author: Mr. Justice Craig Mr. Justice Sheldon,

text:
    Aquila H. Pickering v. John A. Lomax et al.

      Filed at Ottawa March 22, 1887.

    1. Indian titles to lands—permission of the President, as a condition to the right of alienation—whether a limitation upon the fee. A condition in an Indian treaty, and in a clause in a patent for land granted under the treaty to a person of Indian descent, that the land shall never be leased or conveyed by the patentee, or any of his heirs, to any one, without the permission of the President of the United States, is not void as being a limitation upon the fee.
    2. Same—effect of conveyance without such permission—and of approval by the President after conveyance. Under article 4 of an Indian treaty between the United States and certain Indian tribes, made in 1829, two sections of land in this State were granted to A. B., for himself and children, with the stipulation that such lands should never be leased or conveyed by the grantees, or their heirs, to any person whatever, without the permission of the President of the United States, and the patent contained a similar limitation. A partition was had between A. B. and his children, and J. B., one of the children, on August 3, 1858, by his deed conveyed to H. the part set off to him in severalty. Afterward, on January 21, 1871, the President of the United States indorsed upon this deed his approval: Held, that the deed of J. B. to H. was void, and passed no title, and that the subsequent permission of the President indorsed thereon did not make it valid.
    3. Tax tile—by whom it may be acquired. A person in the actual possession of land, and whose legal duty it is to pay the taxes thereon, can not acquire a tax title, growing out of his own neglect of duty. But a person in possession of land, having no title, and under no obligation to pay the taxes, may acquire a tax title thereto.
    4. Same—notice of application for judgment—description of land. In order to give the county court jurisdiction to render judgment against land for taxes, the land must be properly described in the collector’s notice of the application for judgment. Without such a description as will identify the land, the notice will confer no jurisdiction.
    5. A collector’s notice of application for judgment against delinquent lands for taxes, described one of the tracts as follows: “Except 12.64 acres in the south-east corner of sub-lot 1, lot 1, in north section Bobinson’s reserve:” Held, that the notice was meaningless, and void for uncertainty in the description of the land.

      Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding. .
    Messrs. Bisbee, Ahrens & Decker, for the plaintiff in error:
    There are some reported cases in which-provisions similar, in some respects-, to those of the treaty under consideration have been discussed or construed. So far as we have been able to discover, the only cases throwing any light upon the subject are the following: Smith v. Stevens, 10 Wall. 321; Harris v. Doe, 3 Ind. 494; Lowrey v. Weaver, 4 McLean, 82; Ex dem. Godfrey v. Beardsley, 2 id. 412; Murray v. Wooden, 17 Wend. 531; Jackson v. Wood, 7 Johns. 295; Chandler v. Edson, 9 id. 362; Goodell v. Jackson, id. 486; Sunal v. Hepburn, 1 Cal. 254; Stevens v. Smith, 2 Kan. 243; Chinnubbee v. Nicks, 3 Porter, (Ala.) 362; Harmon v. Porter, 12 S. & M. 425.
    If plaintiff in error acquired no title or right through the Bobinson conveyance, then he was under no obligation to pay taxes, and had the same right as any stranger, to acquire a tax title. Seaver v. Cobb, 98 Ill. 200.
    There is no such uncertainty in the description in the tax deed, and the notice of sale, as to be fatal. It was treated in the court below as a variance between the description in the notice and in the judgment record. The real question is, whether the description in the notice describes anything. If it does, it is no variance. We contend that, within established rules, the description can be construed. Kruse v. Wilson, 79 Ill. 233; Kile v. Town of Yellowhead, 80 id. 208; Smith v. Crawford, 81 id. 396.
    Mr. P. T. McElherne, and Mr. Robert Hervey, for the defendants in error:
    It is submitted by defendants in error, that the prohibition in the patent to Bobinson, against his conveying or leasing, or conveyance or lease by his heirs, without the permission of the President of the United States, is an absolute limitation upon it. The word “permission” signifies sanction in advance. The leave of the President to the making of the proposed conveyance must be'had, and without it no title passes.
    When the deed from Eobinson to Horton was presented to the President for approval, Horton had long been dead. What title his administrator could convey, had long been conveyed. The heirs of Horton, if any one, acquired title, if any could be held to pass by the approval of President Grant, in 1871, when the title had passed through so many hands.
    At the date of the tax sales, and the deeds thereunder to Combs, the plaintiff in error claimed to own the lands in question in fee simple absolute. Can it be tolerated that he should allow lands of which he claimed to be the owner, to be sold for taxes, afterward acquire the tax titles in his own name, and thus• attempt to fortify his title? That, we submit, can not be permitted. The plaintiff in error claimed to own the lands when they were sold for taxes, and he claims now to own them, and has endeavored to make proof of a title direct, traced from the patentee. A man so situated can derive no benefit from a tax deed.
    The tax deed was properly excluded, in addition, on the ground of variance between the judgment and the notice. The judgment describes one parcel of land, the notice another; and the counsel for plaintiff in error can only overcome this obstacle by asking the court to change' the notice. This can hardly be done.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by Aquila H. Pickering, against John Lomax and William Kolze, to recover two certain parcels of land in Cook county, which are particularly described in the declaration. The parties waived a jury, and submitted to a trial before the court, which resulted in a judgment in favor of the defendants, and the plaintiff sued out this writ of error.

On the trial, for the purpose of establishing title, plaintiff offered in evidence article 4 of the treaty between the United States and the Ottawa, Chippewa and Potawatamie Indians, contained in the United States Statutes at Large, volume 7, page 321:

“There shall be granted by the United States to each of the following persons, (being descendants from Indians,) the following tracts of land, viz: To Claude Laframboise, one section of land on the Riviere Aux Pleins, adjoining the line of the purchase of 1816; to Frangois Bourbonne, Jr., one section at the missionary establishment on the Fox river of the Illinois; to Alexander Bobinson, for himself and children, two sections on the Biviere Aux Pleins, above and adjoining the tract herein granted to Claude Laframboise. The tracts of land herein stipulated to be granted, shall never be leased or conveyed by the grantees, or their heirs, to any persons whatever, without the permission of the President of the United States.”

The plaintiff also put in evidence a copy of a patent issued by the United States, December 28, 1843, under the provisions of the treatjr granting the lands to Alexander Bobinson, for himself and children, which contains this provision: “But never to be leased or conveyed by him, them, his or their heirs, to any person whatever, without the permission of the President of the United States.” Plaintiff also introduced in evidence proceedings in partition, instituted February 22, 1847, in the Cook county Court of Common Pleas, between Alexander Bobinson and his children, of the lands granted by the patent, wherein the lands in question were set off to Joseph Bobinson. The plaintiff also introduced evidence tending to establish the following conveyances: Deed dated August 3, 1858, from Joseph Bobinson and wife to John F. Horton; administrator’s deed of Severn Stevens, administrator of John F. Horton, deceased, to Moses W. Baer, dated October 6, 1863,—this deed having been made in pursuance of an order of sale, by the county court of Cook county, for payment of debts. Then followed .several intermediate conveyances of the premises, down to a deed dated November 10, 1866, from Henry H. Dyer and wife to Aquila H. Pickering, the plaintiff. The deed from Robinson and wife to Horton, executed August 3,1858, has endorsed ujion it the approval of the President of the United States, of date January 21, 1871.

The treaty under which the lands were granted to Alexander Robinson and his children, was concluded on the 29th day of July, 1829. Whether the deed executed August 3, 1858, from Joseph Robinson and wife to John F. Horton, without the permission of the President of the United States, was sufficient to pass the title to the lands attempted to be conveyed, involves a construction of the last clause of the treaty set out above, and also that clause of the patent prohibiting a conveyance without iiermission of the President. The object of the condition, in restraint of a sale, is manifest. It was designed for the benefit and protection of the Indian, as a safeguard to protect property bestowed upon him, against fraud, imposition, and his own improvidence in the disposition of his lands. The wisdom of such a provision, in view of the condition of the Indian at the time, and his liability to be defrauded out of his property unless the protecting hand of the government was interposed in his behalf, is not, nor can it be, questioned. It is true that the patent issued to Robinson granted the fee in the lands, and we are not unmindful of the fact that a limitation upon the fee, as a general rule, is contrary to the policy of our law. But we think it is well settled, in a case of this character, that effect will be given to conditions imposed in a treaty, and a patent issued by the government in pursuance of a treaty made with the Indian tribes. The patent under which Robinson and his children derived their title to the land, prohibits a lease or conveyance of the land, by all or either of them, without the permission of the President of the United States. The grant was made in pursuance of a treaty between.the government and the Indian tribes, upon this condition. This mode of conveyance having been provided, by necessary implication any other is prohibited, and being prohibited, it would seem to follow that the deed was invalid, and passed no title.

