author: Mr. Justice Scholfield

text:
    Commissioners of Highways of the Town of Colfax v. Commissioners of East Lake Fork Special Drainage District.

      Filed at Springfield April 5, 1889.

    1. Drainage law—action—to recover for benefits to public highway. Under the Drainage law, the drainage commissioners may assess the public roads in their district such sums as they will be benefited, in proportion to the benefits to the other lands, and may recover judgment upon such assessments in an action of debt against the highway commissioners of the town in which such roads may lie.
    2. Same—pleading—of the declaration in such case. In an action of debt by the commissioners of a union drainage district, against the commissioners of highways, to recover for special assessments made against the public roads of the defendants’ town, the declaration alleged, in substance, the organization of the plaintiffs as a special drainage district ; that they assessed to such public roads such sum as was just and equitable for such roads to pay, in proportion to the benefits received by them by the work of drainage; that they estimated the amount of benefits to the entire district, including those to the roads, giving the relative proportion assessed to such roads and the whole district, which ratio was 3-100; that on a hearing of objections, after due notice to all parties interested, the commissioners filed their certificate of confirmation, from which no appeal was taken by the defendants; that the plaintiffs, having duly divided the district into sub-districts, did assess the public roads in each sub-district by classifying them in the same manner as was done for work on the main ditch, giving the proportions and ratios, and alleging the appearance of the defendants on the hearing of objections and the confirmation of the classification, and the failure of any one to appeal, and showing the refusal of the defendants to pay the assessments on the roads: Held, on general demurrer, that the declaration was sufficient to support a judgment against the, defendants.
    3. Same — assessment■ of benefits—for what purposes—as to public highways. The formation of drainage districts is not limited by the constitution (art. 1, sec. 3,) and the law of 1885 to agricultural or sanitary purposes, in the sense that no lands can be specially assessed unless they shall be found to be benefited specifically for agricultural or sanitary purposes, as this would exclude all land held for residences, roads and timber land. The improvement of land for highways or for residences, and for timber, by proper drainage, is, in the sense of the law, an improvement for agricultural and sanitary purposes.

      4. Neither the constitution nor the statute requires that the benefits shall be for agricultural or sanitary purposes, but they require that the district shall be organized for these purposes. The only limitation in respect to benefits is, that the drains, etc., shall be constructed and maintained by “special assessments upon the property benefited thereby,”—that is, benefited by constructing or maintaining the drains, etc.
    5. If a highway over marshy or swampy ground shall be drained, it will be improved, and the public will be benefited thereby, and that will be don e by the drainage'district which it was the duty of the highway commissioners to have done, and therefore the law imposes no new burden on the road district.
    6. Same—question of benefits—whether open to inquiry. In an action by drainage commissioners against highway commissioners, to recover for special assessments upon public roads, the question of whether the roads are benefited in fact, is not open to inquiry. If the commissioners err in their estimate, the remedy is by appeal from their order of confirmation.
    7. Same—assessment upon highways—notice. Where any public roads are assessed their proportional share of benefits arising from a drainage system, the commissioners of highways are entitled to the same notice as individual land owners. The giving of such notice gives jurisdiction to the drainage commissioners to act.
    8. Same—classification of lands—including highways. The drainage law, requiring .the lands benefited to be classified, includes highways, which form a class of themselves, distinct from lands in general. When they are assessed pursuant to section 40 of the Drainage act, no other classification is needed.
    9. Same—expenditure of funds—how far limited, territorially. The power of a drainage district in several townships to expend money raised by special assesments, is co-extensive, territorially, with its power to assess and collect. The case of Hundley v. Park Comrs. 67 Ill. 559, holding that money raised by assessment in one town .can not be expended in another, has no application to a municipal corporation em- . bracing parts of several townships.
    10. Judgment against municipal corporation—remedy for enforcement. In a suit by a drainage district against highway commissioners, on special assessments on their, highways for benefits thereto, the judgment against the highway commissioners is not a charge on the highways so benefited, or any other property. It is simply a charge against the municipality, to be paid from its revenues. Payment may be enforced by mandamus, after judgment fixing the amount due.
    11. Where, in such suit, the judgment awards an execution, the error will be a harmless'one, as the commissioners of highways have no property liable to execution, 'and that part of the judgment will be treated as a nullity:

      Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    This was an action of debt, for the amount of benefits assessed against certain highways. The defendants demurred to the declaration, but the court overruled the demurrer, and the defendants electing to stand by their demurrer, and refusing to answer over, judgment was given for the plaintiffs.
    The declaration alleges, that plaintiff, at the time mentioned therein, was a duly organized drainage district under the act of the General Assembly entitled “An act to provide for drain.age for agricultural and sanitary purposes,” etc., approved June 27, 1885; that certain public roads in the said town of Colfax are within the said organized district and the sub-districts of said drainage district; that the said commissioners of said district were, on, to-wit, the 7th day of June, 1887, of opinion that the said public highways of said town of Colfax, within said drainage district, would be benefited by the construction of the work in said district, etc., and being of such opinion, did assess the said public roads such sums as would be just and equitable for said public roads to pay, in proportion to the benefit received, etc.; that said commissioners of said drainage district did then and there determine, by estimating the amount of benefit to the entire district, including' the benefits to said public roads, and also the benefit to said public roads, the fractional figures of 3-100 expressing the ratio between the sum of benefits for the whole district and the sum found to be the benefit to the said public roads, which said fractional figure 3-100, so fixed as aforesaid, does express the proportional part of the corporate taxes of the said district to be paid by the said public road; alleges that said fractional figures were duly entered on the classification made and filed with the county clerk on the 27th day of January, 1887; that the commissioners fixed the time and place for hearing objections to said classification; that they issued notices of the time and place of said meeting, and addressed them to all persons interested,—which notices stated the object of said meeting, and which notice was duly published as required by law, etc., and copies of the same mailed to commissioners of highways of Colfax township; that the commissioners of said drainage district met at the time and place designated in said notices, and heard all objections to said classification, and after having heard all objections and made all corrections that justice required, sustained the said classification, and did confirm the said figure of 3-100 against the defendants, and did make an order of such confirmation, and filed the same with the county clerk on the 18th day of February, 1887, from which the defendants did not appeal, and the same remains now in full force, and said classification and order of confirmation are duly recorded in the drainage record, etc.; that the commissioners of said drainage district filed with the clerk their certificate, which was duly recorded, requiring $35,000 to be raised by special assessment upon the lands of said district which were benefited; that on computations made by the said clerk, the commissioners made out and filed a tax list, as required by law, in which said tax list, upon the basis of said figure 3-100 classification and the said $35,000 levy, aforesaid, the amount assessed a,gainst the defendant for benefits to said public roads was and is $1050, which said assessment roll or tax list was confirmed by said commissioners, and on the 2d day of March, 1887, duly recorded in the drainage record, etc., and that the said sum of $1050, with eight per cent interest from said 2d day of March, 1887, now remains due and unpaid; and the said drainage commissioners having duly divided the said drainage district into sub-districts, and certain public, roads in said town of Colfax being within the sub-districts Nos. 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, and on the 28th day of October, 1887, the said commissioners of said drainage district being of opinion that the said public highways in said town of Colfax within each of said sub-districts numbered as aforesaid, would be benefited by the work in said sub-districts, said drainage commissioners did assess to such public roads such sums as would be just and equitable for said public roads to pay, in proportion to the benefits received by them by such work; and the said commissioners did then and there determine, by estimating the amount of benefits to each entire sub-district, including the benefits to said public roads in each respective sub-district and also the benefits to such public roads, the fractional figures in each sub-district expressing the ratio between the sum of the benefits for each district and the sum found to be the benefit to the public roads in each suh-district, which said fractional figures in said respective sub-districts are as follows: Sub-district No. 3, one-twentieth; No. 5, one-thirtieth; No. 6, one-sixteenth; No. Y, one-fortieth; No. 8, one-fortieth; No. 9, one-twentieth; No. 10, one-seventh; No.. 11, one-fifteenth; No. 12, oné-sixteenth; No. 13, one-twentieth;'No. 14, one-eighth; No. 15, one-eleventh, and No. 16, one-fourteenth, and were fixed as aforesaid, and do express the proportional part of the corporate taxes of the said sub-districts, respectively, to be paid by said public roads, which said fractional figures the said drainage commissioners did respectively place against the public roads of said town of Colfax, in each sub-district, in their tables of classification in said sub-districts, and duly filed the same with the county clerk; that the commissioners fixed the time and place in each of said sub-districts to hear the objections to said classification, showing the places and times for such hearing in each of said districts; that they fixed a time and place for the hearing of the general and final objections to said classification; that they issued notices of the time and place of said meeting, and published the same, and sent notices, as required, to all persons interested'; that the commissioners met, at the respective times and places in said notices mentioned, to hear all objections, etc., at which time they made such corrections as they deemed just, and that defondants appeared and objected to said classification; that the commissioners, after hearing the objections, confirmed the classification against the defendants, the figures remaining as above stated; that on the 26th day of September, 1887, they filed their order of confirmation with the county clerk; that it was duly recorded, and now remains in force and effect; that defendants did not appeal; that the commissioners filed their certificate with the clerk, which was'recorded, requiring the following sums for the said sub-districts : No. 3, $642; No. 5, $2651; No. 6, $1491; No. 7, $3612; No. 8, $1910; No. 9, $2577; No. 10, $153; No. 13, $1062; No. 12, $1100; No. 13, $3568; No. 14, $2696; No. 15, $244; No. 16, $1721,—to be raised by special assessment upon the lands benefited in said sub-districts; that the clerk computed and apportioned the said sums to the names of the owners, according to the acreage and figure of classification, the amount or proportion of benefits ; that upon this computation the commissioners made out their tax list as required by law, and the amounts assessed against the defendants in each of said sub-districts for benefits to said public roads were as follows: Sub-district No. 3, $32.10; No. 5, $88.37; No. 6, $93.19; No. 7, $90.30; No. 8, $47.75; No. 9, $128.85; No. 10, $21.86; No. 11, $70.80; No. 12, $68.75; No. 13, $178.40; No. 14, $3.37; No. 15, $22.18; No. 16, $122.93 ; that said amounts were entered on tax list and confirmed by said commissioners. Said tax list filed with the clerk on the 28th day of October, 1887, recorded in the drainage record, is in full force and effect. Said sums, with eight per cent interest from October 28, 1887, are now due and unpaid. The debt alleged to be due is $2352.48, and damages alleged to have been sustained, $1000.
    The error assigned is the overruling of the demurrer.
    Messrs. Gere & Philbrick, for the appellants.
    Mr. Francis M. .Wright, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The first contention in the printed argument filed on behalf of appellants is, since the purpose of the formation of drainage districts is limited by the constitution (art. 4, sec. 3,) and by the statute (Laws 1885, p. 77, et seq.,) to “agricultural or sanitary purposes,” no lands can be assessed as specially benefited unless they shall be found to be benefited for agricultural or sanitary purposes. If by this it is intended that the lands benefited shall be directly devoted to the raising of agricultural crops or to sanitary uses, and that the benefits shall consist alone in improving the capacity to produce agricultural crops or the efficiency of the property for sanitary uses, it is manifestly too narrow, for this would exclude residences, out-buildings, yards, lands kept for timber, and all unimproved lands; and yet it is plain, that in the ordinary farm the residence, out-buildings, yards, and lands kept for timber, are, in a general sense, devoted to agriculture, for each is indispensable to the farmer in operating his farm; and the unimproved lands which are too wet to be devoted to the raising of crops, will,by being drained, be fitted therefor, and thus will be, literally, improved for agricultural purposes. So, too, it is obviously impossible to cultivate lands, save and market crops, procure family supplies, etc., in an agricultural community, without highways. They must be constantly used for agricultural purposes, and therefore when, by improvement, they are benefited, they are literally benefited for agricultural purposes, although it may be for other purposes also. On this principle, we held in Spear v. Drainage Commissioners, 113 Ill. 632, that on the trial of an appeal from the assessment of benefits to a party’s land by a proposed drainage, the j ury may take into consideration, not only the benefit to the party’s land assessed, by the drainage of the same, but also the benefit he may derive by the drainage of a slough which separates him from his other land, and thereby obviates the necessity of his bridging

