case is in force here as a rule of property, and that the question of intent, in determining whether it is applicable in a given case, does not turn upon the quantity of estate intended to be given to the ancestor, but upon the nature of the estate intended to be given to the heirs; and it was shown in that case, that in the great case of Perrin v. Blake, 4 Burrows, 2579, (3 Greenleaf’s Cruise on Beal Prop. 313,) as finally decided in the Exchequer Chamber, it was admitted that the rule in Shelly’s case often defeats the undoubted intention of the devisor, “for,” it was said, “there never was an instance where an estate for life was expressly devised to the first taker, that the devisor intended he should have any more. Brit if he afterwards gives an estate to the heirs of the tenant for life, or to the heirs of his body, it is the consequence or operation of law that in this case supervenes his intention, and vests the remainder in the ancestor.”

Preston, in his work on Estates, (vol. 1, p. 281, *283,) says, in speaking of the legal effect, under the rule in Shelly’s case, of the word “heirs” in a devise or grant: “That all possible heirs of the given description are to take in succession, from generation to generation, under the name of heirs of the ancestor, is to bring the ease immediately within the rule. That only one individual, or several individuals, is or are to take in the character of heirs, or, rather, as particular persons described by that name, either for their lives only, or for an estate of inheritance to be deducible from them as the stock or ancestor, and that their heirs are described by superadded words of limitation, and as their descendants, is to exclude the rule.” And again, in the same volume, at page 362, (*363,) this author says: “In wills, the rule” (i. e., in Shelly’s case,) “applies generally, and without exception, to the several limitations, as often as the gift to the heirs is without any expression of qualification.” And he thus illustrates his meaning: “Neither the express declaration, first, that the ancestor shall have an estate for his life, and no longer; nor, secondly, that he shall have only an estate for life in the premises, and that after his decease it shall go to his heirs of his body, and, in default of such heirs, vest in the person next in remainder, and that the ancestor shall have no power to defeat the intention of the testator; nor, thirdly, that the ancestor shall be tenant for his life, and no longer, and that it shall not be in his power to sell, dispose or make away with any part of the premises, * * * will change the word ‘heirs’ into a word of purchase.”

Kent says, (vol. 4, p. 233, 8th ed.) in speaking of the declaration of the Exchequer Chamber in Perrin v. Blake, supra: “The result of that famous controversy tended to confirm, by the weight of judicial authority at Westminster Hall, the irresistible pre-eminence of the rule,” (i. e., in Shelly's case,) “so that even the testator’s manifest intent could not control the legal operation of the word ‘heirs,’ when standing for the ordinary line of succession as a word of limitation, and render it a word of purchase. If the term ‘heirs,’ as used in the instrument, comprehended the whole class of heirs, and they became entitled, on the death of the ancestor, to the estate, in the same manner and to the same extent, and with the same descendible qualities, as if the grant or devise had been simply to A and his heirs, then the word heirs is a word of limitation, and the intention will not control the legal effect of the word. The term must be used as a mere designation of one or more individuals, or a new import given to it by superadded or en-grafted words of limitation, varying its sense and operation, in order to make it a word of purchase.”

The principle, applicable here, is clearly and forcibly stated in Hay’s Principles for Expounding Dispositions of Eeal Estate, 96, (7 Law Lib. 52,) thus: “The requisite limitations to the ancestor and his heirs being found, the rule must be applied. It can never be a question whether the rule shall be applied or not. We might as well be asked whether a testator intended to contravene the rule against perpetuities. It will no more yield to individual intention than any other fundamental law of property. The rule admits of no exceptions.”

To like effect is Bender v. Fleurie, 2 Grant’s Cases, 345. The testator gave to his daughter certain land, in these words: “She shall have it as her own during her life, and then it is to come to the heirs of her body for their own use.” And the Supreme Court of Pennsylvania said: “But it is said, the testator did not mean to give her an estate tail. Perhaps he did not. But he has used words which, in law, mean nothing else. If he intended to give but a life estate voluit non dixit, we must take what he said, not what he meant. * * * But no court, in this State or in England, has ever treated the phrase, “heirs of her body,’ as words of purchase, when they are used with reference to the issue of a devisee to whom a life estate is given. They are words of limitation, and, as such, they create an estate tail in the first taker, which can not be cut down, even by the clearest desire that it shall be a life estate only.” Under our statute cutting off entails, as construed in Butler v. Huestis, 68 Ill. 594, such a devise, we concede, would not here create an estate tail. But that is purely because of our statute. The rule of construction thus laid down, is, beyond question, pertinent, and applicable here to devises like that before us, which are unaffected by any statute of our State.