A ease in many respects similar to this, is Smith v. Stevens, 10 Wall. 321. There, a treaty was concluded by the United States, in June, 1825, with the Kansas Indians. The sixth article provided, that there should be reserved to each of the half-breeds (Victoria Smith being one of them) certain lands. The eleventh article provided, that the Indians shall never sell or dispose of the lands reserved, without the permission of the United States for that purpose first had and obtained. On May 26, 1860, Congress passed an act referring to the treaty of 1825, and reciting that the land reserved had been surveyed, and allotted to each of certain half-breeds, in accordance with the sixth article of the treaty; that all the title, interest and estate of the United States is hereby vested in said reservees. The second section of the act provided, that the Secretary of the Interior, upon the request of the reservees, is authorized to sell such lands for the benefit of such reservees, in accordance with rules and regulations to be prescribed by the Commissioner of Indian Affairs, and approved by the Secretary of the Interior. On the 14th day of August, 1860, Victoria Smith, one of the half-breeds, being in possession of her tract, executed a deed purporting to convey it to one Stevens, and he went into possession of the land. Subsequently, Victoria Smith brought ejectment against Stevens, to recover the land. As a defence, he relied upon the deed of August 14, 1860, but the State courts of Kansas held the deed was void, and this ruling was affirmed in the Supreme Court of the United States,

In the ease cited, the treaty provided that the lands reserved should not be conveyed without the consent of the United States, and the act of Congress, subsequently passed, vested the title in the Indians or half-breeds, and provided for a sale by the Secretary of the Interior, on request of the Indians. This mode of sale was disregarded, and an absolute deed made without the consent of the Secretary of the Interior, while in the case under consideration the treaty and patent require the consent of the President to a sale. It seems plain that the rule which should control one case should be binding in the other. In disposing of the ease in the Supreme Court, it is said: “It was considered by Congress to be necessary, in ease the reservees should be desirous of relinquishing the occupation of their lands, that some method of disposing of them should be adopted which would be a safeguard against their own improvidence; and the power of Congress to impose a restriction on the right of alienation, in order to accomplish this object, can not be questioned.” It is also said: “The sale in question not only contravened the policy and spirit of the statute, but violated its positive provisions. ” The conclusion of the court is, that under the treaty and law in force at tlje date of the deed, Victoria Smith had no power to sell, and as the Secretary of the Interior never authorized the sale or consented to it, the sale was void, and the deed passed no title. Here, the deed was made, as was said before, without the permission of the President, and in violation of the treaty and the provisions of the patent, and if no title passed in the case cited, as was held, for the same reason we must hold no title passed in this case. It is true that thirteen years after the deed in question was made, and after the death of' the grantee, it was approved by the President; but we do not regard this as a compliance with the conditions upon which a sale might be made. The sale was consummated, if at all, upon the execution and delivery of a deed. The validity of this act required the consent of the President. It was not obtained, and the act was nugatory, and could not be validated by any subsequent attempted approval.

One other question remains to be considered. In addition to the chain of title just considered, plaintiff claimed title to the premises under a tax sale of 1875, for the taxes due on the premises for the year 1874. At the tax sale the property was purchased by Shepard, and upon the expiration of the time allowed for redemption, a deed was made to his assignee, Hiram Combs, who conveyed to the plaintiff. On the trial, the delinquent list, judgment for taxes, precept, certificate of sale, notice to occupant, affidavit for deed, and deed, were put in evidence.

Two objections are urged against the sale,—first, as the plaintiff claimed to be owner, he was bound to pay the taxes, and could not acquire a tax title, and rely upon it as title to the premises. If the plaintiff had been in the actual possession of the land under claim of title, the law would require him to pay the taxes, and it being his duty to do so, it may be true that in such case he could not profit by a disregard of a legal duty, by allowing the land to go to sale, and thus acquire a tax title. But the plaintiff was not in the possession of the land, and he did not have title, as we have shown, and he was under no obligation to pay the taxes on land he did not own, and being under no obligation to do so, we see no reason why he might not purchase a tax title on the land, and rely on such title, as well as any other person not interested in the premises. Seaver v. Cobb, 98 Ill. 200.

The second objection urged, is a variance between the notice of the application for judgment, and the judgment, as respects a description of the premises. In the delinquent list, judgment and precept, the premises were described as follows, which we understand to be the correct description,—the tract first described being the one under consideration, no question having been raised as to the second tract:

We have not been able to find the publication notice in the record, but, in the argument, the description of the premises in the notice is conceded to be as follows: “Except 12r6^- acres in the southeast corner of sub-lot 1, lot 1, in north section Robinson’s reserve. ” Whether there may be a variance between the description in the notice and judgment, we do not regard as a question of any importance. The real question is, whether the premises are sufficiently described in the notice, — whether they were described in such a manner that the owner, in reading the notice, might ascertain, from the description, that an application would be made for judgment against his lands if the taxes were not paid. If the lands are not described in such manner that they may be known or identified from the description contained in the notice, the publication of notice required by the statute might as well be omitted. We regard the description of the land as one of the essential elements of a notice, and unless the notice describes the land in such a manner that it may be identified from that description, the court had no j urisdiction to render a judgment against the land. Here, the judgment was rendered against sub-lot 1, lot 1, in Eobinson’s reserve, except 12^0- acres in the south-east corner, while the notice informed the owner that application for judgment would be made against a tract of land described as follows: “Except 12t6^ acres in the south-east corner of sub-lot 1, lot 1, in north section Eobinson’s reserve.” It is manifest that the description contained in the notice describes no lands. It is meaningless, and void for uncertainty, as it reads; and we are aware of no rule under which a court could properly reject anything contained in the notice, or add anything thereto, for the purpose of curing its defects. The notice being deficient, the court had no jurisdiction to render judgment against the land. (The People v. Dragstran, 100 Ill. 286.) It therefore follows, if the court had no jurisdiction, no title passed under the tax sale. The court did not, therefore, err in excluding the tax proceedings from the evidence.

The judgment will be affirmed.

T 7 . » , Judgment affirmed.

Mr. Justice Sheldon,

dissenting:

The cause was submitted to the court below for trial, without a jury. The plaintiff offered in evidence the following: The Indian treaty; a patent from the United States to Alexander Eobinson, for land which included the tracts in controversy; a partition'between Alexander Eobinson and his children, wherein there was set off to Joseph Eobinson, one of the children, the lands in controversy, made February 18, 1847; a warranty deed of August 3,1858, duly recorded, conveying, for the consideration of $4100, from Joseph Eobinson and his wife, to John F. Horton, the lands last named, to which deed is appended the approval of the President of the United States, dated January 21, 1871; an administrator’s deed, from tlie.administrator. of the estate of- Horton, to Moses. W. Baer, dated October 16, 1863, consideration $318.53, duly recorded, conveying said lands,—the deed having been made, in pursuance of an order of s°ale for payment of debts of said estate, made by the county court of Cook county. Then followed several intermediate conveyances of the premises, by warranty deeds, down to a warranty deed dated November 10, 1866, recorded November 23,1886, from Henry H. Dyer and wife, to Aquila H. Pickering, the plaintiff, conveying, for the consideration of $1600, the same premises. At the close of the plaintiff’s evidence, the defendants’ counsel, without offering any evidence, moved the court that the plaintiff’s testimony be excluded and the case dismissed, on the ground that the foundation of the plaintiff’s title fails, in that the deed from Joseph Robinson to Horton, made in 1858, was made in direct violation of the terms of the patent as to obtaining the approval of the President of the United States, which motion the court sustained, and plaintiff excepted.

The plaintiff’s counsel requested the court to hold the proposition of law, that it was not necessary to apply to the President of the United States for leave to convey; that the President had power to approve any deed Joseph Robinson might make, subsequent to its execution and delivery, and that such approval would make the deed valid. The court refused to so hold, to which the plaintiff excepted, and after overruling a motion for a new trial, the court gave judgment in favor of the defendants.

Joseph Robinson held the absolute fee in the land in question, under a patent from the United States, with the simple qualification that he or his children or heirs should not lease or convey the land without the permission of the President of the United States. We have in the ease a warranty deed of the land, for a valuable consideration, made by Robinson, with an approval thereof by the President of the United States indorsed upon the deed. This, it is thought, effectuates a conveyance of the land from Robinson, and notwithstanding the fact that the approval of the President was not obtained .until at the considerable length of time which here appears, after the making of the deed. There appears ,the permission of the President, and that fulfills the condition for the making of the conveyance. This condition was designed for the benefit of the Indian, as a safeguard of his interest against fraud, imposition, and his own improvidence, in the disposition of his land. ■ A supervisory care, in this respect, it was thought best should be exercised; and the measure of guardianship which it was seen fit to provide, was the President’s permission to a conveyance of his land by the Indian. This granting of permission was a duty imposed upon the President, and no one else. How and when he should perform it, was for him to determine, and not for a court to adjudge. No time or form of granting the permission was prescribed. The President assumed to act in the discharge of the duty which was imposed upon him, by giving his sanction to the conveyance. Whether it was proper for him to do so at such a length of time after the making of the deed, was, it is conceived, for his sole determination.

A similar view was taken in respect of a like provision in the case of Ex dem. Godfrey v. Beardsley, 2 McLean, 412, where the permission was given before the deed was made. Justice McLean there said: “Neither the treaty nor any law prescribes the form in which this sanction (permission) should be given. The treaty imposed the duty upon the President, and he could execute it in such form and manner as his discretion should dictate. * * * Except by permission of the President, Pierre Moran could not convey this land. That permission was obtained before the deed was executed. Now, whether it would have been more judicious to have withheld the sanction until the execution of the deed, is a matter about which differences of opinion may exist. But whether given before or after the deed, it is equally within the power of the President. ”

In Jackson v. Hill, 5 Wend. 532, where, in order to the validity of a deed made by an Indian, the approbation of the surveyor-general was required by the law of New York, it was held that a deed made without such approval, but subsequently approved, was good from the time such approbation was in fact given. And see, to same effect, Murray v. Wooden, 17 Wend. 531.

I think the court erred in its rulings, and that the judgment should be reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    The Board of Supervisors of Champaign County v. The Towns of Condit and Newcomb.

      Filed at Springfield March 23, 1887.