the slough to reach such other land, and that there is no error in admitting evidence showing such additional benefit.

Moreover, we are of opinion that neither the constitution nor the statute requires that the benefits shall be for agricultural or sanitary purposes. They require that the districts shall be organized for those purposes, but the only limitation in respect to benefits is, that the drains, etc., shall be constructed and maintained by “special assessments upon the property benefited thereby,”—that is, benefited by constructing or maintaining the drain, etc. If a highway over marshy or swampy ground shall be drained, it will be improved, and the public will be benefited thereby. That will be done by the drainage district which it was the duty of the highway district to do, and therefore it imposes no burden upon the highway district that it shall be required to contribute, in proportion to the benefit thus received, for the improvement whereby it is produced, but, upon the contrary, it ratably distributes the cost of a public improvement in accordance with the spirit of our constitution. County of McLean v. City of Bloomington, 106 Ill. 209, and cases there cited; Chicago and Northwestern Railway Co. v. The People ex rel. 120 id. 104.

We have nothing to do with the question of the fact of benefit in the present case. If, in legal estimation, there may have been benefit to the highway for which compensation should be made, it is sufficient. The commissioners had jurisdiction to act, and if they erred, it should have been corrected in another form of proceeding. Keigwin v. Drainage Commissioners, 115 Ill. 347; Chicago and Northwestern Railway Co. v. The People ex rel. supra.

It is next contended, that there is no point or time when jurisdiction is obtained of commissioners of. highways. This is a misapprehension of the effect of the statute. Section 40 of the act approved June 27, 1885, provides, that “if, in the construction of said work, any public highway * * * will be benefited, the commissioners, may assess to such public road * * * such sum or sums as will be just and equitable for such public road * * * to pay, in proportion to the benefits received, which shall be determined by estimating the amount of benefits to the entire district, including the benefits to such * * * public road, and also the benefit to * * * the public road; then the fractional figures expressing the ratio between the sum of the benefits for the whole district, and the sum found to be the benefit to the * * * public road, shall express the proportional part of the corporate taxes of the district to be paid by such * * * public road. * * * Such proportional classification shall be subject to like review and appeals as is provided for individual land owners.” In order that “such proportional classification shall be subject to like review and appeals as is provided for individual land owners,” it would follow that those in charge of the public roads,—that is, the commissioners of highways,—(see 2 Starr & Curtis’ Stat. chap. 121, sec. 2,) must have the same notice as individual land owners,—and it is here alleged that such notice was given. Jurisdiction, therefore, was obtained when this notice was given.

Again, it is objected that there is no method for the classification of anything but lands. Lands are to be classified; but highways form a class of themselves, distinct from lands in general, and so when they are assessed pursuant to section 40, no other classification can be needed.

An objection is urged, based on Hundley v. Park Corwrs. 67 Ill. 559, that money raised by assessment in one township can not be° expended in another. That case can have no application here. There the assessments were made by two distinct municipal corporations, while here it is made by but one. corporation. For the purpose of any question now before us, no other municipal corporation than this drainage district has any interest in the collection or expenditure of this assessment, and its power to expend is co-extensive, territorially, with its power to assess and collect.

It has been suggested by some members of the court, in the consideration of this case, that it might be thought that Craw v. Village of Tolono et al. 96 Ill. 255, is opposed to the present judgment. To avoid any misapprehension that might otherwise arise in that respect, we deem it advisable to say that a majority of the court hold that the cases are, in principle, dissimilar. That was a suit against a natural person, and, upon a judgment rendered under the facts of that case, an execution would have issued which might have been levied upon any property of the defendant. This, however, is a suit against a municipal corporation, and upon the judgment rendered no execution can issue. The tax here sued for, though levied because of the ownership of certain property, is not a charge against that or any other specific property, but it is simply a charge against the municipality, to be paid from its revenues. The amount, says the statute, shall be paid out of the road and bridge tax of the town or district in which the public highway, or part benefited, lies. (Latter part of section 40 of act approved June 27, 1885.) Since we have held that this is a proper mode of distributing a public burthen, (Higgins v. Chicago, 18 Ill. 276, Scammon v. Chicago, 42 id. 192, County of McLean v. City of Bloomington, 106 id. 209,) it must follow that should payment not be made, the commissioners can be compelled, by mandamus, to make it. (City of Olney v. Harvey, 50 Ill. 453.) But before applying for mandamus there must be a judgment at law determining the amount due. The People ex rel. v. Board of Supervisors, 50 Ill. 213. See, also, County of McLean v. City of Bloomington, supra.

The transcript before us shows a judgment awarding execution, which we have seen is unauthorized. But it is a harmless error, for the reason that the commissioners have no property which can be seized and sold upon execution. That part of the judgment is a nullity, and it will be treated as stricken out, and the judgment, thus amended, is affirmed.

Judgment affirmed.

Mr. Justice Bailey, dissenting.


source: Caselaw Access Project

author: Mr. Justice Bailey

license: Public Domain

text:
    E. Sanford et al. v. Cassa Kane.

      Filed at Ottawa April 3, 1889.

      1. Appeals—from Appellate Court—in what cases, without regard to amount involved. While by the statute no appeal or writ of error is allowed to bring a case from the Appellate Court to this court in cases where the amount involved is less than $1000, the section of the constitution relating to appellate courts provides that appeals and writs of error shall lie from those courts to this “in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved.” If a freehold is involved, the cause may be brought to this court by appeal or writ of error, without regard to the amount involved and whether the Appellate Court assumed jurisdiction rightfully or wrongfully.
    2. Same—whether a freehold involved—generally. A freehold is involved in all cases where the necessary result of the judgment or decree is, that one party gains and the other loses a freehold estate; and it is equally clear, that a freehold is involved, within the meaning of the statute and the constitution, where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate.
    3. Same—bill to set aside trustees deed—whether a freehold involved. On bill by one claiming title to land under a mortgagor, to set aside a sale and deed of the property to the defendant, who claims title thereunder, a freehold is directly involved, and no appeal lies to the Appellate Court from the decree of the trial court.
    4. Same—bills to redeem—to foreclose—or to establish other Kens, etc. —whether involving a freehold. Bills to foreclose mortgages, or to establish other liens upon land, do not ordinarily involve a question of freehold, because, by payment of the sum due, a decree and sale are prevented. The same is true of bills to redeem, where the right to redeem is the only question litigated. But in such cases, where the pleadings raise adverse claims of title which must be adjudicated in order to a decree, a freehold is involved.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.