In Hileman v. Bouslaugh, 13 Pa. St. 344, the same court, speaking of the rule in Shelly’s case, said: “The requisite limitations to the ancestor and his heirs being found, the rule must be applied. It can never be a question whether the rule shall be applied or not, whether the author of the limitation intended it to be applied or not.” And again: “The question on a will is not whether the testator intended that the rule shall not operate,—for this is not subject to his power,—but whether he used the words, ‘heirs of the body,’ as synonymous with the word ‘children,’ or its proper equivalent.”

The result of the authorities in regard to the question before us is well stated by Mr. Justice Elliott, speaking for the Supreme Court of Indiana, thus: “It has seemed to many that there is a conflict between the rule declaring that the intention of the testator must govern, and the rule in Shelly’s case; but the appearance of conflict fades away when it is brought clearly to mind that when the word ‘heirs’ is used as a word of limitation, it is treated as conclusively expressing the intention of the testator. Where it appears that the word was so used, the law inexorably fixes the force and meaning of the instrument. If once it is granted that the word was used in its strict legal sense, nothing can avert the operation of the rule in Shelly’s case; so that the inquiry is, was the word used as one of limitation? The only method in which an instrument employing the word ‘heirs’ can be shown not to be within the rule, is by showing that the word was not employed in its strict legal sense.” Allen v. Croft, 109 Ind. 476. See, also, Theobald on Wills, 336, et seq. The doctrine thus sustained was assumed by us to be the law in Wicker et al. v. Ray, 118 Ill. 472, and Ryan et al. v. Allen, 120 id. 648, though the present question was not there discussed.

Counsel for appellant cite general rules of construction, and some cases in apparent conflict with the foregoing views. A careful examination of the general rules cited, will show that when their application to eases like the present is understood, there is no conflict; and the cases cited will be found, on examination, distinguishable from the present case, in that it appeared in those cases, from the connection in which they occurred, that the words “heirs,” or “heirs of body,” were used as synonymous with “child” or “children,” or some other limited class, and not as meaning those who take by inheritance, generally,—as, heirs, in the technical sense of the word. Thus, in Millet et al. v. Ford, 109 Ind. 159, the devise is this: “I give and bequeath unto my son, James R. Rachels, during his lifetime, the following real estqte: * * * to have the use of the above described land during said James’ lifetime, and after his death to the heirs of his body in lawful wedlock, and none others.” The words, “heirs of his body in lawful wedlock,” could by no possibility intend others than . his children, and so the devise was precisely as if it had been to James R. Rachels and his children. And so in Urich’s Appeal, 86 Pa. St. 386, the devise is to the devisor’s children, and their heirs. But in a subsequent clause he declares that none of his children should have the right to sell or encumber the lands, but the lands shall remain free for their children or heirs, etc., showing clearly that “children” and “heirs”' were used as synonymous,—in other words, that when he said “heirs” he intended “children.”

The other cases cited by counsel for appellant will be found to be alike distinguishable from the present case,—restricting- and narrowing the meaning of the word “heirs” to particular persons, or to a particular class of persons less than that of' heirs in general. The devise in Belslay v. Engel, supra, was: “ Sixth, I give and bequeath unto my grand-daughter, Catharine Belslay, the free use and occupation of,” (then describing the lands in dispute,) “to have and to hold, to use, occupy and enjoy the same * * * during her natural life. * * * Thirteenth, it is my will, and this bequest is made upon the-express declaration, that in case any of my said grandchildren should depart this life without issue of their body, then that all their share of said real estate * * * shall be equally divided among all my grandchildren and their legal representatives, and the title thereto thereafterwards so vest forever. It is my will that no title in fee to any of said land shall vest in my said grandchildren, and I declare it to be my will that they shall have only a life estate therein, and that the fee simple shall vest in their legal heirs.” It is plain that this is but equivalent to saying, “I give the life estate to my grandchildren, and the remainder in fee to their children.” The heirs of those that die without issue of their bodies,— i. e., children,—being excluded by the necessary effect of the devise, it inevitably follows that none but children of grandchildren could be their- “legal representatives” or their “legal heirs,” and therefore, in using those terms, the testator clearly meant children of grandchildren,—and such was the effect of the decision.