      1. Bridges—county aid—right of a town to county aid, as depending on levy of tax by the former. The right of a town, under section 19 of the B.oad and Bridge act of 1883, (Bey. Stat. chap. 121, sec. 19,) to an appropriation from the county treasury of one-half of the cost of a bridge, where its cost is more than twenty cents on the one hundred dollars of the latest assessment roll, and such town has levied a road and bridge tax for the amount of sixty cents on each one hundred dollars, directed by law to be raised, will not be defeated by the fact that such town may have adopted the labor system, provided it has levied road and bridge taxes in all amounting to not less than sixty cents on each one hundred dollars’ valuation of taxable property.
    2. Same—of the proof required—notice—presumption. A county board will not be justified in refusing an application, on behalf of a town, for aid in the construction of a bridge, for the want of formal proof of the facts alleged in the petition. The destruction of a former bridge, and the necessity of rebuilding the same without delay, being matters of public notoriety, notice thereof to the county board will be presumed, without proof.
    3. So when the commissioners of highways present their petition for county aid in rebuilding a bridge, to the county board, showing the destruction of the bridge and the public necessity for replacing it without delay, and the letting of a contract, according to law, for the building of a new one, and file affidavits and estimates of its cost, as required by section 19 of the Boad and Bridge act, this will make out a prima facie case entitling them to the relief sought. If the county board have any doubts as to the truth of any of the allegations of the petition, they should investigate the matter. As to the levy of the necessary taxes by the town, they should inspect the public records.
    4. Mandamus—of the proof allowed. On the hearing of a proceeding by mandamus to compel a county board to aid a town in building a bridge, the petitioners will not be restricted to the evidence adduced by them before the county board, but they may support their petition by any proper evidence.
    5. Error wild not always reverse. In a proceeding by mandamus to compel a county board to appropriate a sum in aid of towns in rebuilding a bridge, a judgment granting the relief sought will not be reversed for errors in the rulings of the trial court, when the admitted facts clearly justify the judgment.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Francis M. Wright, and Mr. J. W. Sims, for the appellant : '
    When the duty to be performed depends upon the judgment or opinion of the person by whom it is to be discharged, this writ will not lie. St. Clair County v. People, 85 Ill. 396; School Inspector v. Grove, 20 id. 526; People v. Hilliard, 29 id. 413; City of Ottawa v. People, 48 id. 233.
    The writ lies to subordinate tribunals to compel them to act when it is their duty to act, but never to require them to decide a particular way. People v. Dental Examiners, 110 Ill. 180; People v. Troy, 78 N. Y. 33; People v. McCormick, 106 Ill. 184.
    The levy of a road tax Under section 83 of the Boad law, is not a compliance with section 19 of the act. They provide for separate and distinct taxes. Suppiger v. People, 9 Bradw. 290; People v. Suppiger, 103 Ill. 434.
    The town must raise its half of the cost before asking aid, and the county hoard may investigate whether it has. Supervisors v. People, 12 Bradw. 210; 110 Ill. 577.

      Upon the point that the town must first provide for one-half of the necessary expenses of the bridge, see Supervisors v. People, 16 Bradw. 305. And upon the point of the power of the commissioners to incur the debt without a vote of the people, see Highway Comrs. v. Hamilton, 15 Bradw. 412; Town of Harwood v. Hamilton, 13 id. 358; Prince v. City of Quincy, 105 id. 138, 215.
    Mr. J. L. Ray, and Mr. J. B. Mann, for the appellees:
    The law, (sec. 19,) in case of an emergency, authorizes the commissioners to huild the bridge before the meeting of the county board, and afterward apply for aid.
    A road tax payable in labor is as much a road tax as if payable in money; and in this case the town has levied the, requisite tax.
    The relators have shown every fact necessary to entitle them to the writ.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The commissioners of highways of the towns of Condit and Newcomb, acting in concert, presented two petitions, made out in their respective names and relating to their respective towns, but in all other respects alike, to the board of supervisors of Champaign county, at their regular annual meeting in September, 1885, praying the board to make an appropriation out of the county treasury, of $2750, for the purpose of defraying one-half of the estimated cost of rebuilding a bridge over the Sangamon river, where the same is crossed by a public highway running north and south on the township line dividing the two towns. The board of supervisors denied the petition, and refused to make the appropriation prayed, whereupon the two towns commenced an action of mandamus in the circuit court of Champaign county, against the county board, to compel it to make the appropriation in question. The cause, by consent of parties, was heard before the court without a jury, resulting in a judgment and order awarding the writ as prayed, which having been affirmed by the Appellate Court for the Third District, the board of supervisors appealed to this court.

The whole proceeding, from its inception with the commissioners of highways of the two towns, is based chiefly upon the 19th section of chapter 121 of the Revised Statutes, entitled “Roads and Bridges,” which is as follows: “When it is necessary to construct or repair any bridge over a stream * * * on a public road in any town, or on or near to or across a town line, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid; and if the foregoing facts shall appear, the county board shall appropriate from the county treasury a sum sufficient to meet one-half the expenses of the said bridge, * * * on condition that the town asking aid shall furnish the other half of the required amount: * * * Provided, however, that before any bridge, * * * contemplated as above, shall be constructed or repaired under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same, and attach thereto their affidavits that the same is necessary, and will not be more expensive than is needed for the purpose desired, and such estimate and affidavit shall be filed with the petition: Provided, in case of some emergency arising from the sudden destruction or serious damage to a bridge, * * * when delay in * * * rebuilding would be detrimental to the public interest, such petition to the county board may be presented during the progress of the work or after its. completion, and if the facts appear as contemplated by this section, then the •county board shall appropriate one-half of' such cost, with like conditions that the town pay the other half. ”

We do not deem it necessary to set out in extenso the petition or petitions presented to the board of supervisors, and ■embodied in the petition for the mandamus. It is sufficient to state, that the averments therein, in our judgment, clearly brought the case, as to both towns, within all the provisions of the section of the statute above cited, including both provisos.

As the Appellate Court has affirmed the judgment of the trial court, it must have found that the judgment was warranted by the facts, and also that the rulings upon the propositions of law submitted were either correct, or that the errors, if any intervened, were not of so serious a character as to require a reversal. So far there can be no question.

We do not deem it necessary, or, indeed, proper, to consider in detail, as counsel have seen fit to do, the rulings of the trial court upon the various legal propositions submitted to it. The several provisions of the statute referred to, and by which the case is to be governed, when taken in connection with the undisputed facts as they appear of record, in our judgment afford a complete answer to every objection urged against the rulings of the trial court which are of sufficient importance tó require any serious consideration. But even conceding some of the rulings to have been erroneous, we would not, upon the admitted facts, be warranted in reversing for that reason.

The chief difficulty in this case grows out of the fact that the town of Newcomb has adopted the labor system of taxation for the purpose of maintaining its roads, as provided for in the 80th section of the act in question, whereby such of the tax-payers as desire, may pay the road tax in labor; but they are not bound to do so. This tax is levied and assessed as a separate tax against the property of the tax-payers, and if not paid in labor, its payment in money is enforced, like any other tax, as will be seen by reference to sections from 83 to 123, inclusive. Under the 83d section, the town of Newcomb levied a tax of twenty-five cents on each one hundred dollars’ worth of taxable property, the maximum limit being forty cents on the hundred. It also levied a tax of forty cents on the hundred, under section 13 of the same act, for bridge purposes, and for the payment of any outstanding orders drawn by the highway commissioners on the treasurer. The aggregate amount of these two levies and assessments, it will be perceived, is sixty-five cents on the one hundred dollars. Now, if this town had not adopted the labor system, these two taxes could only have been levied and assessed under the 13th section just referred to, and could not have exceeded sixty cents on the one hundred dollars. That section is as follows : “At the meeting immediately preceding the annual meeting of the county board, the commissioners shall determine what per cent of tax shall be levied on the property of the town for road and bridge purposes, and for the payment of any outstanding orders drawn by them on their treasurer, which levy shall not exceed sixty cents on each one hundred dollars.”

Now, it is contended by appellants, that because the town of Newcomb did not levy the full sixty cents on the one hundred dollars, under this section, it is not entitled to the benefits of the 19th section, although, including its road tax, which had to be levied separately, under section 83, the town has levied altogether more than sixty cents on the one hundred dollars for the very purposes specified in said 13th section, the only difference being that the road tax is separated from the tax for bridge purposes, and for the payment of the commissioners’ outstanding orders on the treasurer. The construction contended for would manifestly operate unjustly and oppressively upon towns which have adopted the labor-system, in seeking aid from the county in the construction of bridges, as contemplated by the 19th section of the act in question. In determining whether they were entitled to aid, they would in no case get any credit for the road tax. This case fully illustrates the principle. Here, the town of New-comb, although it has levied, under two sections of the statute, a tax of sixty-five cents on the one hundred dollars, for certain specified purposes, under the construction contended for is entitled to no relief at all, whereas, if it had not adopted the labor system, a total tax of sixty cents for the very same purposes, levied under section 13, would clearly have entitled it to relief. We can not give our sanction to such discrimination between towns as that would be.

It is further objected, that the board of supervisors properly refused to make the appropriation because there was no formal proof made of the facts in the petition. This objection is not tenable. The petition showed that the former bridge had been swept away and destroyed by a flood some two months before that time, and the urgent necessity of having it replaced without delay. These facts were matters of public notoriety, of which the board could not have been ignorant. The petition also showed that the new bridge had been let out to contract, in the manner provided by law, and the same was accompanied with the affidavits and estimates of the cost of the work, as provided by section 19. The matter thus presented by the towns, through their commissioners, acting as public officers, made out a prima facie case. If the supervisors had any doubts as to the truth of any of the allegations in the petition, they should have investigated the matter. So far as the tax levies of the two towns are concerned, they were all matters of record, which, with ordinary care and diligence on the part of the supervisors, might easily have been verified by the records themselves.