      Mr. B. C. Cook, for the plaintiffs in error.
    Mr. Egbert Doyle, for the defendant in error.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a hill to redeem. Cassa Kane, the complainant, alleges that she is the owner of certain lands in Iroquois county; that on the 20th day of July, 1875, the title to said land was in Morris Kane, her husband; that on that day Morris Kane borrowed of Sanford $475, and gave his note therefor, signed also by the complainant, for $500, due three years after date, and bearing interest at the rate of ten per cent per annum, payable semi-annually, the $25 being a bonus paid by him for the money; that to secure the payment of said note, Morris Kane and the complainant executed to Sanford a mortgage on said land containing a power of sale running to Sanford and his assigns, authorizing the sale of said land in case of default in the payment of said note; that Sanford afterward assigned said note by endorsement thereon to one Whittlesey, whereby said power of sale became vested in him; that Wilkinson claimed to be the owner of said note by purchase from Whittlesey, hut that said note had never been assigned to him so as to vest in him the power of sale; that on the 16th day of October, 1879, Wilkinson, claiming to be the assignee of said mortgage and vested with said power of sale, after having advertised said land for sale under said power, sold the same to Sanford for $300, and executed to him a deed purporting to convey the same to him in fee; that at the time of said sale the legal title to said note was in Whittlesey, and he was the only person then authorized to execute the power of sale.

The bill further alleges that said loan was usurious; that Morris Kane had paid thereon various sums of money; that immediately after the sale Sanford took possession of said land and has ever since that time received the rents and profits thereof, amounting to a large sum of money, which should be credited on said loan; that the sale to Wilkinson was void; that the complainant was unable to tell who owned the mortgage, whether Wilkinson or Sanford, and therefore made them both parties deféndant; that on the 21st day of February, 1876, Morris Kane and the complainant conveyed said land to John Kane, and that on the 1st day of October, 1881, John Kane and wife conveyed the same to the complainant. The bill prays that the sale be cancelled and the deed from Wilkinson to Sanford be decreed to be void, and that an account be taken between the parties and the complainant be allowed to redeem from said mortgage.

Answers and replications were filed, and the court having heard the cause on pleadings and proofs, decreed that the sale by Wilkinson to Sanford was null and void, and that the complainant had a right to redeem. On an accounting it was found that the amount due on said mortgage was $299.96, and it was thereupon decreed that, upon payment of that sum by the complainant into court, all right of Sanford or of Wilkinson, or any one claiming through them, to said land, under said mortgage should cease and determine, and all their rights be vested in the complainant.

From this decree the defendants appealed'to the Appellate Court of the Second District, where said decree was affirmed, (Sanford v. Kane, 24 Ill. App. 504,) and the defendants have brought the record from that court to this by writ of error.

The counsel for the defendant in error has interposed a motion to dismiss the writ of error on the ground that the case involves less than $1000; and he also makes the suggestion that the Appellate Court had no jurisdiction for the reason that a freehold is involved, and that if his motion should be denied, the cause should be remanded to that court with directions to dismiss the appeal.

Of the two questions thus presented, the latter must necessarily be considered first; for while by the statute, no appeal or writ of error lies from the Appellate Court to this court in cases where the amount involved is less than $1000, the section of the Constitution relating to Appellate Courts provides that appeals and writs of error shall lie from those courts to this “in all criminal cases, and cases in which -a franchise or freehold or the validity of a statute is involved.” If then a freehold is involved, by the express terms of the Constitution, the cause may be brought here by appeal or writ of error, irrespective of the amount involved. ° And it makes no difference, so far as our power to entertain the appeal or writ of error is concerned, whether that court assumed jurisdiction rightfully or wrongfully. If the case» involves a freehold, it may properly be brought to this court, although the only error we may have power to correct is that of having improperly assumed jurisdiction of the appeal.

Does this case involve a freehold within the meaning of the Constitution and statute ? By the pleadings both parties claim an estate in the land in fee. Sanford claims such estate by virtue of a sale under a power in a mortgage and a deed from the person holding and, as he alleges, entitled to execute that power, purporting to convey to him an absolute estate in fee. The complainant denies Sanford’s title, claiming that the mortgagee’s sale and the deed executed in pursuance of such sale are void, and asking to have the same so declared. She also claims title in herself through mesne conveyances from the mortgagor, subject only to the lien of the balance due on the mortgage. The title to the land was thus put directly in issue, and evidence was introduced at the hearing by both parties applicable to the issues thus formed. If the decree had been for the defendants, as they claim that under the evidence it should have been, it would manifestly, as between the parties, have established the title in fee in Sanford, and defeated the title claimed by the complainant. The decree, as it was entered, set aside the mortgagee’s sale and vacated the deed to Sanford, thereby defeating the title claimed by him, and establishing the fee in the complainant, subject to the mortgage. It is difficult to see how a freehold could have been more directly involved.

As said in Monroe v. Van Meter, 100 Ill. 347, “A freehold is involved in an action where the title to the land is presented and in issue between the parties.” A fair illustration of the rule may be found in Piper v. Connelly, 108 Ill. 646. That was an action of trespass quare clausum fregit, to which the defendant pleaded liberum tenementum. No freehold was sought to be recovered, the only possible judgment in favor of the plaintiff being one for damages for the alleged trespass. The freehold, however, was directly put in issue by the pleadings, and the plaintiff’s right to recover his damages necessarily depended upon whether the defendant had succeeded or failed in establishing his plea that is, in establishing his title to the freehold. The title, though in no sense the subject sought to be recovered, was directly in issue, and presented a question which the court was compelled to decide, and it was therefore held that a freehold was involved in the case within the meaning of the Constitution and the statute regulating appeals to this court.. We there said: “The plea of liberum tenementum necessarily, where, as here, it is directly put in issue by the replication, involves a freehold.”

Monroe v. Van Meter, supra, was an attachment suit where the writ was levied on certain» lands as the property of the defendant, and a third person filed his interpleader claiming title in himself to said land in fee. The plaintiff replied setting up a life estate in the defendant. The recovery sought by the plaintiff was not the title to the land, but the establishment of a lien thereon for the amount of his debt, and which might be discharged by the owner of the fee by the payment of the amount of the lien. But in order to determine the plaintiff’s right to his lien, it became incumbent upon the court, as a preliminary question, to determine the title to the freehold. In holding that a freehold was involved, we said: “It will be observed that under the pleadings the issue made and to be determined by the evidence was one of title to the land levied on by the writ of attachment. On the one hand it was claimed that the defendant in the attachment owned a life estate in the premises, while on the other hand appellees, who are his children, claimed that he had no title whatever to the property, and that they were the owners in fee. Here a freehold was as clearly involved as it would have been had the appellees brought an action of ejectment against the defendant to recover possession of the land.” In Frank v. King, 121 Ill. 250, a case involving facts substantially identical with the case last cited, the same rule was affirmed. In Hutchinson v. Howe, 100 Ill. 11, a bill was filed to remove a certain contract as.a cloud upon the complainant’s title, the court, in discussing the question as to whether a freehold was involved, said: “Wherethe cloud is created by an executed contract, as, a deed purporting to convey the title to the estate, and the question is made whether it is a valid deed or a mere cloud upon the title, a freehold would seem to be necessarily involved. It is the title itself that is a matter of contention.”

It is the rule that bills to foreclose mortgages, or to .establish other liens upon lands do not ordinarily involve freeholds, because the defendant may in such cases, by the payment of the money necessary to discharge the lien, prevent the decree from being so executed as to divest him of his freehold, and usually the only question litigated is the existence of the lien, the title itself not being put in issue. The same may be said of bills to redeem, where the right to redeem is the only question litigated. But in such cases, when the pleadings raise adverse claims of title between the parties which must necessarily be adjudicated in order to a decree, a freehold is involved. This was clearly recognized in Chicago and Great Western Land Co. v. Peck, 112 Ill. 408. In Kerfoot v. Cronin, 105 Ill. 609, it was held that a freehold was involved in a bill to foreclose a deed of trust, where the complainant sought to show title in the maker of the deed of trust under an unrecorded deed to him from the person under whom the defendants claimed titlej and to have the title of the defendants held to be subordinate to that of the complainant under the deed of trust. See also Bremer v. Calumet and Chicago Canal and Dock Co. 123 Ill. 104.

We are referred to the ease of Chicago, Burlington and Quincy Railroad Co. v. Watson, 105 Ill. 217, as laying down a proper test by which to determine in all cases whether a freehold is or is not involved. It is there said that a freehold is never involved unless the primary object of the suit is the recovery of a freehold, and the judgment or decree will, as between the parties, result in one party gaining and the other losing his estate. As applied to the facts in that ease the test laid down was doubtless correct, but it is manifest from repeated decisions of this court both prior and subsequent to Chicago, Burlington and Quincy Railroad Co. v. Watson that cases may often arise where it can have no application. A freehold is undoubtedly involved in all cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, but it is equally clear that a freehold is involved within the meaning of the Constitution and statute, where the title to a freehold is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue, although the judgment or decree does not result in one party gaining and the other losing the estate.