Beyond all question, then, the ease was rightly decided. In the argument of the opinion, however, there is language that seems to place the decision upon the intention of the testator to vest a fee in the legal representatives or legal heirs of the grandchildren, as determined from a consideration of all of the language of the will, and not, as should have been done, upon the evident intention of the testator to use the words “legal representatives” or “legal heirs” as synonymous with “children,” and, therefore, as words of purchase and not of limitation. This language of the opinion was unadvisedly assented to by a majority of the members of the court, and is now disapproved and overruled.

It is clear from the language, “to be divided among them as the same would be divided by law without a will,” that the testator intended to give his wife and daughters the same use of the real estate that they would have been entitled to had he made no will, hut that they shall not be allowed to sell it. A devise of the use of the land is equivalent to a devise of the land itself, and carries the legal as well as the beneficial interest therein. (Ryan et al. v. Allen, supra.) Had there been no will, our statute would have given the widow dower in the lands, and vested the fee in the daughters,—one-third each, as tenants in common. Neither would have had an interest in the individual interest of the other, and therefore the heirs of one would not necessarily have been the heirs of the other. In the light of these observations, the will must be read, substantially, thus: "I give to my wife, Mary, dower in my lands, and I give to my daughters, Harriet E., Nancy C. and Melissa E., each, the undivided one-third of my lands, subject to the dower of my wife, Mary, therein, except that it is my will that none of the real estate be sold or disposed of, * * * but that the same he kept 'sacred for their heirs.” The injunction to not sell, is plainly upon each, severally, because the title is not that of joint tenants, but that of tenants in common, and each, therefore, might sell without regard to the others. And for like reason the injunction to preserve is upon each, severally, and, necessarily, to preserve that which is given her, and for her own heirs, because the heirs of no one else, merely as such, can have any interest in her estate.

The only limitation in the language employed in the will is that we have been considering. There is nowhere a single word or syllable to indicate that -the word “heirs” was here used as the equivalent of “child” or “children” or “issue,” or to otherwise indicate a class less comprehensive than that included within the technical meaning of “heirs-at-law." Under our statute, therefore, this general language of the devise carries a fee. (Rev. Stat. 1874, chap. 30, sec. 13.) The word “heirs,” as here used, clearly means all who are to take, generally, without exception, as a class of inheritable persons, and as the successive heirs of the daughters named, severally, and not a part,— as individuals selected out of the class of heirs,—and therefore brings the case within the rule in Shelly’s case. 1 Preston on Estates, p. 282, *283.

Stress is laid, in argument, upon different matters, as presented by the entire devise, claimed to show that the testator could not have intended to give an estate in fee to his daughters. But we have seen that that is not the question. If the language he used, in the legal sense that must be placed upon it in the connection in which it occurs, imports a conveyance in fee to the daughters, such must be its effect, although it may appear that he actually only intended to convey a life estate, the only inquiry permissible being, whether, from other parts of the devise, it appears that the word “heirs” was used in a sense more restricted than the term itself imports,—as the equivalent of “children,” “issue,” or some other partial or restricted class of heirs.

Finding no cause to disturb the judgment, it must be affirmed.

Judgment affirmed.


author: Mr. Justice Bailey

text:
    Joseph W. Drexel et al. v. The Town of Lake.

      Filed at Ottawa January 25, 1889.

    1. Municipal cobpobatioN'—powers as to public improvements — pumping works as connected with a system of sewerage. Upon the principle that the grant of a power carries with it, by implication, the right to use all means and instrumentalities necessary to a beneficial exercise of the power, the grant,of a general power to construct sewers, without any restriction as to the mode in which they are to be built or operated, must be construed with reference to the situation and requirements of the district in which the sewers are to be constructed, and must be held to confer authority to construct them in such manner and with such appliances as may be necessary to render them serviceable and effective.
    2. ' Where a system of sewerage of the ordinary kind can not be used to advantage, for want of sufficient fall to carry away the contents of the mains and pipes by the force of gravitation, village and other municipal authorities, under a general grant of power to construct main drains and sewers, etc., without any limitation or restriction as to the' mode in which they shall be built or operated, will have the right to construct pumping works, to be used in the working and use of the sewers.
    3. Special assessments—Town of Lake—power to construct sewers —how to be paid for. The town of Lake, by the fifteenth section of its charter, is vested with power to cause main drains and sewers, private drains and aqueducts, to be constructed, cleansed and repaired; and by section 16 it is provided, that the expense of any such improvement shall be defrayed by special assessments upon the real estate benefited thereby.
    4. Same—ordinance—whether for distinct improvements. Where it becomes necessary to establish pumping works in connection with a sewerage system, in order that the latter may be made to serve its proper purpose, and the combined improvement is provided for in a single ordinance, a special assessment to defray expenses of the improvement can not be defeated on the ground the ordinance provides for two distinct improvements, or that it is double.
    Appeal from the County Court of Cook county; the Hon. Richard Pbendebgast, Judge, presiding.