It is apparent, from the record before us, that this whole controversy has resulted from the fact that the supervisors, in looking up the tax levies, overlooked the road tax of twenty-five cents on the one hundred dollars, levied by the town of Newcomb. When that fact was brought to their knowledge, as it was on the trial, they should have put an end to the mandamus proceeding by signifying their willingness to make the appropriation, as they had a right to do.

It is further objected, that the court erred in receiving any evidence in support of the petition in this case which was not offered before the board, of supervisors. The objection is without force, and is unsupported by authority. In short, there is, in our opinion,, nothing substantial in the defence, and still less to commend it to favor.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Charles L. Roane v. John H. Baker et al.

      Filed at Springfield March 23, 1887.

    1. Conveyances—acknowledgment of deed—whether essential. In this State, a deed or mortgage is valid, as between the parties, without being acknowledged; and its execution may be proved by the testimony of any one who saw the same executed, or by the admissions of the grantor, or by any competent evidence.
    2. Same—delivery—and of acknowledgment after delivery. A delivery of a deed before its acknowledgment will be good in this State, and its acknowledgment some time after its date will not prove that it had not been executed and delivered before that time.
    3. To determine whether there has been a delivery of a deed or mortgage, it must appear, first, that the grantors intended to part with their title; and second, that the control of the instrument passed from the grantor to the grantee.
    4. The purchasers of a lot, at the time of the execution and delivery of the deed to them, on June 14, 1882, executed and left with the grantor their mortgage on the same property, securing the payment of a part of the purchase money, promising to get the wife of one of them to execute the same, which was not done until November 18, 1882, when the same was acknowledged hy the mortgagors and the wife: Held, that the mortgage took effect on the day of its date, when it was left with the mortgagee, and that the subsequent acknowledgment only furnished additional evidence of the execution and delivery of the mortgage which had already taken place.
    5. Priority op ríen — as between a mortgage for purchase money, and a preexisting judgment. A mortgage given for the purchase money of land, executed at the same time the deed is executed to the mortgagor, takes precedence of a then existing judgment against the mortgagor, even though the mortgage may not be recorded for five months after its execution.
    6. The owner of real estate sold the same under an agreement that a portion of the purchase price was to be secured by a mortgage on the lot. The lot was conveyed June 14, 1882, at which time the purchasers executed their mortgage on the property to secure the portion of the price as agreed upon, and it was handed to the mortgagee, but not being signed by the wife of one of the mortgagors, the mortgagee kept the same from the record, waiting for her signature, and the acknowledgment of the mortgage by the makers thereof. The deed was immediately recorded, but the mortgage was not recorded until November 20, 1882. On bill to foreclose the mortgage, a judgment creditor of one of the mortgagors, whose judgment had been recovered before the deed and mortgage were executed, sought, by cross-bill, in a suit to foreclose, to have his judgment lien on his debtor’s interest first satisfied out of the property: Held, that the mortgage was entitled to precedence over the judgment creditor’s lien; but that if the judgment creditor had purchased the property of his debtor, and paid for the same without notice of the mortgage, he would have taken precedence over the mortgage.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Crea & Ewing, for the appellant.
    Messrs. Eden & Clark, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court:

On June 14,1882, appellant sold to W. A. Short and Amos Short, for $2400, a store building and lot, twenty feet wide and ninety-two feet deep in Sullivan, Moultrie county, Illinois, and on that day made a deed conveying the property so sold. On the same day, a mortgage to secure $1900 of the purchase money was drawn by the same attorney, who drew the deed, and was signed by W. A. and Amos Short. Amos Short seems not to have been a married man, but W. A. Short had a wife, named Eliza E. Short. The mortgage was given to secure purchase money, and, hence, it was not necessary for Mrs. Short to sign it, as she could have no dower in the premises, as against the mortgagee. Appellant, however, labored under the impression, that the signature of Mrs. Short was requisite to release her supposed dower, and, upon the statement being made to him, that she was sick and would be unable to acknowledge the instrument before a notary for several days, he placed the mortgage in the show-case in his store, and waited until she should sufficiently recover to be able to sign it. He and his wife acknowledged the deed on June 15, 1882, and he delivered it to W. A. Short upon the promise of the latter, that he would bring his wife in a few days to acknowledge the mortgage. When appellant so delivered the deed to W. A. Short, he, at the same time, received the mortgage, signed by W. A. and Amos Short. W. A. Short failed to keep his promise, and the mortgage was not signed by Mrs. Short, nor acknowledged by any of the makers until November 18, 1882, nor was it recorded until November 20, 1882. Appellant swears, that, after he had delivered the deed, he “asked W. A. Short at least a dozen times to have his wife come in and execute the mortgage. ” W. A. Short not only failed to keep the promise, which he had made to get possession of the deed, and thereby kept the mortgage from being recorded for a period of five months, but he proceeded almost immediately to place the deed on record, having recorded it on June 17, 1882.

On April 21, 1881, John H. Baker, one of the appellees, recovered a judgment for $590 and costs against W. A. Short and one Joseph GL Baker, the latter of whom was insolvent and left the State in the fall of 1881. Execution was issued upon this judgment on May 21, 1881, and returned unsatisfied on June 7,1881. Appellee, Baker, claims that the lien of his judgment against the undivided one-half of the property, owned by W. A. Short, is prior to that of the purchase money mortgage, held by appellant.

This suit was instituted by appellant, who filed his bill in the circuit court of Moultrie county against the Shorts, Baker and others to foreclose the mortgage, above described. The only allegation in the bill in reference to Baker’s interest is the general one, that Baker and others “claim to have some interest in said premises, the nature of which is unknown to your orator, but whatever interest they have, the same is subject to the claim of your orator.” Baker filed an answer to the bill, admitting that the notes, secured by the mortgage, were given for purchase money, but denying that the mortgage was executed and delivered on June 14, 1SS2, and alleging, “that said mortgage was executed on the 18th day of November, 1882, and not prior to that time,” and was recorded on the 20th day of November, 1882. The answer sets up the judgment and execution, above named, and alleges that “his” (Baker’s) “said claim is prior to the claim of complainant and should be first satisfied out of the interest therein of said W. A. Short.” The answer further charges, that appellant is “not entitled to enforce a vendor’s lien upon said land, because respondent alleges the fact to be, that said complainant, when he took said notes, did not rely upon a vendor’s lien as security for the purchase money agreed to be paid, but he waived the lien as vendor, and accepted, as security for said purchase money, said E. E. Short and Elizabeth Short, both of whom, under the agreement of the parties, signed each and all of said notes as sureties, and afterwards, on, to-wit, the 18th day of November, 1882, said complainant took said mortgage as a further and additional security upon said notes.”

Baker filed a cross-bill, asking that his answer “be taken and considered a part of his cross-bill, ” alleging “that his said claim is prior to that of complainant and should be first satisfied out of the interest therein of W. A. Short,”' and 'praying that said interest be first sold and the proceeds applied to the payment of said judgment. The decree recites, that it was understood and agreed between defendants and complainant in original bill, “that the issue be regarded as joined upon the cross-bill filed herein.”

In this State, a deed is valid, as between the parties to it, without being acknowledged. (Semple v. Miles, 2 Scam. 315; McConnel v. Reed, id. 371.) Such unacknowledged deed may be proven by the testimony of any one, who saw its execution, or by the admissions of the grantor therein^ or by any competent evidence. (Dundy v. Chambers et al. 23 Ill. 369.) The signature of Mrs. E. E. Short to the mortgage in this case being unnecessary either to pass dower or for any other purpose, the mortgage was complete, as between the parties to it, when signed by the two Shorts. It was so signed by them and was by them delivered to and left with appellant, at the same time-at which appellant delivered to them the deed. The mortgage and the deed are both .dated on the same day. Tiederman on Real Property, at section 812, says: “A delivery before the acknowledgment of probate will be good, particularly in those States, where the acknowledgment is. not a requisite to the validity of the deed. ” In Darst v. Bates et al. 51 Ill. 439, it is said of a trust deed, dated October 13, 1856: “It is true, that it was not acknowledged .until the 30th of that month, but that does not prove, that it had not been executed before that time.” In Walker v. Walker et al. 42 Ill. 311, it was held, as to a deed, which had been signed and acknowledged by both husband and wife, that the delivery of the deed to the grantee therein was good, as against the husband, so as to pass his title, but not good, as to the wife, so as to pass her dower. It was, also, so held in Burns and wife v. Lynde, 6 Allen, 305.

To determine whether there has been a delivery of a deed or mortgage, it must appear, first, that the grantors intended to part with their title, second, that the control of the instrument passed from the grantors to the grantee. (Rivard v. Walker, 39 Ill. 413; Masterson v. Cheek, 23 id. 72; Bryan v. Wash, 2 Gilm. 557.) In the ease at bar, the Shorts parted with the control of the mortgage, which they had already signed, by leaving it with appellant, the mortgagee. That it was their intention to part with their own title is apparent not only from the fact, that they parted with the control of the mortgage, but from the fact, that they regarded the supposed dower of Mrs. Short, as being the only interest remaining to be vested in appellant. When they acknowledged the mortgage on November 18,1882, they thereby added nothing to the execution of it; they merely furnished, by such acknowledgment, additional evidence of the execution, which had already taken place. We are, therefore, of the opinion, that the deed from appellant to the Shorts, and the mortgage for part of the purchase money from the Shorts to appellant, which are both dated on the same day, were both executed and delivered at the same time.