What we have said is in no respect in conflict with our decision in Kirchoff v. Union Mutual Life Ins. Co. decided at a former term and before us at this term on petition for a rehearing. In that case the complainant alleged the execution of a deed conveying certain real estate to the defendant, coupled with an oral agreement that the complainant should be permitted to redeem two of the lots conveyed upon certain prescribed terms. There was no issue in relation to the fee, the complainant admitting and alleging that it had been conveyed and rightfully conveyed to the defendant. The whole controversy turned upon the question of the existence of the agreement permitting the complainant to redeem the two lots, that being alleged by the complainant and denied by the defendant. The decree found that the alleged agreement had been made, and awarded to the complainant a right to redeem, but as a mere right to redeem, unless exercised, works no transmutation of title, it was held, and properly held, that the decree did not necessarily result in transferí ing the freehold from the defendant to the complainant. The freehold then not being put in issue, and not being necessarily affected by the decree, we held that no freehold was involved.

A freehold being involved in the present case, the Appellate Court should not have assumed jurisdiction. The judgment. of that court will therefore be. reversed, and the cause will be remanded to said court with directions to dismiss the appeal, the appellant Sanford to pay all costs in this court.

Judgment reversed.


author: Mr. Justice Baker

text:
    The Hamburg-American Packet Company v. Regina Gattman.

      Filed at Ottawa April 3, 1889.

    1. CARRIERS—freight-—baggage—distinction,-as to liability as carrier, in case of loss. "Where merchandise to be used in trade is packed in a trunk and shipped as personal baggage, the carrier having no notice of the contents, the liability of the latter therefor, as a common carrier, does not attach.
    2. The mere payment of extra compensation on account of the overweight of baggage does not convert such baggage into freight.
    3. But in the case of an emigrant, who carries with him trunks and other ordinary baggage, and who also turns over to the earner a number of boxes of goods for transportation, and pays freight for the weight in excess of his allowance as to baggage, and the general char-, aeter of the shipment is known to the carrier, the courts will not conclusively presume the entire shipment is of baggage, and, in case of a loss, hold there can be no recovery except for such articles contained in the boxes as may properly be designated as necessary baggage.
    4. A packet company received a box of an emigrant’s goods at Hamburg, to be carried to the port of New York, and there safely delivered. Upon the arrival of the vessel carrying the goods, at New York, the owner caused a seasonable and proper demand to be made upon the company for the goods, which failed to deliver them or show any justification for non-delivery: Held, that the facts showed a right of recovery by the owner of the goods, against the company.
    5. Appeals—reviewing questions of fact. In an action against a common carrier, to recover for the loss of goods shipped, this court is permitted, by section 89 of the Practice act, to examine the record as to questions of law only, and the determination of the trial and Appellate courts upon all controverted questions of fact is conclusive.
    6. The judgment of the Appellate Court is final, not only in respect to the principal and ultimate facts upon which the right of recovery or ground of defense is claimed or based, but also in respect to the evidentiary and subordinate facts, which are mere evidence of such principal facts.
    7. Ebbob will not always bevebse—erroneous ruling as to measure of damages. A judgment sustained by the evidence and the findings of the Appellate Court will not be reversed on account of the giving of an instruction as to the measure of damages, when it clearly appears, from the evidence, that the jury were not misled by it, or that it injuriously affected the party complaining.
    8. Practice — directing what the verdict shall be. Where there is evidence before the jury tending to prove every necessary element of the cause of action alleged in the declaration, an instruction to the jury to find for the defendant is properly refused. '
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook, county; the Hon. Lorin C. Collins, Judge, presiding.
    This was an action on the case, brought by Eegina Gattman, against the Hamburg-American Packet Company, to recover damages for the failure of said company to carry a certain box of goods belonging to the plaintiff, from Hamburg, Germany, to the city of New York, and to deliver the same to the plaintiff at New York, whereby said goods became lost to the plaintiff. The declaration consists of four counts, three of which allege' the delivery of said goods by the plaintiff to the defendant, to' be carried and delivered, as aforesaid, for certain reward, the failure of the defendant to so carry and deliver the same, and the consequent loss of said goods, the other count being an ordinary count in trover. The trial before the court and a jury, in the Cook circuit court, resulted in a verdict in favor of the plaintiff, for $1604.30, and for that sum and costs the plaintiff had judgment. The judgment was subsequently affirmed, upon appeal, in the Appellate Court for the First District, and the case is now, by further appeal, brought to this court.
    In the early part of February, 1883, the plaintiff, being about to emigrate from Buda-Pesth, Hungary, her former place of residence, to the United States, packed such goods as she desired to take with her, in nine boxes, numbering them consecutively from 1 to 9, and forwarded them to the defendant, at Hamburg, to be shipped to New York. The plaintiff arrived at Hamburg, and sailed February 14, as a steerage passenger, on the defendant’s steamship Wieland, bound for New York. But four of her boxes, viz., those numbered from 1 to 4, arrived at Hamburg in time to be shipped by the Wieland, the other five being shipped a few days later by the defendant’s steamship Hammonia. All of said boxes arrived in New York, and were there ultimately delivered to the plaintiff, except box No. 1.
    The plaintiff was accompanied by her daughter, Clara Phillipsborn, and two children, by her son, Henry, and by two young women, all of whom came with her from Buda-Pesth. It appears that the Wieland landed at Hoboken, and that the steerage passengers, including the plaintiff and her party, together with their baggage and effects, were there placed on a steam harge and taken over to Castle Garden, New York. The plaintiff was met at Hoboken by Maximilian Phillipsborn, her son-in-law, who, as it seems, immigrated to the United States some seven months previously. Phillipsborn went on board the steamship as it reached the wharf, and, after assisting the plaintiff in getting together her hand-baggage, undertook to search for her boxes. The evidence shows that he searched both on shipboard and among the baggage landed at Hoboken, but failed to find them. He then inquired of one of the defendant’s employes in attendance, who suggested that possibly the boxes would come by another ship, but assured him that they would be all right and would soon be along, and that the plaintiff would get them. On reaching Castle Garden, he again inquired of the defendant’s agents, and received substantially the same response. The next day he went to the defendant’s freight office in New York, and inquired for and described the boxes, and was again met by the same assurance that they would come all right. Upon his insisting that he could not afford the expense of remaining in New York to await their arrival, and that he must have them at once, he was referred to another party, to whom he again gave an explanation of the matter, and who told him to go back to Hoboken, assuring him that he would find the boxes there. He accordingly returned to Hoboken and applied to the defendant’s freight agent, and was directed by him to look all around and see whether he could find them. He thereupon made thorough search, but the search proving fruitless, he was told to go again to Castle Garden, as the boxes might be there. He then returned to Castle Garden, and made a thorough search there, but with like result. He then went to the defendant’s office and demanded the boxes of the defendant’s manager, telling him that he could not remain longer in New York, and that he wished to take the boxes with him on his journey to Chicago; that he had a given number of railroad tickets for the party, upon each of which he was entitled to free transportation of one hundred and fifty pounds of baggage. The manager then told him that if they would go West by the Erie railroad, he would ship the boxes later by that road, and arrange for their transportation the same as though taken along with the party, but as Phillipsborn had already procured tickets by the Pennsylvania railroad, this arrangement could not be made. The party, however, remained in New York another day, and on that day Phillips-born again made search and inquiry for the boxes, both at Hoboken and Castle Garden, but entirely failed to get any trace of them. The plaintiff thereupon left an order for their delivery, when found, to Bothfeld, Stern & Co. of New York, and came on with her party to Chicago. Subsequently, three of the four boxes shipped by the Wieland, and the five boxes shipped by the Hammonia, were delivered by the defendant to Bothfeld, Stern & Co., and were forwarded by them to her. Box No. 1 was never delivered.
    There is considerable conflict in the evidence in relation to the marks or directions placed by the plaintiff on the missing box before it was shipped, the defendant’s evidence tending to show that it was marked and directed to a Mr. Bothgerber, of Chicago, and that the plaintiff’s name was not on it, while the plaintiff and several of her witnesses testify that all the boxes were marked with the name of Begina Gattman, in care of Bothgerber, Chicago, before they were shipped from Hamburg.
    The defendant gave evidence showing that by the rules and usages of the custom house, the baggage of steerage passengers arriving at New York was examined by the custom house officers on the deck of the ship or at the wharf; that it was the duty of the passengers claiming the baggage to open it and allow an officer to examine it, and if nothing dutiable was found in it, it was taken to the general baggage room of the Commissioners of Emigration at Castle Garden for registration, and then delivered to the owner; that whenever dutiable articles were found, the inspector making the examination marked the packages containing such articles, and attached thereto checks labeled “U. S. Customs,” and bearing numbers, at the same time giving duplicate checks to the owner, and-sent the package to the bureau of customs at Castle Garden for the determination and collection of the duties; that if the owner, for any reason, declined or neglected to open the baggage, or if no owner appeared, the baggage was seized and sent to the bureau of customs, and when no owner presented himself to receive the duplicate checks, both the check and duplicate were attached to the baggage; that such baggage was under the control of the surveyor of the port from the time of its examination on deck or at the wharf to the time of its delivery at said bureau, and that it there passed into the charge and under the control of the officers of the custom house, and so remained until it was determined who was entitled to it, and the duty was paid or it was released from duty, and that the steamship company had no further control over it, and had no right to interfere, unless acting as the representative of the owner, and by his authority. Unclaimed immigrants’ baggage was placed in a public store-room connected with said bureau, and was there kept in charge of the custom house officers for at least one year, and the packages were then opened and the contents appraised by said officers, who afterwards disposed of them by sale at public auction.
    The defendant gave evidence tending to show that all the baggage on board the Wieland was discharged on the day of her arrival; that after the passengers had left, one of the defendant’s agents whose duty it was to look after “left baggage,” found three boxes on the deck marked “Rothgerber,” but having no mark or number indicating that they belonged to the plaintiff, and put them into the baggage-room and locked them up, and that said boxes appeared, at the time, to have been opened. The defendant also gave evidence tending to show, that while the baggage discharged from the Wieland was being examined, an emigrant runner named Baschkopf called the attention of one of the inspectors making the examination, to two boxes lying on the wharf, and endeavored to bribe him to pass them without examination, and on being asked who owned them, said they belonged “to a girl over there;” that the inspector declined the proffered bribe, and told Baschkopf to open the boxes, and upon his neglecting to do so, the inspector marked them “P. S.,” (meaning public stores,) with the number of his badge; and, after attaching a brass check to each, put them on the barge, and conveyed them to Castle Garden, and delivered them to the superintendent of the bureau of customs, and that duplicate checks were also attached to said boxes. The number on the check attached to one of said boxes was 23, and it appears by the entries made, at the time, in a book kept by said bureau, that the box bearing that check was marked “Rothgerber,” and that the number 287 was placed on it by the revenue officers on its arrival at said bureau, that being its serial number in the order of its arrival. The evidence tends to show that said box was then placed in a storeroom or warehouse connected with said bureau, to which no person had access except the revenue officers, and that it was kept there for over a year; that the various packages of unclaimed goods which had remained in said warehouse for that length of time were then opened, catalogued and appraised by said officers, and that one of the packages appearing on said catalogue was described as being marked with the name of Rothgerber; that two days prior to the day fixed for the sale of unclaimed goods, said boxes and contents were placed on exhibition, under the custody and guard of said officers, and that on the day appointed said boxes were sold, one Lee becoming the purchaser of the box marked “Rothgerber.” During the pendency of this suit, the defendant traced said box into the hands of said Lee, and thereupon obtained from him a box in a mutilated condition, which, as is claimed, is the box in question, and also the contents, or a portion of the contents, of said box. The box and contents were produced at the trial, and while a portion of the contents were admitted by the plaintiff to be her goods, she denied that the residue belonged to her, and her evidence tended to show that the box produced was not the box No. 1 in which she shipped her goods from Hamburg.

