author: Mr. Justice,Bailey

text:
    Clifton H. Moore, Admr. v. Peter T. Sweeney, Admr.

      Filed at Springfield

      April 5, 1889.

    1. Appeal—from Appellate Court—whether it will lie. When a case determined in the Appellate Court does not involve either a freehold, a franchise or the validity of a statute, and the record contains no certificate of the judges of that court that it involves questions of law of such importance, on account of principal or collateral interests, that it should be passed upon by this court, and the amount involved is less than $1000, no appeal will lie from the judgment of the Appellate Court.
    2. The administrator of a deceased widow had appraisers appointed to appraise her deceased husband’s estate, who appraised the property left by the husband at $32.75, and fixed the widow’s award at $700. The administrator of the widow’s estate selected the personal property, and elected to take the residue ($667.25) in money, which was allowed against the husband’s estate as a second class claim. On appeal to the circuit court this claim was disallowed, and this judgment was affirmed by the Appellate Court: Held, that as the amount involved was less than $1000, and no certificate of importance was given, no appeal lay from the judgment of the Appellate Court.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Moore & Warner, for the appellant:
    The court erred in refusing to mark as either “held” or “refused,” the written proposition of law submitted by appellant. Rev. Stat. chap. 110, sec. 42; Calef v. Thomas, 81 Ill. 478; Kepperly v. Ramsden, 83 id. 354; FarwellY. Shove, 105 id. 61; Sexton v. Chicago, 107 id. 323; Hardy v. Rapp, 112 id. 359; Barber v. Hawley, 116 id. 91; Kelderhouse v. Hall, 116 id. 147; Benefit Aid Association v. Hall, 118 id. 169.
    The question attempted to be raised by appellee in this proceeding, as to whether the appellant, as administrator of the estate of the deceased widow of Isaac Loucks, was entitled to have her widow’s award estimated and set off to him, as such administrator, out of the estate of her deceased husband, having been prior to this appeal decided in favor of appellant by the county court, from which decision appellee prosecuted an appeal to the circuit court, where the judgment of the county ■court was affirmed, and from which last decision appellee failed to take an appeal, is res judicata. Bowen v. Allen, 113 Ill. 53; Umlauf v. Umlauf, 117 id. 580; Garrick v. Chamberlain, 97 id. 620; Cemetery Co. v. McCrea, 92 id. 619; Railroad Co. v. Peterson, 115 id. 597; Newberry v. Blatchford, 106 id. 584; Knowlton v. Hanbury, 117 id. 471; Attorney General v. Railroad Co. 112 id. 520; Bennitt v. Mining Co. 119 id. 9.
    The widow’s failure to renounce the benefit of the provision in her husband’s will does not defeat her right to the widow’s award. Rev. Stat. chap. 3, sec. 76; Deltzer v. Scheuster, 37 Ill. 301.
    The widow’s award is an exemption, and her right to it is vested in her by the law immediately upon the death of her husband. Miller v. Miller, 82 Ill. 467; York v. York, 38 id. 522; McCord v. McKindley, 92 id. 11; People v. Bradley, 17 id. 485.

      That portion of a widow’s award which is chosen in money is a demand against the estate of her deceased husband, and the sale of realty may be resorted to' for its satisfaction. Rector v. Reavill, 3 Bradw. 232; Deltzer v. Scheuster, 37 Ill. 301.
    The administrator of a deceased widow may recover the value of his intestate’s award. York v. York, 38 Ill. 522.
    There was no laches on the part of appellant or his deceased intestate that will prejudice his or her right to the award. Furlong v. Riley, 103 Ill. 628.
    Mr. P. T. Sweeney, for the appellee:
    The refusal of the court to hold the proposition of law asked, worked no prejudice to the appellant, and is, therefore, no cause for a reversal.
    The widow was not a creditor of her husband’s estate until her relinquishment of her right to take the specific articles given her by the statute, and her election to take in money. (Cruce v. Cruce, 21 Ill. 46.) This election must be made in her lifetime. Having taken all the property as devisee and legatee, her administrator is estopped from claiming her award after her death. Having sold the land and received its proceeds, she could not, if living, subject it to the payment of her' award.
    The order of the court appointing appraisers was not an adjudication of the rights of the widow. That could not arise until the presentation of her claim for allowance.
   Mr. Justice,Bailey

delivered the opinion of the Court:

This case comes here on appeal from a judgment of the . Appellate Court, and the appellee moves to dismiss the appeal on the ground that less than $1000 is involved. It is clear that the case involves neither a franchise or freehold or the validity of a statute, and the, record contains no certificate of the judges of the Appellate Court that the case involves questions of law of such importance, on account of principal or collateral interests, that it should be passed upon by this court. If then less than $1000 is involved the appeal must be dismissed as being unwarranted by the statute. The facts are briefly these:

On the 25th day of June, 1879, Isaac Loucks died in Clinton county in this State, leaving a will by which he devised and bequeathed all his property to Larney Loucks his widow, and appointed her his sole executrix, requesting that she be not required to give bond or file an inventory. The property left by the testator consisted of household furniture worth about $50 and the premises occupied by him as a homestead of the value of about $300. On May 15,1882, the widow presented the will to the county court and it was admitted to probate, but she never took out letters testamentary. On the same day she mortgaged the homestead lot by an incorrect description to one Bishop to secure the payment of $179.80, and on the 28th day of June following she conveyed it absolutely by a correct description to one Basbach, who afterward conveyed it to one Lewis. Having also converted to her own use all the personal property without taking further steps in the administration of the estate, she removed to the State of Hew York, and there died about April 15, 1884.

In December, 1884, on petition of appellee, a creditor of Isaac Loucks, letters of administration with the will annexed were granted by the county court of DeWitt county to John J. MeGraw, and appellee’s claim for $501 having been presented and allowed, a petition was filed for leave to sell said real estate for its payment, Bishop and Lewis and Lewis’ tenant then in possession being made parties defendant. Said petition was dismissed by the county court, but on appeal to the Circuit Court the order of dismissal was set aside and an order of sale entered in accordance with the prayer of the petition. This latter order was affirmed on appeal by the Appellate Court. Bishop then procured the appointment of the appellant as administrator of the estate of Larney Loucks, the ■ letters of administration being issued March 4,1886. About ¡ this time McGraw died, and the appellee being appointed ad-; ministrator de bonis non in his place, sold the homestead under; the decree of the Circuit Court to one Edward J. Sweeney for $260, and made report of the sale to the Circuit Court, which' was approved.

Proceedings were then taken by appellant as administrator of Larney Loucks to have appraisers appointed to appraise the estate of Isaac Loucks and to set off and allow to him as such administrator the widow’s award in the last named estate or the value thereof. Such proceedings were thereupon had in the county court that appraisers were appointed who appraised the personal property belonging to said estate at $32.75, and fixed the amount of the widow’s award at $700. This award having been approved by the County Court, the appellant selected the personal property inventoried at its appraised value, and elected to take the residue, viz., $667.25, in money. Judgment was thereupon entered in his favor for that amount, as a claim of the second class, to be paid in due course of administration. On appeal to the Circuit Court that judgment was reversed, and a judgment entered disallowing said claim. On appeal to the Appellate Court the judgment of the Circuit Court was affirmed, and the judgment of the Appellate Court is brought here for review.

The only question involved in the case is the right of the appellant to the balance of the widow’s award not satisfied by the personal property selected, such balance being only $667.25. The appeal to this court therefore was taken without authority of law, and it must be dismissed.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    William J. Brownell v. Elisha B. Steere.

      Filed at Springfield

      April 5, 1889.

    1. Partnership—compensation to partner for services. One partner ■can not charge the firm or his co-partner for his services in attending to the partnership business, unless there is a special agreement among the partners entitling him to do so.
    2. Same—reimbursing partner for expenses in defending suit. After the dissolution of a partnership a former clerk sued the firm for his services, and recovered judgment therefor. One of the partners defended the suit, and paid out certain moneys for costs and attorney’s fees, which were not shown to be excessive or unnecessary: Held, that the amounts so paid were properly charged to the firm in stating the partnership account.
    3. Same—sale of partnership stock to one of the partners—action of arbitrators. On the dissolution of a firm an invoice of the stock on hand was taken, and it was agreed that arbitrators should offer the stock for sale to the two partners, and that the one bidding the larger amount should take the goods, and the price bid should be treated in the settlement of the partnership account the same as the goods, and the matter of the settlement was referred to the arbitrators. Their award was set aside : Held, on bill to adjust the partnership matters, that the setting aside of the award did not operate to vacate the sale, and that the purchaser was properly charged with the amount of his bid for the goods.
    4. Same—interest—as between partners. Interest is not allowable on the settlement of partnership accounts, where no unreasonable delay or improper use of the partnership funds is shown.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean ■county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. John E. Pollock, for the appellant:
    There is no inflexible rule of law that one partner shall not recover for extraordinary services without an express agreement therefor. Lewis v. Moffett, 11 Ill. 399.