      Messrs. Wilson & Moore, and Mr. B. S. Thompson, for the appellants.
    Mr. B. J. Harkness, and Mr. B. T. Hollett, for the appellee.
   Mr. Justice Bailey

delivered the opinion of the Court:

This is an appeal from a judgment of the County Court of Cook county confirming an assessment upon the lands of the appellants, for the construction of a sewer in the town of Lake in said county. Said town embraces a territory six miles square, lying immediately south of the city of Chicago and west of the town of Hyde Park, and is a town incorporated under a special act of the General Assembly approved March 26, 1869. Yol. 4, Private Laws of 1869, p. 324. The town seems also to have adopted the ninth article of the general act of 1872, providing for the incorporation of cities and villages.

It appears that in consequence of the peculiar topography of the territory lying within the town, much of the surface being but a few feet above the level of Lake Michigan, and the remoteness of a proper place to discharge its drainage and sewage, a system of sewers constructed on the ordinary plan, so as to carry off and discharge its surface water and sewage merely by force of gravitation, is wholly inadequate. The town therefore, after taking the advice of careful and competent engineers, has adopted a general system for the construction of sewers, upon the plan of draining the southerly ¡lortion of its territory by means of drains and sewers running to a central reservoir or well to be located at or near the corner of Sixty-ninth and Halsted streets, and there constructing pumping works for raising it to a higher level and discharging it by means of a main or trunk sewrer, to be constructed, along Halsted street from Sixty-ninth street to Thirty-ninth street, into the Stock-yards slip and thence into the Chicago river. The portion of this general system of sewers which the town is now attempting to construct, and for which the assessment in question is levied, consists of the main or trunk sewer on Halsted street and the pumping works at Sixty-ninth street. The total estimated cost of that portion of the general system now in contemplation is $180,050, the estimated cost of the main sewer being $151,804, of the pumping works $21,'746, and of the engineering, superintending and making and levying the assessment $6600.

The plan contemplated by the town for constructing its lateral drains and sewers discharging into the main sewer or central reservoir is partly if not wholly in accordance with what is known as the double, as distinguished from the combined system, that is, by constructing one set of drains for carrying off the storm or surface water, and another and lower system for carrying off the sewage. Accordingly, for the purpose of levying the assessment to defray the expense of .constructing the main sewer and pumping works, the territory deemed to be benefited thereby is divided into three districts, the first consisting of that portion of the territory benefited from which both systems of drains are to be discharged into the main sewer, the second of that portion from which the surface water only can be discharged into the main sewer, and where the lower or sewage drains must be carried to the central reservoir, and the third where both systems of drains must run to the central reservoir. The present appeal brings up the case of an assessment upon a tract of land in each of these districts.

The objections urged to the assessment in the court below and now chiefly relied upon relate solely to the construction of the pumping works. These objections are, 1, that the town, by its charter, has no power to erect such works and pay for the same by special assessment, and 2, that the improvement is double, that is, that two entirely distinct and separate improvements are combined and are to be paid for by one assessment.

As to the first of these objections, we are of the opinion that it is unnecessary to go beyond the provisions of the act incorporating the town of Lake to find the requisite power. By the fifteenth section of that act, power is given to the trustees of the town to cause main drains and sewers, private drains and aqueducts, to be constructed, cleansed and repaired, and by the sixteenth section it is provided that the expense of any such improvement shall be defrayed by special assessment upon the real estate benefited thereby. The only question is, whether, in view of the system of sewerage adopted by the town, the pumping works by which the sewage is to be raised or forced from the central reservoir into the main sewer, is to be deemed a part of the sewer, within the meaning of said act. The proposed works are to be constructed and operated upon what is known as the Shone Pneumatic System, which is a mode of pumping by means of compressed air supplied from an air compressor. The compressed air is conducted through iron pipes to receivers or ejectors into which the sewage flows from the sewers. When a receiver becomes full of sewage, an air valve opens automatically, letting in compressed air, and forcing the sewage out of the receiver. The air is then shut off and exhausted, and the process is repeated.