      Messrs. Moses & Newman, for the appellant:
    Under a freight declaration, appellee proved a passenger baggage case, and then submitted instructions suited to her narr. The confusion of instruction No. 2 was to mislead, and prejudicial error.
    The plaintiff was not an absent consignee, but a steerage passenger, whose duty it was, upon arrival at the port of New York, to take, charge of her baggage, and present it to the officers of the government for examination. The promise of the ocean carrier to deliver baggage or freight is necessarily subject to the revenue laws of the country. Ohio v. Lohe, 51 Ind. 181; Wells v. Steamship Co. 4 Cliff. 228.
    As to what may be considered* baggage, see Woods v. Devin, 13 Ill. 746; Pardee v. Drew, 25 Wend. 457; Hawkins v. Hoffman, 6 Hill, 586; Schouler on Bailments, 342, 343.
    As to excluding presents, see Richard v. Westcott, 2 Bosw. 589; Bell v. Drew, 4 E. D. Smith, 59; Railroad Co. v. Kennedy, 4 Miss. 67.
    As to usage and contract limitation, see Schouler on Bailments, p. 505; Gibson v. Culver, 17 Wend. 305.
    No acceptance for reward arises when a passenger delivers, as his baggage, that which really secretes another’s goods, or his own merchandise. Dunlap v. Steamship Co. 98 Mass. 371.
    As to excess of baggage or valuables, the carrier is to be treated as a gratuitous carrier. Schouler on Bailments, 464, 465; Story on Bailments, sec. 550; Sewall v. Allen, 6 Wend. 335; “The Delaware,” 14 Wall. 579.
    ^ Where misdelivery occurs through the consignor’s carelessness in directing the goods, the carrier is held blameless. Bank v. Kaufman, 12 Heisk. 161.
    As to the practice at the port of New York, see Murphy v. Commissioners, 28 N. Y. 143; Klein v. Packet Co. 3 Daly, 390.
    As to the history of the Federal legislation arising out of section 4281 of the Bevised Statutes of the United States, see
      Norris v. Wright, 13 Wall. 104; Dunlap v. Steamship Co. 98 Mass. 37; Chamberlain v. Transportation Co. 44 N. Y. 305.
    As to “ordinary baggage,” see “The Ionic," 5 Blatchf. 538; Nordmayer v. Loescher, 1 Hilt. 499; Nevins v. Bay State Co. 4 Bosw. 225.
    As to persons not dealing fairly with carriers, see Railroad Co. v. Marcus, 38 Ill. 220; Railroad Co. v. Oehm, 56 id. 293; Railroad Co. v. Carrow, 73 id. 348.
    To pay extra compensation for over-weight does not convert baggage into freight. Railroad Co. v. Marcus, 38 Ill. 220.
    As to the duties of custom house officers, see sections 3100 and 3103 of the Revised Statutes of the United States.
    As to seizure under process, see Wood on Railways, 1596.
    Messrs. Byam, Parkhurst & Weinschenk, for the appellee:
    Carriers by water and by rail are excepted from the rule requiring a personal delivery to the consignee. They are required to land them on the wharf or other proper place, and give notice to the consignee or owner. Chickering v. Fowler, 4 Pick. 371; Steamboat Co. v. Knapp, 73 Ill. 506; Crawford v. Clark, 15 id. 561; Cope v. Cord, 1 Rawle, 203; Hyde v. Navigation Co. 5 I. R. 389.
    This notice must be actual, and the carrier is considered as retaining the custody of the goods, and as responsible for their safety, until such notice is given and a reasonable time thereafter. Crawford v. Clark, 15 Ill. 561; Salmon Falls. Co. v. “The Tangier," 1 Cliff. 396; Gleadell v. Thompson, 56 N. Y. 194; McAndrew v. Whitlock, 52 id. 40; Russell Manf. Co. v. Phan. Bost. Co. 50 id. 12.
    Moreover, in the case of carriers by water, merely landing the property on the wharf at the end of the voyage is not a good delivery, without, at the least, giving notice to the consignee of its arrival. This is a sound doctrine, as a delivery implies mutual acts of the carrier and the consignee. Sprague v. Railroad Co. 52 N. Y. 637; Ostrander v. Brown, 15 Johns. 39; Price v. Powell, 3 N. Y. 322; Gibson v. Culver, 17 Wend. 306; Packard v. Getman, 4 id. 613; McAndrew v. Whitlock, 52 N. Y. 40.
    Furthermore, where the carrier fails to give this notice, his common law liability as the insurer of the goods continues. Sprague v. Railroad Co. 52 N. Y. 657.
    Undoubtedly the promise of the carrier to deliver the goods is subject to the revenue laws of the country; but it has been held by one of the ablest courts in the United States, that where the goods are being landed under a permit, and with the supervision of an inspector, the carrier is not relieved from his duties and liabilities for the delivery. The consignee, it was held, is entitled to an absolute delivery of the goods from the master of the vessel. Redmund v. Steamship Co. 46 N. Y. 578.
    This absolute duty of the carrier to make a delivery will sometimes be excused, when the goods are taken out of his possession by process of law, either mesne or final. The qualifications to this doctrine, however, should be carefully considered always. As Mr. Justice Story says, the bailee may excuse himself by showing that the goods were demanded and taken from him by a person having a superior title to the property. Notice is required to he given of adverse claims. 2 Parsons on Contracts, 204.
    But the carrier will not be excused because of the seizure of goods under a process of law, even when such seizure is made at the instance of a third party who is entitled to the immediate possession of the goods as the rightful and absolute owner of them, unless the carrier gives prompt notice to the consignor, or other person from whom he received them, of the said seizure, in order that the consignor may have the opportunity of showing his title, if any, to the goods, or of protecting his interest in them. Bliren v. Railroad Co. 36 N. Y. 403; Railroad Co. v. Lohe, 51 Ind. 181; Mierson v. Hope, 2 Sweeney, 561; 104 Mass. 164.