      An agreement to pay one partner for services may be implied from the circumstances of the case. Bradford v. Kimberly, 3 Johns. Ch. 451; Emerson v. Durand, 64 Wis. 118; Caldwell v. Lieber, 7 Paige, 483; Levi v. Kerrick, 13 Iowa, 344; Godfrey v. White, 43 Mich. 171; Cramer v. Bachman, 68 Mo. 310; Marsh’s Appeal, 69 Pa. St. 35; Reynolds v. Mardis, 17 Ala. 72; Moritz v. Perbles, 4 E. D. Smith, 135; Story on Partnership, (3d ed.) 293.
    The award of the arbitrators having been set aside, the submission should also fall with it. Morse on Arbitration, 456; Steere v. Brownell, 113 Ill. 415; Alfred v. Railroad Co. 92; id. 609.
    The decree improperly states the account between the parties.
    Exceptions to the master’s report wherein he allowed interest to Steere, were properly sustained. Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, id. 592; McCormick v. Elston, 16 id, 204; Aldrich v. Dunham, id. 403; Railroad Co. v. Cobb, 72 id, 152; Newland v. Shafer, 38 id. 379; Daniels v. Osborne, 75 id. 615; Jassoy v. Horn, 64 id. 379; Davis v. Kenaga, 51 id. 170; Chapman v. Burt, 77 id. 337; Devine v. Edwards, 101 id. 138; Beddell v. Janney, 4 Gilm. 193.
    Messrs. Kerrick, Lucas & Spencer, for the appellee:
    In the absence of a special agreement to that effect, a partner can not have compensation for his services in and about the firm business. Roach v. Derry, 16 Ill. 37; Thornton v. Thornton, 1 Austr. 94; Hanks v. Baber, 53 Ill. 292; Askew v. Springer, 111 id. 663; Kimball v. Lincoln, 5 Bradw. 322; Strattan v. Tabb, 8 id. 227; Fover v. Fover, 29 Gratt. 134; Randall v. Richardson, 53 Miss. 176; Brown’s Appeal, 89 Pa. St. 147; 2 Bindley on Partnership, 774; Bates on Partnership, sec. 770 ; Collyer on Partnership, sec. 183; Parsons on Partnership, 130; Strong on Partnership, 182.
    •Setting aside the award did not set aside the sale of the goods. The contract of sale was not affected thereby.

      The court erred in refusing to charge the appellant with interest. Bates on Partnership, sec. 786.
    An agreement for interest is implied from a usage crediting interest on the books before and after the time in question. Miller v. Craig, 6 Beav. 433; Pratt v. Holton, 11 La. Ann. 260.
    Interest should always be charged against a partner who unnecessarily delays accounting, or who uses the partnership funds about his own business. Derby v. Cage, 38 Ill. 27; Liganre v. Peacock, 109 id. 94; Stroughton v. Lynch, 1 Johns. Ch. 467; Johnston v. Hartshorne, 52 N. Y. 177; Broling v. Dobyns, 5 Dana, 434; Honore v. Comesnil, 7 id. 199; Taylor v. Young, 2 Bush, 428; Dunlap v. Watson, 124 Mass. 305; Crabtree v. Randall, 133 id. 552; Wells v. Babcock, 56 Mich. 276; Dimond v. Henderson, 47 Wis. 172; Bates on Partnership, sec. 788; 2 Bindley on Partnership, 977.
   Mr. Justice Magruder

delivered the opinion of the Court:

This case is now before us for the second time. Our former decision of it is reported as Steere v. Brownell, 113 Ill. 415. The main facts are there stated and it is not necessary to repeat them here. After the reversal of the cause and its reinstatement in the Circuit Court, it was referred to a master to state an account between the partners. The hearing was had upon exceptions to the Master’s report, all of which were overruled, except two, and a decree was rendered by the Circuit Court in favor of appellee Steere, who was complainant below, and against appellant, the defendant below. This decree has been affirmed by the Appellate Court, and is brought here by appeal from the latter court.