Although the apparent title, as shown by the record, was in W. A. Short from June 17 to November 20, yet the real title during that time, was in appellant, subject to be defeated by the payment of the mortgage.

The theory of the cross-bill is, that neither the real nor apparent title was in the purchaser until November 18. The cross-bill alleges, that the mortgage was not executed until November 18; as matter of fact, it was executed on June 14, or between that date and June 17. The cross-bill alleges, that, on November 18, appellant took the mortgage, as a further and additional security to the notes. The proof shows, that appellant accepted the mortgage to secure $1900 of the $2400, for which the property was sold, and agreed to accept one note for $500, signed by E. E. Short and Elizabeth Short, as sureties in lieu of the cash payment. He only desired the $500 note, not embraced in the mortgage, to be signed by outside parties, as sureties. When, however, the notes were returned to him, they were all signed by the sureties, and so, he Receipted them, as signed. The original intention was to have only one note secured by other names. As to the notes, named in the mortgage, the mortgage was relied on as the security, and the other signatures were accepted, because offered, but were not insisted upon. It, therefore, follows, that two very material allegations of the cross-bill, as to the date of the execution of the mortgage, and as to the mortgage being taken merely as an additional security to the notes, are not sustained by the proofs.

In Curtis v. Root, 20 Ill. 53, it is said: “It is a principle of law too familiar to justify a reference to the authorities, that a mortgage, given for the purchase money of land and executed at the same time the deed is executed to the mortgagor, takes precedence of a judgment against the mortgagor. The execution of the deed and of the mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands and vests in the mortgagee without stopping at all in the purchaser, and, during such instantaneous passage, the judgment lien can not attach to the title. ” It is true, that the judgment, which was affirmed in Curtis v. Root, 20 Ill. 53, was afterwards reversed in the same case, as reported in 28 Ill. 367 and 38 id. 192, upon other grounds, but the case in 20 Ill. still stands, as authority for the doctrine announced in the above quotation, where the deed and purchase money mortgage are executed at the same time. Freeman on Judgments, sec. 360, says: “A mortgage, trust deed or other instrument, given to secure the purchase money, takes precedence over a prior judgment lien against the vendee.” Dusenbury v. Halbert, 59 N. Y. 541.

If the doctrine, here laid down, only holds good, when the purchase money mortgage is recorded before the deed to the vendee is recorded, or at the same moment of time when such •deed is recorded, it amounts to nothing more than a statement •of what is true of any kind of a mortgage, whether given for purchase money or for any other consideration. In other words, it does not impart to a purchase money mortgage any ■element of superiority over a mortgage, which is not given for purchase money. And, if it he admitted that the doctrine in •question is ever applicable in any case, where the recording of the deed precedes 'the recording of the mortgage hy any period of time at all, what rule is to be laid down as to the length of time, that must elapse between the recording of the •deed and the recording of the mortgage, before the lien of the judgment will be allowed to attach ?

In Elder v. Derby, 98 Ill. 228, the'purchase money mortgage was not recorded for several months after the recording ■of the deed to the vendee, and the question was whether the title of the vendee under the deed should inure to the benefit ■of the grantee in a former mortgage with covenants of warranty executed by such vendee, as against the purchase money mortgagee. It wuis there said: “If the recording laws are held operative in such a case as this, by what means could the owner sell and secure the purchase money by a mortgage, unless it was executed and recorded before the conveyance was made to the purchaser? Otherwise there must be a space of time between the execution of the conveyance and the recording of the mortgage, and no matter how short the period, the doctrine contended for would let in a prior mortgage, that was not a lien on the title thus sold and conveyed. Such a construction of the recording laws would render the sale of lands on time, with a mortgage executed back to the vendorj impracticable in many cases.”

This proceeding is in a court of equity. The judgment creditor here, without being any worse off than he was before the title 'was put in W. A- Short, without having made any advance upon the strength of such title, without having even issued execution or made any levy, seeks the enforcement of a purely legal and technical lien through a cross-bill, which prays for affirmative relief, against property which has not been paid for by its apparent owner. “It is true that” appellant “might have given a bond for a conveyance and thus have avoided all question as to priority of lien, but in equity should not this be considered as the same in substance ? The vendor did not intend to release the land from a lien for the purchase money, and supposed by taking the mortgage he had effectually secured the lien, and, in equity, we think he did, and that it should be protected. ” Elder v. Derby et al. supra.

In Stanley v. Valentine, 79 Ill. 544, where a mortgagee executed a release to the mortgagor and placed it in the hands of a third party, to be delivered upon the performance of certain things to be done by the mortgagor, which the mortgagor never performed, and the release was never delivered to h'im, but, by accident or mistake, was placed upon record, it was held, that the judgment creditors acquired no rights by the recording of the release, and stress was laid upon the fact, that “the judgment creditors had advanced no money, given no credit, or done any act, by which they changed their attitude to the case.”

Freeman in his work on Judgments, sec. 360, says: “While a judgment lien against a grantee is ordinarily subject to any lien in favor of the grantor for purchase money, whether recorded or not, yet an exception probably exists in favor of a judgment debtor (creditor,) who has advanced money, relying as security for his payment upon the apparently unincumbered title of the debtor in real estate.” Hulett v. Whipple, 58 Barb. 224.

If appellee had purchased the property from Short and paid him money for it under the belief that Short was the real owner of the property, the apparent title to which was shown to be in him by the records”, then his claim would have precedence over the mortgage of appellant. If appellee had advanced any money, or incurred any costs, or taken any proceedings involving expense to himself, his rights would not be postponed to appellant’s purchase money mortgage. But he obtained his judgment more than a year before the deed was made to W. A. and A. Short, and not only advanced no money and parted with no consideration by reason of the apparent title being in W. A. Short, but took no steps whatever towards the enforcement of his judgment, subsequently to June 17,1882, until after the filing of this bill to foreclose.

We think, that under all the circumstances of this case, appellant’s purchase money mortgage should have precedence over the lien of the judgment of appellee, Baker.

The judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings in conformity with this opinion.

Judgment reversed.


author: Mr. Justice Craig

text:
    Jasper Crews v. The People of the State of Illinois.

      Filed at Springfield March 23, 1887.

      1. Continúanoe—absence of witnesses—requisites of affidavit. A defendant can not assign for error the refusal of his motion for a continuance, on the ground of the absence of a witness, when such witness appears during the trial and is examined on the part of the defence.
    ; 2. An affidavit for a continuance made by the defendant in a case of homicide, based on the absence of certain witnesses for the defence, which fails to show that they are not absent by his procurement or consent, and which also fails to show the materiality of the facts proposed to be proven by the witnesses, is insufficient for both reasons stated, and there is no error in refusing to continue the case upon such an affidavit.
    3. CkiminaIj law—reasonable doubt—as to particular facts. The fact that a jury may entertain a reasonable doubt in regard to some particular fact required^to be proved in order to convict, will not, of itself, call for an acquittal. A reasonable doubt requiring an acquittal, is one as to the guilt of the accused on the whole evidence,_ and not as to any particular fact.

      4. So on the trial of one upon the charge of murder, the court refused to. instruct the jury, that if they had any reasonable doubt as to whether the defendant, at the time of the shooting, was under reasonable apprehension and honest fear that the deceased intended and was about to inflict upon him. great bodily harm, and that he fired the shots under that belief and in self-defence, they should acquit: Held, that the instruction was properly refused.
    5. Instruction—no need of repetition. Where the court, on the trial of one for murder, gives an instruction for the defendant containing a full and comprehensive statement of the law of self-defence, there will be no-error in refusing others substantially the same, differing only in form.
    Writ of Error to the Circuit Court of Union county; the Hon. Robert W. McCartney, Judge, presiding.
    Mr. W. S. Day, and Mr. P. E. Hileman, for the plaintiff in error.
    Mr. George Hunt, Attorney General, for the People.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment, in the circuit court of Union county, against Jasper Crews, for the murder of Calvin Jones on the 25th day of May, 1886. The indictment was found by the grand jury at the September term, 1886, of the circuit, court of Union county, and a trial was had at the same term, resulting in a verdict finding defendant guilty as charged in the indictment, and his term of imprisonment was fixed at twenty-five years in the penitentiary. For the purpose of reversing the judgment of the circuit court, this writ of error was sued out by the defendant. .

The first error complained of, is the decision of the court-overruling the defendant’s motion for a continuance to procure the evidence of certain witnesses named in the affidavit. One of the witnesses appeared and was examined on the trial, and so far as this witness is concerned, the defendant can not complain of the decision of the court, as he was in na manner injured by the ruling. As respects the other three witnesses named in the motion, the affidavit does not negative the fact that they were absent by defendant’s procurement, and upon this ground, alone, the decision may be sustained. But in addition to this, we do not think the materiality of the facts proposed to be proven sufficiently appears by the affidavit, and upon this ground it was not sufficient.