The definition of the word sewer as given by Webster is, “a drain or passage to convey off water and filth underground.” Usually the sewage is carried through the sewers and discharged therefrom by force of gravitation. But in very level districts where the point of discharge is little if any lower than the level of the sewer at its commencement, it is manifest that if the sewer is of any considerable length, it can answer no purpose of drainage, if gravitation alone is to be depended upon for the discharge of the sewage. In such districts, a system of sewerage, to be of any avail, must bring into operation some other power or agency. Such new agency then becomes, from the very necessity of the case, an integral part of the sewerage system, and the structures and machinery by which that agency is operated and brought into play may properly be regarded as essential parts of the sewer. The grant of a power carries with it, by implication, the right to use all means and instrumentalities necessary to a beneficial exercise of the power. Upon this principle, the grant of a general power to construct sewers, without any restriction as to the mode in which they are to be built or operated, must be construed with reference to the situation and requirements of the district in which the sewers are to be constructed, and must be held to confer authority to construct them in such manner and with such appliances as may be necessary to render them serviceable and effective for the purposes for which sewers are designed. If the-surface is such as to readily admit of drainage by force of gravitation, sewers should doubtless be so constructed as to be operated by that force alone. But if the surface is so low as to preclude the discharge of sewage at any practicable point by that means, the power to construct sewers would be altogether nugatory unless it. is to be construed so as to include the power to use some artificial means to supply or make operative the force of gravitation.

In the judgment of the trustees of the town of Lake the portion of the town which is to be served by the proposed sewerage system is so situated as to be incapable of proper drainage to any practicable outlet by force of gravitation alone. In this judgment they are clearly supported by the facts. The most practicable point for the discharge of the sewage of the entire district seems to be at the Stock-yards slip, which is situated at Thirty-ninth street, the north boundary line of the town. Said district extends entirely across the town, a distance of six miles, and the- surface of a considerable area in the southerly part of it is only about six feet above the level of said slip. It is manifest that a district thus situated can not be supplied with sewerage constructed with due reference to efficiency or sanitary requirements, if it must depend upon gravitation alone for the out-flow and discharge of its sewage. ¡Resort then must he had to such expedients for overcoming the difficulty as. modern engineering has developed, and the o choice of expedients is within the legislative discretion of the trustees of the town, a discretion with which the courts will not interfere unless clearly abused. By the system proposed, a central reservoir is to be -constructed at Sixty-ninth street, about four miles from the Stock-yards slip, into which the sewage from the southerly portion of the district is to flow. There it is to be raised by the pumping works nearly twenty feet and discharged into the main sewer on Halsted street. By this expedient the southerly part of the district is given the advantages of drainage which it would have if its entire surface was raised that distance above its present level.

Without protracting the discussion on this point further, it is sufficient to say that, under the circumstances of this case, the pumping works must be deemed to be an essential and integral part of the sewerage system of the town, and that the power to erect such works must be held to be embraced within the general grant of power to construct sewers given to the trustees of the town by its charter.

Upon the other point raised, viz, that the assessment is for two distinct improvements, little need be said. The pumping works being, as we have already held, a part of the sewer, it is difficult to see how they can be regarded as separate and independent improvements. The pumping works and sewer are no more divisible than are the several parts or sections of the sewer itself. True, the property in the district in which both the storm and sewer drains discharge directly into the main sewer, may be said to derive no benefit from the pumping works, but it is equally true that property adjacent to certain portions of the sewer itself will derive no benefit from the construction of other portions. It may well be urged that property situated near the mouth of the sewer will be in no degree benefited by the construction of those portions situated two or three miles further south. This however is no test by which to determine whether the improvement is single or double. In City of Springfield v. Green, 120 Ill. 269, the improvement for which the assessment was levied consisted of the paving of a large number of the streets and alleys of the city, and it was held to be a single improvement. The test there applied was, that the streets and alleys to be paved were so similarly situated with respect to the improvement proposed as to justify treating them as parts of a common enterprise, and therefore a single improvement. In that ease the reasons' for holding the improvement to be double were much stronger than in this.

Counsel for the appellants raise some question as to the power of the trustees of the town to create districts for sewerage purposes, but at the same time disclaim placing any considerable reliance upon that point. Under these circumstances all we need say is, that they have failed to present any considerations in support of their position in that respect which seem to us to be satisfactory. We find no error in the judgment of the County Court, and it will therefore be affirmed.

Judgment affirmed.