Appellant and appellee, during their partnership, under the firm name of W. J. Brownell & Co., from January, 1877, to January, 1882, had in their service a man by the name of John P. McLean. McLean was book-keeper, salesman, buyer and chief clerk in the store, which was a retail boot and shoe store in Bloomington. Appellee furnished one half the capital, but he devoted but little time or attention to the business, leaving its management to appellant, who furnished the other half of the capital.

In stating the account, the Master charged McLean’s salary for the five years to the firm, thus compelling each partner to pay half of it. Appellant claims that the whole of such salary should have been charged to appellee, and that he, appellant, should not have been required to pay any of it. This claim has its basis in the fact, that appellant managed the business, while appellee gave it but little attention, and the allowance of such claim would be tantamount to giving appellant extra compensation for his services in behalf of the firm. It is well settled, that one partner can not charge the firm, or his copartners, for his services in attending to the partnership business, unless there is a special agreement among the partners entitling him to do so. (Roach v. Perry, 16 Ill. 37; Hanks v. Baber, 53 id. 292; Askew v. Springer, 111 id. 662.) In the present case appellant sought to establish such an agreement by parol testimony. The lower courts found against him upon this point, and we are not prepared to say, that their finding is not sustained by the evidence.

In January, 1877, one Bugg was doing a boot and shoe business in Bloomington. He failed, and his stock, which was sold at sheriff’s sale, was purchased by appellant and appellee, who stepped into Bugg’s place and continued the business at the same stand. McLean had been clerk for Bugg and continued to act for the new firm. Appellant swears, that appellee said he would pay McLean the same wages which Bugg had been paying him. One Bichardson swears, that he heard appellee say, that McLean represented his, appellee’s, interest in the firm. M. D. Sliter also testifies, that he heard McLean say, that the latter was representing Steere’s interest. On the other hand, appellee swears positively that he made no agreement to pay McLean’s salary. McLean also testifies that he knew of no such agreement, and that he was never told by either Brownell or Steere, that the latter was to pay his salary. During the five years of the existence of the firm, McLean paid himself monthly out of the monies of the* partnership without objection or complaint by appellant. Many other circumstances, disclosed by the record, tend to show that McLean was always regarded as the employee of the firm, and not exclusively of Steere, until a few days before the dissolution in 1882 when appellant charged the account to appellee.

Appellant further complains that, in the accounting, the Master charged him with the price he paid for the stock at the sale of it, and not with the actual value of the stock, which is claimed to have been only from 65 to 75 cents upon the dollar of the invoice price. By reference to Steere v. Brownell, supra, it will be seen that, by the agreement, dated January 3,1882, the firm was dissolved, the store was to be closed, an invoice was to be taken of the stock on hand, and the three arbitrators were to “immediately offer such stock for sale to the said Steere and Brownell and * * * sell it to the one, who shall offer the largest per cent on the said invoice price; and upon the payment to such arbitrators of one half of such bid, said arbitrators shall deliver the stock to such purchaser,” etc. The invoice was made and the goods were offered for sale. Each party bid. Appellee’s last bid was $1.03; appellant bid $1.04; the stock was sold to him, and he took possession. It is said, that, inasmuch as the award has been set aside, the part of the agreement, thus providing for a sale, was also set aside, and, consequently, that appellant should not be charged upon the basis of his bid, that is to say, $1.04, but upon the basis of the actual value of the stock as above stated.

The setting aside of the award did not set aside the sale. The sale was no part of the award; it was to be made before the arbitrators proceeded to a hearing.' Appellee, having bought the stock, could dispose of it, before the arbitrators rendered their decision. The price, at which the property was sold, was to be treated, in making the award, as the stock would have been treated if there had been no sale. We do not think that the accounting was erroneous in the respect here indicated..

After the dissolution McLean sued the firm for the balance due him on his salary and recovered judgment. Appellant defended the suit, and paid out certain monies for costs and attorneys’ fees. These amounts were charged to the firm, and, we think, such charge was proper. They were expended for the benefit of the firm, and are not shown to have been excessive or unnecessary.

.The Circuit Court disallowed a charge against appellant for interest, and appellee assigns such disallowance as cross-error. We do not think there has been any such delay in accounting, or any such improper use of partnership funds as to entitle the appellee to charge appellant with interest.

Several other minor points are urged upon our attention, but after a careful consideration of the whole record, we think justice is done by the decree of the court helow.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin

text:
    Tilford T. Shoot v. Carrie C. Galbreath.

      Filed at Springfield

      April 5, 1889.