There is no great conflict in the evidence, in regard to the facts under which the murder was committed. The difficulty which resulted in the shooting of Jones by the defendant, was seen by a number of witnesses, who were called, and testified on the trial. It appears that Jones0and the defendant, a few nights before the homicide, had a dispute about a matter of a trifling character, after which Jones had threatened to whip Crews, and he had also said to certain witnesses, that if Crews had a picture taken it would be a bloody one. Crews lived four or five miles from Alto Pass, where Jones was at work, and on the day the homicide occurred, as he (Crews) was on the road to Alto Pass, he stated that he was going up there to have that matter settled, and on the evening of the homicide he said he wanted John Collins “to see him a fair fight.” The defendant procured Collins to go with him, and went where Jones was at work, and brought on the difficulty. Before going, he had gone to his aunt’s, who resided in the place, and procured his revolver, which he had concealed in his pocket. The evidence shows, beyond a question, that Crews armed himself, took a friend with him, and went where Jones was at work currying a horse, with the intention of provoking a quarrel, which might induce Jones to fight. It is also plain, from the evidence, that when the defendant arrived at the place where Jones was, he used language to excite Jones and induce him to fight, and when Jones approached him with a small stick in his hand, defendant stood with one of his hands under his coat, on his revolver, and as soon as Jones struck or attempted to strike, the defendant drew his revolver and commenced shooting.

These, in brief, were the facts which the evidence disclosed, and upon which the jury found the defendant guilty, and so far as is shown by the-record, the verdict is fully sustained by the evidence.

It is also claimed, that the court erred in refusing defendant’s instructions Nos. 9, 10, 11, 17, 18, 19, 20, 21, 22 and 23. The purpose of instruction No. 9 was to inform the jury in regard to the law of self-defence. The court, however, gave defendant’s eighth instruction, which was a full and comprehensive statement of the law on that subject as follows:

“The court instructs the jury, that the law is: If a person is assaulted in such a way as to produce in the mind of a reasonable person a belief that he is in actual danger of losing his life, or of suffering great bodily harm, he will be justified in defending himself, although the danger be not real, but only apparent. Such a person will not be held responsible, criminally, if he acts in self-defence from real and honest convictions as to the character of the danger, induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger.”

After the giving of this instruction, no useful purpose could be gained by a repetition of the same thing in a different form, and it was not error for the court to refuse other instructions which were substantially like the one given.

What has been said in regard to No. 9 also applies to Nos. 17 to 21, inclusive. They are all a mere restatement of what is contained in No. 8.

The tenth instruction refused by the court, directed the jury, that if they have any reasonable doubt as to whether defendant, at the time of the shooting, was under reasonable apprehension and honest fear that deceased intended and was about to inflict upon him great bodily harm, and that he fired the shots under that belief, and in self-defence, then the jury must acquit. The fact that a jury may entertain a reasonable doubt in regard to some particular fact required to be proved, in order to convict a defendant of crime, will not, of itself, authorize an acquittal, as is implied in the instruction, but a reasonable doubt which will authorize an acquittal, is one as to the guilt of the accused on the whole evidence, and not as to any particular fact. Mullins v. The People, 110 Ill. 42; Davis v. The People, 114 id. 98.

Instruction No. 11 is liable to the same objection as No. 10.

As to instruction No. 22, the record contains no evidence upon which it could be predicated, and upon this ground the court was justified in refusing it. The evidence fails to show that there was a challenge or agreement to fight a fair fight, as seems to be assumed in the instruction.

As to refused instruction No. 23*, all that it contains, proper for the jury, is embraced in No. 8, and in one or two others of a similar import, and for this reason it was properly refused.

Objections, mainly of a technical character, have been urged against several of the People’s instructions, but upon examination they will be found to be substantially correct. At all events, they contain nothing calculated to mislead the jury. Indeed, after a careful examination of all the instructions, we do not believe that defendant’s case has been prejudiced by the ruling of the court on the instructions. On the other hand, if any fault was to be found with the- instructions, it would be based on the ground that they are more favorable to him than the facts of the case might "warrant.

Perceiving no error in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Hiram B. Burritt v. The Commissioners of State Contracts.

      Filed at Ottawa March 22, 1887.

    1. Joint resolution of the two houses of the General Assembly—as having the force of law—diverting appropriations from their appointed purpose. Under our constitution, the style of all laws must be, “Be it enacted by the People of the State of Illinois, represented in the General Assembly. ” And no act passed shall embrace more than one subject, and that must be expressed in the title.
    2. Every bill for an act must be read at large on three different days in each house, and printed before the final vote thereon, and can not become a law without the concurrence of a majority of the members elected to each house, and the vote must be taken by yeas and nays, on each bill separately, and after such passage every such bill must be signed by the Speaker of each house, and be presented to the Governor for his approval. These constitutional requirements are mandatory, and operate as limitations on the power of the legislature as to the mode in which laws shall be enacted.
    3. But a joint resolution passed and adopted by both branches of the legislature, which commences, “Besolved by the Senate, the House of Bepresentatives concurring herein, that, ” etc., providing for the purchase of books, etc., and has no title or enacting clause, and is not signed by the Speaker of either house, and is wanting in the, other essentials to a valid enactment as prescribed in the constitution, is not a law of the State, neither has it the force and effect of a law.
    4. The legislature is prohibited by the constitution from diverting to other uses, by joint resolution, appropriations made by law for specified purposes. Legislative appropriations for one purpose, or for two specific purposes, can not be applied to any other purpose whatever.
    5. Nor can the legislature, in the absence of an appropriation for that purl pose, provide by a joint resolution for the purchase of articles, whereby an indebtedness on the part of the State will be incurred, except when such debt is contracted for the purposes and in the manner pointed out in section 18, article 4, of the constitution.
    This was a petition, filed in this court, asking for issue of a writ of mandamus, on the grounds and for the purposes fully stated in the opinion of the court.

      Mr. B. M. Haines, and Messrs. McCartney & Casey, for the petitioner:
    A joint resolution has the force of law. People v. Tyndale, 47 Ill. 538; Swann v. Buck, 40 Miss. 268; State v. Bailey, 16 Ind. 46; McPherson v. Leonard, 29 Md. 377; Footprints of Time, 416.
    A joint resolution is the proper manner of expressing the will of a legislative assembly concerning mere temporary matters. Jefferson’s Manual of Parliamentary Practice, sec. 21; Barclay’s Digest of Parliamentary Practice, 1872, p. 113; Bancroft’s Footprints of Time, sec. 416; 3 Lalor’s Cyclopedia of Political Science, 89; Cushing’s Parliamentary Practice, secs.,752, 2403; Wilson’s Digest of Parliamentary Law, 161; May on Law and Usages in Parliament, 315.
    Joint resolutions are not prohibited by our constitution, and the General Assembly has every power that is not specially taken from it by the constitution.
    The petition in this case only asks that a ministerial body be required to perform a ministerial duty. Rev. Stat. chap. 127, sec. 1.
    Legislative construction of constitutional provisions should largely prevail in governing the actions of the courts under them. Session Laws, 1871 and 1872; id. p. 796; People v. Learned, 12 Hun, 626; Trammel v. Bradley, 37 Ark. 374; People ex rel. v. Dayton, 55 N. Y. 367; Hahn v. United States, 107 U. S. 402; United States v. Recorder, 1 Blatchf. 218; Polk v. Hill, 2 Overton, 118; Love v. Hinckley, Abb. Adm. 436; United States v. McDaniel, 7 Pet. 1; United States v. Graham, 110 U. S. 219; McKeer v. Delaney, 5 Cranch, 22; United States v. Lytle, 5 McLean, 9; Railroad Co. v. Railroad Co. 53 Pa. St. 20; Morrison v. Barksdale, Harp. (S. C.) 101; Insurance Co. v. Hoge, 21 How. 35; Rogers v. Goodwin, 2 Mass. 475; Packard v. Richardson, 17 id. 104; Plummer v. Plummer, 37 Miss. 185; Bailey v. Rolfe, 16 N. H. 247; Chestnut v. Shane, 16 Ohio, 599.

      This question was thoroughly investigated by the judiciary committee of the Senate before the joint resolution was finally passed. Journal of Senate, 1885, pp. 785, 798, 855, 864, 875; House Journal, pp. 945, 977, 1045, 1046; Calder v. Bull, 3 Dall. 386; Swann v. Buck, 40 Miss. 268; People v. Hatch, 33 Ill. 9; Brown v. State, 5 Col. 496; In re Manhattan, 82 N. Y. 142; Linsley v. Hubbard, 44 Conn. 109; Scanlan v. Childs, 33 Wis. 663; Solomon v. Carterville, 41 Ga. 157; People v. Allen, 1 Lans. 248; United States v. Gilmore, 8 Wall. 330.
    Mr. George Hunt, Attorney General, for the respondents:
    Resolutions, as expressive of the legislative will, are recognized but once in our State constitution, and then in a negative way. Art. 4, sec. 17.
    Whenever legislation may be accomplished by joint resolution, it must follow substantially the same procedure required for the passage of a bill. It must receive the executive approval, where a bill would require it, or be passed over the executive veto. Const. of the United States, art. 1; Story on Const, secs. 881-891; 6 Op. Attorney General, 680; Bouvier’s Law Dic. sub voce “Act;” Hollingsworth v. Virginia, 3 Dall. 378; State ex rel. v. Bailey, 16 Ind. 46; In re Picquet, 5 Pick. 64; Cushing’s Law and Prac. sec. 2403; Boyer v. Crum, 1 W. Va. 176.
    Whether a resolution is separate, concurrent or joint, must be gathered from its form. The resolution set forth in the petition has no title, and by its form or style it purports to be nothing more than a concurrent resolution, and there is no pretence that it was ever presented to the executive for his approval.
    In the discussion of this question we shall no doubt be met by the proposition that the legislature is supreme as to all legislative matters, and that it can do all things within its sphere, except where its powers are limited by the constitution. The action of the legislature is the expression of the will of the people, and it will not be denied that such will may be expressed on every subject, and for whatever purpose the legislature may choose.
    This resolution has not the force of law, because it has no title. The constitution (art. 4, sec. 13,) declares, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. ”
    Any resolution, bill or proceeding given the force of law, is an act. Without a title the resolution can not become a law, nor be given the force of law. This resolution has no title at all—hence its subject is not expressed in the title, and it has not the force of law. It has not the force of law, because it is not enacted under the proper style. The constitution (art. 4, sec. 11,).declares, that the style of the laws of this State shall be, “Be it enacted by the People of the State of Illinois, represented in the General Assembly.” This resolution is not enacted under any such form.
    Where enacting words are prescribed, nothing can be law which is not introduced by these very words, even though others, which are equivalent, are at the same time used. Gushing’s Law and Prac. 819, 820; Seat of Government case, 1 Wash. Ter. 115; May v. Rice, 91 Ind. 546.
    It has not the force of law, because not read at large on three different days in each house. Art. 4, sec. 13.
    The resolution is in direct conflict with the provisions of section 17, article 4, of the constitution, which says: “No money shall be drawn from the treasury, except in pursuance of an appropriation made by law, * * * and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution. ”
   Mr. Justice Shope

delivered the opinion of the Court:

The relator, Hiram B. Burritt, is shown to be a justice of the peace of Lake county, and files this petition, in his own behalf, as such officer, and in behalf of all town officers in counties under township organization, and of all justices of the peace in counties not under township organization, to compel the Commissioners of State Contracts to contract for and obtain, for the use of such town officers and justices of the peace, copies of a certain book known as “Haines’ Township Organization Laws, ” as provided in a certain concurrent resolution passed and adopted by the General Assembly at its session in 1885, and which resolution, it is averred, has all the force of law. The resolution referred to is as follows:

“Resolved by the Senate, the House of Representatives concurring herein, That the Commissioners of State Contracts be and they are hereby authorized and directed to contract for and obtain such number of copies of a book commonly known as ‘Haines’ Township Organization Laws,’ as shall be sufficient to supply seven copies to each organized township in this State in counties under township organization, for the use of the town officers thereof, and one copy for each justice of the peace in counties not under township organization, at the price of one dollar per copy, said book to contain the laws of Illinois on the subject embraced therein, in force July 1, 1885, the same to be of good paper, equal in quality to the best editions of said book heretofore published, and to be properly bound in a style satisfactory to said commissioners; said books to be distributed by the Secretary of State to the various counties in the State, in the same manner as the session laws are distributed, and furnished to the organized townships and justices of the peace as hereinbefore contemplated, the amount of the cost thereof to be paid out of the appropriation for printing and binding, or any other appropriation made for that purpose: Provided, the amount shall not exceed ten thousand dollars ($10,000.)”

It is averred, that the publishers and owners of the copyright of the book referred to, are ready and willing, and have offered, to enter into contract with the respondents to furnish such number of copies of the book as may be required under the resolution; and that respondents have heretofore, and still do, refuse to exercise the authority or to obey the direction in the resolution specified. It is also averred, that this book is of great value to the town officers and justices of the peace, because it contains full information concerning the laws in force pertaining to, and directions respecting the performance of, the duties of their respective'offices, and that by the refusal of the respondents to act in the premises, relator and the officers named are deprived of the information and assistance this book would afford them, and the whole public suffer injury and loss. The further averment is, that the obtaining and distribution of these books, in the manner-pointed out in the resolution, is a matter of much public interest and importance, and that obedience to and compliance with the directions contained in the resolution, is a public duty the respondents owe, as Commissioners of State Contracts, to the people of the State; and, finally, it is averred, respondents are, in respect of the duties imposed upon them by this resolution, ministerial officers, who can only properly be directed as to their duty by the General Assembly, by resolution of that body, and that direction to executive and ministerial officers by resolution of the General Assembly has become so established by usage and custom and general concurrence, as to have become a law by legislative and executive construction. To the petition respondents have interposed a demurrer.

This proceeding is predicated upon the assumption that this resolution is, to all intents and purposes, a law, to be taken and accepted by the court as the formal will of the legislature, constitutionally expressed, and effect given it as such,— in other words, that this resolution is a law of this State, obligatory and binding upon the persons named therein, and the court, and of controlling vitality and force in respect of its subject matter. It is true, the relator has attempted to draw a distinction between a joint resolution having the force of law, and a law; but the distinction is not perceived. To say that a resolution has the force of law, and yet is not a law, is a contradiction of terms. That which has the force and vitality of a law, is a law. If, then, this resolution is a law of this State, it was the manifest duty of respondents to obey it; and it is as clearly the duty of the court to compel obedience to it whenever the coercive power of the court is properly invoked.

It is not denied or questioned that the resolution under consideration is an expression of the legislative will upon the subject matter involved therein; but it is insisted that the power thus to express the legislative will, and to give to such expression the force and effect of law, is denied by the constitution. The constitution is the supreme law of the State, and is the permanent and fixed expression of the will of the people, in their sovereign capacity. By the constitution, the legislative power of the State is vested in a General Assembly, consisting of a Senate and House of Representatives, both elected by the people. (Art. 4, sec. 1.) And this legislative power is also constituted one of the three distinct, but coordinate, departments of the State government. (Art. 3.) But it would be absurd to assume that a department created by a constitution could possess the power to abrogate that which gave and continued such department in existence. (Phoebe v. Jay, Breese, 268.) The legislature is the creature of the constitution, and while the accepted American doctrine is, that in the exercise of the legislative function the legislature may do what is not forbidden, clearly it may not do that which is prohibited by the constitution under which it exists. “No proposition is better settled, ” said this court, in Field v. The People, 2 Scam. 79, “than that a State constitution is a limitation upon the. powers of the legislature.” See, also, Sawyer v. City of Alton, 3 Scam. 127; The People v. Marshall, 1 Gilm. 685; The People v. Reynolds, 5 id. 1; The People v. Salomon, 51 Ill. 49; Cairo and St. Louis Railroad Co. v. Warrington, 92 id. 157; Richards v. Raymond, id. 612; Winch v. Tobin, 107 id. 212.

If it be assumed that this resolution was passed and adopted by both branches of the legislature, and is a legislative act,— an expression of the legislative will,—the question for consideration is, does it possess, under the constitution, the force and vitality of a law. If the resolution does possess this force and vitality, it must be, as we have seen, because the constitution has not placed restrictions or limitations upon the legislative department in the exercise of its law-making power, inconsistent with the act under consideration. Or, stated conversely, if the constitution has not, by express provision or by necessary implication, provided the mode and manner by which the will of the people is to be crystallized into law, by requiring specific acts, steps and formalities to be observed by the legislative department, and, finally, the active concurrence of another of the coordinate departments of the State government, then, upon general principles, it might be said, that this resolution, being, in a derivative sense, the will of the people,—the people being, primarily, the source of all power,—is law.

Upon looking into the constitution, it will be observed that “The style of the laws of this State shall be: ‘Be it enacted by the People of the State of Illinois, represented in the General Assembly.’” (Art. 4, sec. 11.) This has been the “style” of _ the laws of this State since its organization. Then, “No aci hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” (Art. 4, sec. 13.) Every' bill for an act must, it would seem, have a title. (Binz v. Weber, 81 Ill. 288.) Then, too, every bill for an act must be read at large on three different days, in each house, and printed before the final vote thereon, (art. 4, sec. 13,) and can not become a law without the concurrence of a majority of the members elected to each house, and on its final passage the vote must be by yeas and nays, on each bill separately, (art. 4, sec. 12,) and having so passed both houses, every such bill must be signed by the Speaker of each house, (art. 4, sec. 13,) and before it can become a law it must “be presented to the Governor. If he approve, he shall sign it, but if he do not approve, he shall return it, with his objections,” etc. And this negative action of the executive department is potent enough to prevent the act from becoming a law, unless, speaking generally, the legislative department can again pass it by a specified increased vote. (Art. 5, sec. 16.) And, finally, “No money shall be drawn from the treasury except in pursuance of an appropriation made by law,: * * * and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution.” (Art. 4, sec. 17.) And appropriation bills must not only specify the object and purpose for which the appropriation is made, but for each purpose there must be a distinct amount, in distinct items and sections and the Governor may veto any one or more of such amounts and items. (Art. 5, sec. 16.)

The foregoing sections of articles 3, 4 and 5, of the constitution, are the only ones in that instrument prescribing the mode in which the will of the people, acting through the legislative and executive departments of the government, can become law. Being found in the constitution, if they are to be regarded as mandatory, they operate as limitations upon the power of the legislative department to give to its action, in any case, the force and effect of law.