      Not only must the goods be taken from the carrier by one entitled to them by virtue of superior title, but the process or proceedings under which they were taken by the officer must be legal and valid, and such as would empower him to make the seizure, for should process be void because issuing from a court having no jurisdiction, or for any other reason, the officer would be a mere trespasser, and the carrier would be no more obliged to submit to his act, under the process, than to those of any other wrongdoer. Railroad Co. v. Wilcox, 48 Ga. 432; Bliren v. Railroad Co. 36 N. Y. 403; Edwards v. Transit Co. 104 Mass. 159; Kiff v. Railroad Co. 117 id. 591.
   Mr. Justice Baker

delivered the opinion of the Court:

In the class of cases to which the present controversy belongs, we are permitted, by 'section 89 of the Practice act, in force July 1,1877, to examine the record as to questions of law only, and the determination of the circuit and Appellate courts upon all controverted questions of fact is conclusive. The judgment of the Appellate Court is final, not only in respect to the principal and ultimate facts upon which the right of recovery or ground of defense is claimed or based, but also in respect to the evidentiary and subordinate facts, which are mere evidence of such principal facts. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. 118; Edgerton v. Weaver, 105 id. 43.

It is urged, however, that as at the close of the trial in the circuit court the appellant interposed a motion, which was overruled, and an exception taken, asking the court to direct the jury to find a verdict for the defendant, a question of law is thereby presented to this court. This motion can not now avail the appellant, for we find, upon examination of the testimony in the record, that there was evidence before the jury tending to prove every necessary element of the cause of action alleged in the declaration, and the action of the trial court was therefore proper.

It is insisted that the seizure and sale of the box of goods known as case No. 1, by the revenue officers of the United States, whether rightful or wrongful, relieved the carrier of all liability. The evidence of appellee and her witnesses tended to show that the box which was taken by the government officers was not the box which was lost by her. The trial court, at the instance of appellant, instructed the jury as follows:

“If the jury believe, from the evidence, that the case was the one seized on its arrival by the government officers, either because it actually contained or because the government officials supposed that it contained dutiable goods, and was immediately removed from the company’s dock, with or without notice to the defendant company of such seizure and removal, and thereafter held and disposed of by the United States government officers, whether such removal, seizure, holding and disposal were rightful or wrongful, the defendant company is exonerated from all charge of negligence, and your verdict must be for the defendant.”

It follows that the jury, in returning a verdict in favor of the plaintiff below, necessarily found, under the instructions of the court, against the identity of the box which was produced in court at the trial with the one which she lost, and that there was no sufficient proof that the missing box of appellee was seized, on its arrival, by government officials. This controverted question of fact having been decided by the jury and trial court in favor of appellee, and the judgment having been affirmed by the Appellate Court, the correctness of the conclusion reached can not now be called in question.

Appellee was an emigrant, and she carried with her, in addition, to the nine boxes of goods mentioned in the statement of the case, three trunks and thirteen pieces of hand-baggage. It seems she wras entitled, under her passage ticket, to have a certain portion of her effects carried free, but was obliged to pay, as freight, for the residue of her effects, at the rate of fifty marks per cubic meter. The declaration is- based on the theory of the shipment of the nine boxes as merchandise or freight. The contention of appellee at the trial was, that the missing box of goods was shipped as freight, and the contention of appellant was, that it was shipped as baggage, and that the doctrine of reasonable baggage was applicable to the case. Both theories of the evidence were submitted to the jury by the instructions of the court, and it is manifest, from the verdict, that they decided the point in favor of appellee. The mere payment of extra compensation on account of the over-weight of baggage does not convert such baggage into freight, and where merchandise to be used in trade is packed in a trunk and shipped as personal baggage, the carrier having no notice of the contents of such trunk, the liability of the latter therefor, as a common carrier, does not attach, as was held by this court in C. and C. Railroad Co. v. Marcus, 38 Ill. 223, and Michigan Southern and Northern Indiana Railroad Co. v. Oehm, 56 id. 293. But in the ease of an emigrant who carries with her trunks and other ordinary baggage, and also turns over to the common carrier a number of boxes of goods for transportation, and pays freight for the weight in excess of her baggage allowance, 'and the general character of the shipment is known to such carrier, it would be unjust to conclusively presume the entire shipment was as baggage, and that there could, in case of loss, be no recovery except for such articles contained in the boxes as would properly be designated, as necessary baggage.

Complaint is made that the court, at the instance of appellee, instructed the jury, in respect to the measure of damages, that if the cause of action was established, then the plaintiff was entitled to recover the value of the goods which the defendant failed to deliver upon demand made. It is claimed, that in view of section 4281 of the Be vised Statutes of the United States, and of the evidence that certain articles made in whole or in part of silk or lace were contained in the lost box of goods; the instruction was erroneous. The instruetion, however, was qualified by such clauses as, “for which you may find the defendant liable under the evidence and instructions of the court,” and “unless you believe, from the evidence, that the defendant was excused from such delivery by such cause as is set out in instructions given you for the defendant.” And in one of the instructions given for the defendant, the attention of the jury was called to said section 4281 of the statute, and they were expressly told that “the plaintiff is not entitled to recover from the defendant the value of any articles which the jury may believe, from the evidence, to have been contained in case No. 1, which are composed of silk, in a manufactured or unmanufactured form, wrought up or not wrought up, with any other material, furs or laces, unless the jury further find, from the evidence, that the defendant received from the plaintiff a written notice of the true character and value of the same at the time defendant received such case; and the court instructs the jury, that in assessing damages against the defendant, if they shall find the defendant guilty, they must omit entirely from their estimation all such articles as those above described.” In her testimony appellee stated the aggregate value of the goods contained in case No. 1, to be $2336, and the evidence indicates that the value of the lace and silk goods which came within the purview of section 4281 of the statute, were of the value of some $600, and the verdict of the jury was for only $1604.30. It would seem, therefore, that the jury were not misled by the instruction under consideration, but in applying it to the evidence, gave due effect to the qualifications contained therein, and to the subsequent and qualifying instruction of the court above quoted. We are unable to say the giving of the instruction complained of tyas error, or injuriously affected the rights of appellant.

Several other of the instructions given for appellee were not strictly accurate, and were open to verbal criticism, but in their statements of the law applicable to the case there was no substantial error. The jury was fully and fairly instructed in behalf of appellant in some twenty-three instructions given at its request, and we find no error in the refusal of the two or three that were denied by the court.

This case has been submitted to two juries in the trial court, and with substantially the same result. The present judgment has been twice considered in the Appellate Court, and both such considerations have been followed by orders of affirmance. In the opinion filed in the latter court, after the rehearing of the cause, it was said: “After two examinations of the evidence in this case, we are satisfied it shows a cause of action against the defendant below, as a common carrier. The defendant received a case of plaintiff’s goods at Hamburg, to be carried to the port of New York, and there safely delivered to the plaintiff. At that port, upon the arrival of the ship carrying the goods, the plaintiff caused a seasonable and proper demand to be made upon the defendant for the goods, and the defendant failed to deliver them or inform plaintiff where they were. They were lost. That made a cause of action, and the defendant failed to show any legal justification in the premises.”

The issues of fact involved in the case were, as we have seen, conclusively settled in favor of appellee by the verdict of the jury and the judgment of affirmance in the Appellate Court. In our examination of the record we find no such error in the rulings of the trial court upon the instructions, or otherwise in respect to the law1 of the ease, as would justify a reversal. The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.

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


author: Mr. Justice Wilkin

text:
    The People ex rel. John Peair v. The Board of Education of Upper Alton School District.

      Filed at Springfield April 5, 1889.

    1. Schools—acts of superintendent as the acts of the board of education—as, in the assignment of pupils to the exclusion of colored children. "Where a bear’d of education pass a resolution giving the principal or superintendent of the schools full power and authority to make assignment of pupils to such rooms as in his judgment may seem best for the welfare of the schools, his act in excluding colored" children from a certain school will indirectly be the act of the board, and treated as their act.
    2. Same—colored children in the public schools. By the statutes of the State, the duty of providing schools for the education of all children between the ages of six and twenty-one years in their district, is imposed on all boards of education; and the statute also provides, that in the performance of this duty they shall not exclude from such schools, directly or indirectly, any such children on account of color.
    3. On an issue whether a board of education had excluded colored pupils from one of its schools where white children of all grades were admitted, an instruction, that unless the jury believed, from the evidence, that the board had excluded the children named, in the petition for mandamus from the public schools of the district, by a resolution, on account of color, they should find for the defendants, was held erroneous, as ignoring the fact whether such children were excluded from any of the schools. Under such instruction the jury could find for the relator only on proof that his children were excluded from all the public schools of the district.
    4. By another instruction given, the jury were told, that if they believed, from the evidence, that the board of education, in the exercise of a reasonable discretion, furnished to all of the children of the district of school age, facilities for a common school education, as in their judgment would best promote the education of the children and answer the purpose of the law, they should find for the defendants: Held, that by the instruction the requirements of the law were wholly ignored and the issue presented lost sight of.
    5. Mandamus—who may be relator. Any citizen of a school district may become relator in a proceeding by mandamus to compel those in charge of the public schools therein to admit any child or pupil who has been directly or indirectly excluded therefrom on account of color.