    1. Do web—right of the widow—generally. Under the statute of 1845, and also under the present statute, upon the death of the husband, dower in the wife becomes consummate in all cases when he dies intestate ; and the question as to what class of heirs he leaves, or, in fact, whether he leaves heirs or not, is of no consequence. Should the fee be disposed of to others, either by the Statute of Descents or by a sale to pay debts, this dower right continues to exist, and can only be divested by the voluntary act of the widow.
    2. Same—•merger of dower right in a larger estate. Should the widow, however, become the owner of land in fee, or any part of it, her dower, ¡as in other cases where a greater and lesser estate unite in the same person, is merged in the fee, and, of course, can not be asserted.
    3. Same—in ease of death of husband without issue. Since the Statute ■of Descents of 1872, and the Dower act of 1874, as was the rule under the act of 1845, should the husband die without leaving lineal descendants, his widow will take, as heir, one-half of his lands, and will be ■entitled to dower in the other half thereof.
    4. Same—relinquishment of dower—effect of widow making deed as -administratrix. A widow, who in her capacity as administratrix makes a deed for lands of her deceased husband sold under a decree of court to pay debts, does not thereby relinquish her dower in such land, unless it is so specified in her deed, or she makes statements or does acts •calculated to mislead the purchaser.
    '5. Same—damages for non-assignment of dower—requisites of the bill —time to object. A widow is entitled to damages for the non-assignment of dower from the time of the filing of her bill for dower, that being, in law, a demand. The damages, however, should be claimed in the bill, by amendment or otherwise. But when both parties offer •evidence on the question of damages, without objection, in the court below, the objection that the bill makes no such claim comes too late when made for the first time in this court.
    Writ of Error to the Circuit Court of Coles county; the Hon. James E. Hughes, Judge, presiding.
    Messrs. Connolly & Mather, and Mr. A. J. Fryer, for the plaintiff in error:
    The statute of 1845 expressly saved to the widow her dower, which is not the case in the revision of 1874.
    It would seem that the legislature, by giving one-half of -the real estate and all the personalty to the widow, and by ■express language vesting the other half in the next of kin, intended that the same should thus descend without incumbrance of dower, or else it would have been reserved, as in the law of 1845.
    Under the sixth clause of the Statute of Descents the widow -takes the entire estate. How could it be claimed in that case that if the lands were sold to pay debts she would still be entitled to dower? Not at all. The lesser estate would be-merged in the larger. So in the case of her taking one-half. .Such widows must do as other heirs. They must first pay the decedent’s debts before taking anything.
    The decree is erroneous in awarding execution against the plaintiff in error for the amount found as rent. There was no-claim for rent in her bill for dower.
    Defendant in error sold the premises at public sale without making any claim of dower, and should be estopped from now asserting such claim.
    Messrs. Wiley & Neal, for the defendant in error:
    There can be no possible question about what the law wan prior to 1872, when there was a surviving widow and no child or children, or descendants of child or children. The widow took one-half of the land in fee and dower in the other half. Tyson v. Postlethwaite, 13 Ill. 727; Tyler v. Tyler, 19 id. 151; Cross v. Carey, 25 id. 564; York v. York, 38 id. 522; Brown v. Pitney, 39 id. 468; Sutherland v. Sutherland, 69 id. 481.
    The change in 1872 consisted in dropping the words, “saving-to the widow, in all cases, her dower, as provided by law.”
    It is true that defendant’s fee simple right vests only after debts are paid; but we can not agree with the attorneys for plaintiff in error that her dower interest is in abeyance until then. It has never been held, where the common law is in-force, that creditors could sell the dower of a widow, and we do not imagine it ever will be so held until the legislature so-enacts in unmistakable language.
    Tn Cool v. Jackman, 13 Bradw. 561, Mr. Justice Bakes, in the opinion of the court, says : “So far as concerns the wife, the right of dower is the same under our present statute that it was at the time of the marriage and under the statute of 1845. The widow then was and now is endowed of the third part of all the lands whereof the husband was seized of an estate of inheritance at any time during the marriage, unless the same had or has been relinquished in legal form.”
    It is further claimed that the decree is erroneous in awarding appellee damages for non-assignment of dower, when the bill did not claim any such damages. Section 41, chapter 41, entitled “Dower,” Starr & Curtis’ Statutes, expressly provides that complainant shall be entitled to recover such damages, and that execution may issue therefor. As to the point that there is no prayer for such damages in the bill, it was only after the filing of the bill that complainant was entitled to any damages, there being no evidence in the record that there was any demand for assignment of dower prior to filing the bill. Bringing suit for dower is deemed a valid demand. Bonner v. Peterson, 44 Ill. 253.
    It is further claimed that defendant in error sold the premises at public sale without making any claim or giving notice of any claim of dower, and that the purchaser paid a fair price for the premises as unincumbered. There is no evidence that he paid any more than the premises were worth subject to dower. And he was bound to know the law, and to know that unless dower was released, defendant had her dower in said premises.
    The claim of estoppel is fully answered by section 46, chapter 41, of Starr & Curtis’ Statutes, which is as follows: “No person who sells and conveys lands by order of court, for the payment of debts, shall be deemed to have relinquished, by reason of such conveyance, any right of dower which he or she may have in such lands, unless his or her relinquishment is specified in the deed or conveyance.” • ■
   Mr. Justice Wilkin