That these various provisions, giving the form and mode by which, through the concurrent action of the legislative and executive departments, valid and binding laws are enacted, are, in the highest sense, mandatory,-can not be doubted. Jones v. Hutchinson, 43 Ala. 712; Moody v. The State, 48 id. 115; Supervisors v. Henan, 2 Minn. 330; Indiana Central Raihoay Co. v. Potts, 7 Ind. 683; Legg v. Mayor, 42 Md. 203; Turley v. Logan County, 17 Ill. 151; Spangler v. Jacoby, 14 id. 297; Ryan v. Lynch, 68 id. 160. Judge Cooley, in his work on Constitutional Limitations, says, (5th ed.) 156: “It is a necessary attribute of sovereignty, that the expressed will of the sovereign is law; and while we may question and cross-question the words employed to make certain the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have surrounded the expression, but do not. But when the legislative power .of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the. law-makers, and sometimes forms be-! j come of the last importance,—for, in such ease, not only is it' important that the will of the law makers be clearly expressed, but it is also essential that it be expressed in due form of law, since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect in the mode pointed out by the instrument which invests • them with the power, and under all the forms which that instrument has rendered essential.” And in the well considered case of State v. Platt, 2 S. C. 150, we find it said: “Under the constitution, the question, whether an act of legislation has the force of law, does not depend merely upon the constitutional majori- ¡ ties of the two houses having so determined, but upon the j performance of certain acts, in part legislative and in part j executive, and following each other in a certain order. By section 21, article 2, it must have been read three times, and on three several days, in each house,. It must have the great seal of the State affixed to it, and it must be signed in the Senate-House by the.President, of the Senate and the Speaker of the House of Representatives. By section 22, article 3, it must have been presented to the Governor, and have been approved and signed by him. * * * When these prerequisites are complied with, the act acquires the force of law, under the terms of the constitution. If either one fails, there can not be a compliance with the conditions upon which, under the express terms of the constitution, the force of the act, as law, depends. ” In the case under consideration, the allegation of the. petition is, that at the session of the General Assembly of .this State, held in the year 1885, “the following joint resolution was passed and adopted by said General Assembly, and the same then and there became, and is now, a joint resolution of the said General Assembly, and was then and thereby given, and now has, all the force of law, to-wit: ‘Resolved by the Senate, the House of Representatives concurring herein, That,’” etc., setting out the same in hcec verba.

Cases are not wanting where this court has presumed, in the absence of proof to the contrary, that certain constitutional requirements were observed. For example, in Spangler v. Jacoby, 14 Ill. 297, where it appeared the Speakers of the two houses, and the Governor, had signed the act, it was presumed, in the absence of proof, that it had become a law in pursuance of the constitution. Or, Supervisors v. The People ex rel. 25 Ill. 181, where the Senate journal did not show the bill had been read three times, in the absence of other proof it was presumed to have been read as required by the constitution. But, here, we can not apply the doctrine of presumptions. That which is alleged to be a law is, upon its face, without the form or semblance of a law; and as there are in the petition no averments in respect of the various constitutional prerequisites, and the demurrer can not be said to admit anything more than is material and properly pleaded, there is no foundation whatever upon which to rest a presumption. If the various constitutional provisions respecting the form, component parts, elements and mode of procedure, in and by which the legislative will and executive consent ultimately become a valid and binding law, are mandatory in their character, and so connected and interwoven with the exercise of the legislative and executive power and authority as to be essential and indispensable parts thereof, as we hold they are, then it follows that this resolution can not be held to be a law. It is not the will of the people, constitutionally expressed, in the only mode and manner by which that will can acquire the force and vitality, under the constitution, of law, for this legislative act is without a title, has no enacting clause, is not signed by the Speakers of both houses, or either house, has not the signature and approval of the executive, nor is there anything from which it can be seen that it falls within the cases where a legislative act, in other respects constitutional, may become a law without executive approval; and although, in the passage and adoption of this resolution, every other constitutional requirement may have been observed, the absence of those enumerated is sufficient to deprive- this expression of the legislative will of the force and effect of law; and the same did not become, therefore, and is not, legally binding, and obligatory upon the respondents.

But this resolution, treating it as a joint resolution, must be held to be void, as in violation of section 17, of article 4, of the constitution, for the reason that it is an attempt to divert, by joint resolution, appropriations made by law for other purposes. By the resolution it is provided, that the books to be purchased are to be paid for “out of the appropriation made for printing and binding, or any other appropriation made for that purpose: Provided, the amount shall not exceed ten thousand dollars.” At the same session of the legislature, an appropriation was made of $35,000, “or so much thereof as may be required, ” for printing, and of $10,000, “or so much thereof as may be required, ” for binding; and it was directed that “the public printing and binding to be paid for, according to the contract, upon the certificate of the Board of Commissioners of State Contracts, and approved by the Governor. ” (Laws 1885, p. 49.) Here were two specific appropriations for two specific purposes, entirely separate and distinct, and having no necessary connection with each other. The art or trade of printing is separate and distinct from the art or trade of binding; and although, in the manufacture of a book, both arts are resorted to, they are not the only ones employed. Before the printer can be set at work to print, the paper must be provided by the paper maker, and the ink by the ink maker. An appropriation for printing is not an appropriation for paper, and is not so understood by the legislature, for in the same act where these specific sums are appropriated for printing and for binding, appears an appropriation for $15,000 for printing paper and stationery. Nor is it understood by the legislature that an appropriation for printing and for binding is an appropriation for purchasing books, for also in the same act appear five separate and distinct appropriations for purchasing books, aggregating over $5500.

This resolution directed that the cost of the books respondents were by it authorized and directed to purchase, should be paid for out of “the appropriation for printing and binding, or any other appropriation made for that purpose.” No further argument is required to reach the conclusion that an appropriation of $35,000 for printing is not an appropriation for purchasing books; nor is an appropriation of $10,000 for binding an appropriation for purchasing books. Nor, again, is an appropriation of $35,000 for printing, and an appropriation of $10,000 for binding, an appropriation for “printing and binding. ” It follows, that if the cost of these books was to be paid for out of the two appropriations referred to, as relator contends was the intention, it was an attempt to divert these specific appropriations, by joint resolution, from the purposes for which they were made, which is forbidden by the constitution. And, again, as there was ho appropriation made for “printing and binding,” there was no appropriation available for the payment of the cost of these books, had they been purchased; and the effect of their purchase, under such circumstances, would have been the incurring of a debt by the State, which is prohibited, unless the debt is contracted for the purposes and in the mode pointed out in section 18, of article 4, of the constitution.

Some of the positions and arguments presented and urged with much force by relator, must be noticed. And

First—Legislative construction of the constitution. Under this head we are referred to quite a number of joint resolutions of the General Assembly, since the adoption of the’ present constitution, which are said to be inconsistent with the views here announced. We have not felt it necessary to examine them all minutely, to determine whether such inconsistency exists in every case; but we have gone far enough to satisfy us that in most of the instances the inconsistency referred to is only apparent and not real. We find, for example, some instances where the Governor has been requested to pay certain claims out of his contingent fund. This xve can not regard as the diverting of an appropriation made for another purpose. The very object and purpose of placing such a fund under the control of the executive is, obviously, to meet unforeseen contingencies, and the resolutions may well be regarded as no more than advisory,—as intended to give the executive the benefit of the opinion of a coordinate department of government. Then, in other cases, joint committees of the two houses, and joint commissioners of the two houses, were sent on different missions, and, with their clerks, allowed for the extra service, and chaplains, clerks, etc., were directed to be put upon the pay-rolls of the two houses; but these expenses all appear to have been paid out of the legislative appropriation, and to be in no sense a diversion of such appropriation. No instance has been pointed out, so far as we have observed, where the legislature has before attempted, by joint resolution, to divert a specific appropriation to any purpose other than that for which it was made, nor authorizing an obligation to be incurred on behalf of the State for which no appropriation was available. However ready and willing the court might be, in a case of doubt and uncertainty, to turn to contemporaneous construction of the constitution by a coordinate department of government, nothing suggested in this case has raised a doubt in our minds as to the true construction to be placed upon the various provisions of the constitution referred to, and we find no occasion to resort to legislative construction.

Secondly—The practice of the Congress of the United States. True, Congress authorizes expenditures, and may appropriate money, by joint resolution, and that- form of legislation is fully recognized, and is “put upon the same footing, and made subject to the same regulations, with bills, properly so called. In Congress, a joint resolution * * * is regarded as a bill.” (Cushing’s Law and Practice, sec. 2403.) But this is so, we miist believe, because of the character of the provisions of the constitution .of the United States. Clause 3, of section 7 of article 1, reads: “Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States, and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill-. ” A joint resolution is there placed on the same footing as a bill, and, apparently, the same formalities in respect of the vote by which it is adopted, and the approval of the executive, are required as in the case of a bill, while in our constitution the resolution is unknown as a mode by which laws are enacted. The word “resolution,” so far as we are advised, occurs but three times in our constitution: First, in the oath .administered to the members of the General Assembly. (Art. 4, sec. 5.) Second, allowing members to protest against any act or resolution. (Art. 4, sec. 10.) And third, forbidding the diverting of an appropriation. (Art. 4, sec. 17.) And while, in respect of many matters, the legislature may speak by resolution, under our constitution it is denied the power to enact laws except in the mode so carefully pointed out.

And Third—The practice in other States. It has not seemed to us necessary to extend this opinion by a reference to the constitutions of other States and the practice there recognized. The provisions of our constitution are so plain, and the intent of the people to prescribe the only mode and manner by which laws should be enacted or appropriations made, and money diverted from appropriations already made, are so manifest, that such examination and comparison could afford us no assistance.

We therefore hold, that the joint resolution of the General Assembly, passed and adopted in 1885, and set out in relator’s petition, did not have the force of law, and imposed no duty or obligation upon the respondents; that, considered as a joint resolution of the General Assembly, it is void under the constitution, as attempting to divert, by joint resolution, appropriations made by law for other purposes; and that it is also void, as attempting to authorize the creation of a debt of the State for purposes and in a manner 'forbidden by the constitution.

The demurrer is sustained and the petition dismissed.

Petition dismissed.