      6. Where the object of the writ is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen,’ in having the law executed and the right in question enforced.
    7. Same—demand and refusal—whether necessary. Where the duty sought to be enforced by mandamus is of a merely private nature, affecting only the right of the relator, a demand is necessary to lay the foundation for relief by mandamus. But if the duty, the performance of which is sought to be enforced, is a public*duty, resting upon the respondents by virtue of their office, no such demand and refusal are necessary.
    8. In respect to a public duty of members of a board of education or other public officers, the law itself stands in place of a demand, and the neglect or omission to perform the duty stands in the place of a refusal, for the purpose of enforcing the performance of the duty by mandamus.

    9. Same—special findings by jury, inconsistent with general verdict. On a petition for mandamus, special findings of the jury in response to questions of fact propounded to them, while not treated as special verdicts under the recent amendment to the Practice act, may be considered as findings of fact on the issues submitted, and when inconsistent with the general verdict, will prevail oyer the latter.
    This was a proceeding by mandamus, commenced in this court by John Peair, against the Board of Education of Upper Alton school district.
    This proceeding was begun by the relator, John Peair, at the January term of this court, 1888, to compel the respondents to admit his two children, Tony and Cora, to the high school building of Upper Alton school district, to be taught therein, with other children of the same grade,' without discrimination, it being alleged in the petition filed, that said children had been excluded therefrom on account of their color. By the answer of respondents, and the replication thereto, an issue of fact was raised, for the trial of which the case was certified to the circuit court of Madison county. A trial by jury in that court resulted in a general verdict in favor of respondents; but there were also several special findings returned, and these, with the general verdict, and a bill of exceptions containing all the evidence offered in the circuit court, have been certified back for our final determination of the cause. ■
    It is averred in the petition, that the board of education of Upper Alton school district is a corporation existing under and by virtue of an act of the legislature of this State, approved February 15, 1865, and an amendatory act, approved March 29,1869; that prior to 1886 said school board provided four school houses in said district, in three of which white children alone were admitted and taught, and in the other of which children of African descent, or colored children, only, were admitted and taught; that in 1885 and 1886 said board of education caused.to be erected in said Upper Alton a public school building, commonly called a.high school building, with ample room for the accommodation and instruction of all the children of said district, white and colored; that thereupon the three schools previously used for the white children were closed and discontinued, and that there is now no other common or free school in said district provided for white children than the high school building aforesaid, and all of said white children, whether in the primary, intermediate or high school grades, who desire so to do, are admitted by said board to said high school building, and all the grades of a common school education, primary, intermediate and high school, are taught therein to said white children according to their advancement in education; that on the Tth of October, 1886, said board passed a resolution, as follows:

      “Resolved, first, that if, after submitting to the customary examination for admission of white pupils to the high school, any colored children shall be found to have attained the requisite standing, such colored children shall be admitted to the high school; second, that all the grades taught in the white schools below the high school, shall be taught in the colored school.” —But said board has ever refused, and still refuses, to admit any of the colored children of said district into said high school building, as pupils, unless sufficiently advanced to enter the high school grades; that relator is a colored man; that he now resides and has long resided in said Upper Alton, and is a taxpayer therein; that he has several children, two of whom are named, respectively, Tony Peair and Cora Peair, aged six and nine years, who now reside and ever have resided with relator; that neither of them is qualified to enter the high school grades taught in said high school building; that upon the opening of said building for the reception of pupils, all white children who presented themselves for admission to any of the grades to be taught therein, whether primary, intermediate or high school grades, were received into said building, and have been since taught therein; that upon the opening of said building for the reception of pupils, and again on October 27, 1886, and again on December 21,1886, application was made at said building, to the principal in charge thereof, on behalf of said two children, for permission to attend school in said building, but such permission was refused by said principal, under orders from said board of education, for the reason that said children are colored, and for no other reason; that said board, as at present organized, is composed of Edward C. Lemen, Michael Low, Eranklin Moore, Robert R. McReynolds and George Johnson, and that relator has applied to each member thereof to grant said relator’s said two children permission to attend school in said high school buildipg, but without success, but each of said members has refused such permission; that relator has requested the president of .said board to call a meeting of said board for the purpose of granting said children admission to the schools taught in said high school building, but he refused to do so, upon the ground that the members of said board would not allow colored children to attend any school in said building below the high school grade, and that he and other members of said board advised relator to institute suit to test the question as to whether the colored children of said district have the right to attend school in said building below the high school grade; that he has used every means within his power, except legal proceedings, to obtain admission for his said children to said schools in said building, but without avail, etc., wherefore he prays a writ of mandamus, etc.
    Respondents, by their joint answer, admit the existence of said board of education of Upper Alton school district, as alleged in the petition, and that prior to 1886 schools were located and conducted in said district as averred by the relator; also, the erection of said high school building, and that upon the completion thereof the three schools previously used by white children were closed and discontinued, while that used by colored children was continued; they aver that the separate school for colored children, prior to 1886, was erected, organized and maintained at the instance and because of the preference of relator and other colored citizens of said district that their children should be educated in a school separate from the white children; they deny that there is no other common or free school for white children in said school district except the high school building, and aver that there are, and have been during the school years of 1886 and 1887, two common or free school houses kept open and maintained therein; they deny that the high school building contains ample room for the accommodation of the school children, white and colored, in said district; they aver “that Professor George W. Powell is the duly appointed, qualified and acting principal or superintendent of said school district, and in charge of all the schools thereof; that the said board of education of said school district, on the 20th of August, A. D. 1886, at a regular meeting thereof, passed the following resolution: ‘Professor Powell is given full power and authority to assign all pupils to such rooms as, in his judgment, he may deem best for the welfare of the school;’ and pursuant to the authority of said resolution, the said Professor Powell assigned and apportioned a part of the white children of said district to the school house formerly occupied and attended by the colored children of said district, and a part of the white children to the high school building; and defendants aver that in each of the said school houses the grades are the same, and the facilities for instruction entirely equal, below the high school' grades, and that the school children of said school district, whether white or colored, are admitted into the high school grade on equal terms; ” they admit that the children of relator, and other colored children of said district, made application, on the 27th day of October, 1886, and other days, to said Professor Powell, for permission to attend school in said high school building, and they aver that he, pursuant to the authority vested in him by virtue of the resolution passed by said board, requested and directed the children of relator to go and present themselves forthwith at the other said school building in said district, to be examined touching their qualification, so as to properly assign and apportion them to the different departments of said public graded school, as they should appear entitled to by virtue of such examination, and that relator’s children neglected and refused to comply with such request; they deny that said children were refused permission to attend school in the high school building on account of their color, and for no other reason; they admit that said school board consists of the members named in the petition, but deny that relator applied to them for permission for said children to attend school in said building, and that each of them refused the same; and they deny that relator requested the president of said board to call a meeting of the same for the purpose of granting permission to said children to attend school at said building, and that said president refused, or assigned the reason stated in said petition for refusing to do so, or that he, or any member of said board, advised the bringing of suit to test the right of colored children to attend school at such building; they aver that the said board has met, in regular meeting, on the first Tuesday in each and every month, during the school years of 1886 and 1887; that the place of said meetings was known to relator; that neither he, nor any one on his behalf, ever made a demand, directly or indirectly, on said board, for permission for said children to attend school in said high school building ; they deny that said children have been or are now unlawfully 'excluded from the schools of the high school building below the high school grades, on account of their color, and they aver that said children, and all the other colored children of said district, refuse to submit to an examination for assignment and apportionment to the graded school of said district, and have declared they will not attend any other school than that in the high school building.
    To this answer relator filed a replication, averring that the allegations of his petition are true, and denying all the averments therein by way of new matter.
    The general verdict was, “We, the jury, find for the defendants.” The special findings were in the form of answers to questions propounded to the jury at the instance of the relator. Those numbered 11, 18 and 19, in the record, are as follows :
    “11. When application was made, on the opening of said high school building for reception of pupils, and on other days mentioned in the petition herein, to the principal in charge of said building, on behalf of relator’s two children, for permission to attend school in said building, was such permission refused by said principal because said children were colored ? Answer, Tes. .
    “18. Have not the children of relator, John Peair, been excluded from attending school in said high school building by the defendants on account of the color of said children? Answer, Tes.
    “19. When the colored school children applied for admission to said high school building, and were directed by said George W. Powell to go to the colored school forthwith for examination, was it not the intention of said Powell to assign all of said colored children to said colored school, and not to allow any of them to attend school in said high school building except such as might be sufficiently advanced to enter the high school grade? Answer, Yes.”
    To the several questions, Whether or not relator applied to the board for permission to send his children to said high school building ?—Whether or not he applied to the president of the-board to call a meeting of the same for the purpose of having it grant permission to his said children to attend school in said building ?—Whether the president, or other members of said board, advised relator to bring suit to test his right to send his said children to said building to school ?—Whether a committee of colored people of said district called upon said board between the 1st and 11th of December, 1886, to know whether or not colored children would be permitted to attend school at said high school building ?—And whether or not S. P. Yerkes, a member of said board, addressed the colored people of said district, on the 11th of December, 1886, at a meeting of said colored people called in pursuance of notice from said board, and whether said Yerkes did not then inform said colored people that he was authorized by said board to tell them they could not send their children to school at said building, but must send them to the colored school, and if they got them in said high school building they would have to do it by law ?— the jury, to each of such questions, returned their answer in the negative. To the .question, Did Professor Powell, prior to the filing of relator’s petition, assign a part of the white school children of said district to the school formerly occupied by the colored children ?—they answered, Yes.
    Messrs. Wise & Davis, for the relator:
    Boards of education are prohibited from excluding, directly or indirectly, any child, of proper age, from any public school on account of the color of such child. Rev. Stat. chap. 122, sec. 105; People v. Board of Education, 101 Ill. 308.