delivered the opinion of the Court:

On the 9th of February, 1887, defendant in error filed her bill in chancery, against plaintiff in error, in the Coles circuit court, for the assignment of dower, and on the 15th of May, 1888, obtained a decree for one-third part of the premises described in her bill, as and for her dower, and the sum of $45 as damages for the non-assignment thereof, with an order that in default of payment of said damages within twenty days, execution should issue for the same. By the same decree commissioners were appointed to assign the dower. From that decree this writ of error is prosecuted, and a reversal insisted upon, because, as is said, defendant in error has no dower rights in the premises, and because, on the issues, the court below could not legally assess damages and order execution therefor.

The material facts are admitted. Defendant in error and William B. Galbreath were married June 1, 1885. He died October 1 thereafter, leaving her surviving him, and also his parents and several collateral relatives, but no lineal descendants. During the marriage the husband was seized in fee, and owned at the time of his death, real estate situated in doles county, a part of which is described in this bill. Defendant in error and A. J. Fryer, Esq., were duly appointed administrators of his estate, and in June, 1886, obtained from the county court of said county a decree to sell real estate to pay debts theretofore probated and allowed against the same. In pursuance of this decree, the lands involved in this suit were sold to plaintiff in error, and an administrator’s deed executed therefor without relinquishment of the widow’s dower. Plaintiff in error went into possession, and held the same, en-j oying the rents and profits from and after the filing of this bill, to the rendition of said decree. Other lands of said estate remained, after the payment of all debts, of the value of $8000, out of which the widow received as heir some $3000.

It is first insisted, on behalf of plaintiff in error, that inasmuch as the deceased husband left no child or children, or descendants thereof, and by the statute' of this State in such case, after the payment of his debts, one-half of his real estate and the whole of his personalty descended to his widow as an absolute estate forever, she is entitled to no dower in this land, —or, more succinctly stated, the proposition sought to he maintained is, that the widow of a husband dying intestate without lineal descendants, is not, under our statute, entitled to dower in any of the lands of which her husband was seized during the marriage. Under the statute of 1845, it was often held that the widow of a husband so dying was entitled to dower in the half of the real estate of which he was seized during the marriage which she did not inherit, and these decisions must be accepted as decisive of the question here raised, unless it shall appear that the legislature intended to adopt a different rule by the statute of 1872, now in force. The two statutes are not materially different, except that the 46th section of the statute of 1845, entitled “Wills,” (which defined the rights of a widow when there was no child or children,) contained the clause, “saving to the widow, in all cases, her dower, as provided by law,” whereas the present Statute of Descents (to which the foregoing subject is transferred) is silent as to dower. The omission, “saving to the widow,” etc., in the statute of 1872, it is contended, shows an intention on the part of the General Assembly to change the law of dower in such cases as it existed under the former statute. The Dower act passed in 1874, now in force, provides that a surviving wife shall be endowed of the third part of all the lands whereof the deceased husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. If it could be said that this statute, and the Statute of Descents passed in 1872, are in conflict, the Dower act, being the latest expression of the legislative will, would control, and give the widow the same dower rights which she had under the statute of 1845. There is, however, no conflict in these statutes. As before said, the Statute of Descents is silent on the subject of dower. The Dower act expressly gives the widow dower in all the lands whereof the husband was seized, etc., and hence, by giving effect to the language of both statutes, the dower right attaches to the half not descending to the widow, as clearly as though the clause in the 46th section of the Statute of Wills of 1845 had been retained.

As no difficulty was found in giving practical effect to the statute of 1845, none, we apprehend, will be encountered in carrying out the construction here given to the present law. Under both statutes, upon the death of the husband, dower in the wife becomes consummate, in all cases when the husband dies intestate, and the question as to what class of heirs he leaves, or in fact whether he leaves heirs or not, is of no consequence. If the fee is disposed of to others, either by the •Statute of Descents or by sale to raise assets to pay debts, this dower right continues to exist, and can only be divested by the voluntary act of the widow. If she becomes the owner of the land in fee, or any part of it, her dower, as in other cases where a greater and lesser estate meet in the same person, is merged in the fee, and, of course, can not be asserted.

To hold, as is contended, that because, under the third clause of section 1 of the Statute of Descents, a widow may become the owner in fee of one-half, or, under the sixth clause, of the entire estate, therefore, whether she does in fact become such owner or not, she shall, in such case, have no right of dower, would in many cases deprive her of all means of support from the real estate of her deceased husband. However much real property he might die seized of, if all should be required to pay -debts the .widow would receive nothing. The debts of the husband may, and often do, in such cases, defeat the wife’s claim to any portion of the real estate in fee, but they can not affect her right of dower. Of that right she can only be deprived by her own voluntary relinquishment in legal form. We hold that the decisions made under the statute of 1845 are equally applicable to the present law, and are decisive of appellee’s right to dower in the lands in question.

It is said, however, that inasmuch as the widow in this case joined with her co-administrator in making a sale and executing an administrator’s deed for these premises without mating any claim, or giving any.notice of a claim, to dower therein, she should now be estopped from asserting such right, even though it did exist. Section 46, chapter 41, entitled “Dower,” provides: “No person who sells and conveys lands by order of court, for the payment of debts, shall be deemed to have relinquished, by reason of such conveyance, any right of dower which he or she may have in such lands, unless his or her relinquishment is specified in the deed or conveyance.” It is not pretended that any statements were made by the widow, or any acts done by her, calculated to deceive or mislead plaintiff in error, and he must therefore be held to have purchased subject to all the legal rights of defendant in error.

The damages allowed were one-third of the rental value of the premises for one year, less taxes paid by plaintiff in error. We do not understand counsel for plaintiff in error to contend that defendant in error is not entitled to damages for the non-assignment of dower from the time the bill was filed, (which in law is a sufficient demand,) if she is lawfully entitled to dower, nor that the amount allowed by the court is not equitable and just. The error complained of is the allowance of damages, none being claimed in the bill. Correct practice would no doubt have required complainant below to have amended her bill so as to claim damages, and make it conform to the evidence, but inasmuch as both parties introduced evidence on the hearing as to the rental value, without objection, and plaintiff in error showed the taxes paid by him, all of which testimony was introduced on the question of damages, and was competent for no other purpose, we think that the parties voluntarily submitted that issue to the court. The objection that no claim for such damages was made in the bill, being urged for the first time in this court, comes too late.

Decree affirmed.


author: Per Curiam :

text:
    Anthony W. Woodward et al. v. Josiah D. Brooks et al.

      Filed at Ottawa

      April 3, 1889.