      The circuit court, notwithstanding the plain language of the statute, instructed the jury, that unless they believed, from the evidence, that the board of education excluded the children named from the public schools of the district by a resolution of said board, on account of color, passed and entered of record, the j ury should find for the defendants. Under such pernicious instruction the jury could not do otherwise than return a general verdict for the defendants.
    When it is understood that up to the time of the erection of the high school building there had been but one school in Upper Alton to which colored children were admitted, the following resolution of the board, passed October 7, 1886, has special significance:

      “Resolved, first, that if, after submitting to the customary examination for admission of white pupils to the high school, any colored children shall be found to have attained the requisite standing, such colored children shall be admitted to the high school; second, that all the grades taught in the white schools below the high school shall be taught in the colored school.”
    This is nothing more or less than a resolution excluding colored children from the high school building on account of their color, in all cases when they are not sufficiently advanced .to enter the high school.
    Mr. A. W. Hope, for the respondents:
    The petition, which takes the place of the alternative writ, runs in the name of John Peair v. Board of Education. The writ must run in the name of the People. Addison on Torts, (Wood’s ed.) see. 1510, p. 769, and notes; School Inspectors v. People, 20 Ill. 530; People v. Hatch, 33 id. 134; People v. Glann, 70 id. 232; People v. Board of Police, 26 N. Y. 316.
    The board is a corporation, and can only act in its corporate capacity at a meeting regularly called, when a quorum of the members are present. 1 Dillon on Mun. Corp. sec. 230.

      There is nothing in the petition to show that the board was ever petitioned, or ever had this matter before them, or ever acted upon it. McManus v. McDonough, 107 Ill. 103; Commissioners v. Baumgarten, 41 id. 254.
    The petition should set forth the corporate acts or resolutions of the board, that the court may see what they are, and not merely the pleader’s conclusions. 1 Dillon on Mun. Corp. notes to secs. 347, 348; 2 Addison, sec. 244, and note, p. 360, and note; High on Ex. Legal Rem. sec. 536.
    The petition must show a clear right to the relief demanded. The material facts must be distinctly set forth, so that they may be admitted or traversed. High on 'Ex. Legal Bern. sec. 537.
    Great precision is required in the form and contents of the alternative writ. High on Ex. Legal Bern. sec. 538; Canal Trustees v. People, 12 Ill. 254; People v. Brooks, 57 id. 142.
    The petition fails to aver that the children of the petitioner have conformed to all of the reasonable rules and regulations prescribed, relative to admission to the schools of the district.
    The board of education are clothed with large discretionary powers by virtue of the act of incorporation, judicial in their nature, and subject to be controlled by the courts only when abused. Act of 1869, secs. 6, 7; People v. Board of Education, 101 Ill. 310.
    The rule is, you have no right to provide educational facilities for the white man that you do not afford the negro. See Cooley on Torts, 287, and authorities quoted in note; Chase v. Stephenson, 71 Ill. 383; People v. Board of Education, 101 id. 308.
    In Chase v. Stephenson it was" held that a discrimination, under the law, meant a denial of equal facilities for instruction. People v. Board of Education, 101 Ill. 315.
    Mr. W. P. Bradshaw, also for the respondents.
   Mr. Justice Wilkin

delivered the opinion of the Court:

On the principal question involved in this controversy, viz., did respondents exclude relator’s children from the high school building of Upper Alton school district on account of color, the finding of the jury must be held to be adverse to respondents. The eighteenth special finding is directly and positively so, and the eleventh and nineteenth, to the effect that they were so excluded by the principal of said school, are so in effect. The resolution of respondents, August 20, 1886, set out in the answer, vested full power in said principal to assign all pupils in said district; therefore, what was done in that respect by the principal, was indirectly done by respondents. We think these special findings are supported by the evidence, and while they are not treated as special verdicts under the recent amendment to our Practice act, they are in this proceeding proper to be considered as findings of fact on the issues submitted to the jury. Even if the general verdict could be said to be a finding in respondents’ favor on this branch of the ease, it is so manifestly the result of misdirection by the court as to be entitled to no consideration.

• By one instruction, the jury are told that “unless you believe, from the evidence, that -the board of education of Upper Alton excluded the children named in the petition from the public schools of Upper Alton, by a resolution of said board of education, on account of color, passed and entered of record, then you should find for the defendant.” By the statute, it is made unlawful to exclude a child from any of the public schools of Upper Alton district on account of color. By the instruction, the jury could only find for relator on proof that his children were excluded from all the public schools of said district. By the statute, it is made unlawful to exclude a child from a public school on account of color, either directly or indirectly; but here the jury are told they must find for respondents unless they believe relator’s children were excluded by a resolution entered of record.

By another of the series of instructions asked by and given on behalf of respondents, the jury was told: “If you believe, from the evidence, that the board of education, (defendants,) in the exercise of a reasonable discretion, furnished to all the children of Upper Alton school district, of school age, facilities for a common school education, as in their judgment would best promote the education of the children and answer the purpose of the law, the jury will find for the defendants. ” Here, again, the requirements of the statute are wholly ignored, and the issue presented by the pleadings entirely lost sight of. Under these instructions the jury could do no less than return a general verdict for defendants; but that verdict is no indication as to what view of the evidence they would have taken on the question now under consideration if they had been properly instructed, while the special verdicts do clearly show .that the jury found, from the evidence, that relator’s children had been excluded from said'school by respondents on account of color.

A careful reading of all the evidence before us forces the conviction that it was the purpose of respondents to require the children of relator, and all other colored children of the district, to attend what had been known as the colored school building, and to exclude all colored children of the district, below the high school grade, from the high school building. Especially are we convinced that these children were practically excluded from the said high school building by-the principal because they were colored children, and that respondents, though informed of that fact, took no steps to have them admitted.

But respondents maintain, that even though this principal question is resolved in relator’s favor, still he can not have a peremptory writ of mandamus, because he has failed to show an express demand by him upon respondents that his children should be so admitted, and their refusal, before filing his petition. The jury has found, as is shown by the foregoing statement of facts, that no such demand was made; therefore, if the position of respondents is legally correct, the general verdict must be sustained, and the prayer of the petition denied.

The argument in support of the proposition that a formal demand and refusal must be shown, is based upon the assumption that the duty here sought to be enforced is of a private nature, affecting only the right of relator, the law being, that in such case a demand is necessary to lay the foundation for relief by mandamus. If, on the contrary, the duty,' the performance of which is sought to be enforced, is a public duty, resting upon respondents by virtue of their office, it is equally well settled that no such demand and refusal are necessary. (High on Ex. Legal Bern. sec. 41, and authorities cited.) The duty here sought to be enforced is not of a private nature, nor is the right demanded by relator merely an individual right, within the meaning of the rule announced. By the statutes of this State, the duty of providing schools for the education of all children between the ages of six and twenty-one in their district, is imposed upon respondents. The legislature has also, by express enactment, provided, that in the performance of that duty they shall not exclude from such schools, directly or indirectly, any such child on account of its color. The duty thus imposed upon respondents is incumbent upon them by virtue of their office. In such case it has been well said, “the law itself stands in the place of a demand, and the neglect or omission to perform the duty stands in the place of a refusal, or, in other words, the duty makes the demand, and the omission is the refusal.”

Again, the right claimed by the relator is not merely a personal right. True, he may, and doubtless does in this particular case, have the peculiar interest of a parent in having his children admitted to a school in which he thinks they have a right to be taught; but after all, it is the public,—the community at large,—that is most deeply interested in the enforcement of this and all other laws enacted for the wise and humane purpose of educating the children of the State. While it was natural and appropriate that the father should become the relator, we entertain no doubt that any citizen of the school district might, with equal right of law, have done so, and maintained the petition. In County of Pike v. The People, 11 Ill. 208, it is said: “Where the object is the enforcement of a

public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the law executed and the right in question enforced.” See, also, City of Ottawa v. The People ex rel. 48 Ill. 240; Hall et al. v. The People ex rel. 57 id. 312; Village of Glencoe v. The People, 78 id. 390.

A formal demand and refusal were not necessary preliminary to the filing of the petition, and therefore the special findings of the jury on that question can have no controlling influence upon the general verdict or the decision of the case.

The powers of school boards to adopt and enforce rules for the management and government of schools, to assign pupils to the several schools in their districts, (making no distinction on account of color,) to expel pupils for disobedience or misconduct, or the proper exercise of discretionary power, are not called in question by this proceeding.

Adhering to the doctrine announced in The People ex rel. v. Board of Education, 101 Ill. 308, on the special findings of fact by the jury, the prayer of the petition is allowed, and á writ of mandamus ordered.

Mandamus ordered.