    1. Partnership-—death of one of the partners—retaining the old firm name.—effect upon estate of deceased partner. Where a partnership is dissolved by the death of a partner, the retention of the firm name by the survivor will create no liability on the estate of the deceased partner, and the survivor, by accepting a draft in the firm name, will make himself individually liable therefor.
    2. Contracts—by what law governed—as to their validity, etc.—and the remedy. As a general rule, the lex loci will govern in determining the validity of contracts, and in their interpretation and construction. It does not follow, however, that all contracts, valid when made, will be enforced by the courts of other States or jurisdictions. In respect of the time, mode and extent of the remedy, the lex.fori governs.
    3. Insolvent debtors—foreign assignment—how far enforcible here —as between for eign and domestic creditors. In the absence of domestic creditors, the assignee, under a valid foreign assignment of a debtor, may reduce to his possession the prop erty and collect the debts assigned to him, situated in this State ; and debtors here, owing the assignor and having no set-off, will be compelled to pay the assignee. But in case the foreign assignment, if made here, would be set aside as fraudulent, or as contrary to the policy of our laws, ora courts will not enforce it as against attaching creditors, whether foreign or domestic, although it may be valid in the State where made.
    4. Although a voluntary foreign assignment, valid in the State where made, is enforced in this State as a matter of comity, yet ora courts will not enforce it to the prejudice of ora own citizens, who may have demands against the assignor. It is contrary to the policy of our laws to allow the property of a non-resident debtor to be withdrawn from this State, and thus compel creditors here to seek redress in a jurisdiction; but for all other purposes, and between the citizens of the State where the assignment is made, if valid by the lex loci, it will be carried into effect by ora courts.
    Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      Mr. J. M. H. Burgett, for the appellants:
    The answer of the garnishees, the plea of Harlan, and the admitted facts, show funds of Brooks in the garnishee’s hands prior to the service of the writ. The burden was upon Harlan to show the facts discharging them from liability. Cushing’s Trustee Process, p. 97, sec. 233; Wright v. Ford, 5 N. H. 178; Giddings v. Coleman, 12 id. 153; North Star Co. v. Ladd, 32 Minn. 381; McCoy v. Williams, 5 Gilm. 584; Richards v. Stephenson, 99 Mass. 311; Grain v. Gould, 46 Ill. 293; Lane v. Felt, 7 Gray, 491; Maher v. Brown, 2 La. 492; Camp v. Hatter, 11 Ala. 151; Scott v. Stallsworth, 12 id. 25; Winslow v. Bracken, 57 id. 368; Parker v. Osborne, 71 Me. 69.
    The burden of proof was upon appellees to show that the fund had ceased to be liable to attachment for Brooks’ debt; that the possession accompanied and followed the title; that the fund had been removed from the power, control and disposition of Brooks. Young v. MeClure, 2 W. & S. (Pa.) 147; Milne v. Henry, 40 Pa. St. 352; Hildreth v. Fitts, 53 Vt. 684; Rice v. Courtis, 32 id. 450; Thomas v. Calihan, 5 Mart. (La.) 180; Timson v. Ramsbotiom, 2 Keen, 35; Ire re Tichener, 35 Beav. 317; Davenport v. Woodbridge, 8 Greenlf. 17.
    According to the best authorities, the sitres of a debt is, as to-attaching creditors, the residence of the debtor, and the tribunal of that residence may exercise jurisdiction over it in rem, and the law of such residence determines when such debt shall be subject to attachment. Roche v. Insurance Co. 2 Bradw. 360; Rhawn v. Pearce, 110 Ill. 350; Williams v. Ingersoll, 89 N. Y. 508; Dunlop v. Rogers, 47 N. H. 281; Milne v. Moreton, 6 Binn. 353; Varnum v. Camp, 1 Green, (13 N. J.) 326; Moore v. Bonnell, 31 N. J. 90; Johnson v. Parker, 4 Bush, 149; Martin v. Potter, 34 Vt. 87; Warner v. Jaffray, 96 N. Y. 248; Morgan v. Neville, 74 Pa. St. 52; Beer v. Hooper, 32 Miss. 246; Warren v. Copelin, 4 Metc. 594; Blanchard v. Russell, 13 Mass. 1; Hull v. Blake, id. 153; Bissell v. Briggs, 9 id. 462; Story on Conflict of Laws, (8th ed.) secs. 592 a, 549, 550.

      For the purposes of this suit, appellants are to be regarded as if citizens of this State. There can be no preference of one over the other, under the Federal constitution. Paul v. Virginia, 8 Wall. 168; Fosdick v. Schall, 99 U. S. 235; Green v. Van Buskirk, 5 Wall. 307; 7 id. 139; Bank v. Lacombe, 84 N. Y. 267; Warren v. Jaffray, 96 id. 248; Rhawn v. Pearce, 110 Ill. 350; Insurance Co. v. Bank, 68 id. 348; Mitchell v. Shook, 72 id. 492; Givens v. Bank, 85 id. 442; Ducat v. Chicago, 48 id. 172; Paine v. Lester, 44 Conn. 196; Morgan v. Neville, 74 Pa. St. 52; Martin v. Potter, 34 Vt. 87; Ward v. Morrison, 25 id. 593; De la Vega v. Vianna, 1 B. & A. 284; Story on Conflict of Laws, (8th ed.) note, pp. 546, 547.
    If appellants disregard their duties and obligations as citizens of Pennsylvania, it is for the courts of theylatter State to apply the corrective, and not for our courts to administer the law of such State in this suit. Embree v. Hanna, 5 Johns. 101; Bank v. Lacombe, 84 N. Y. 367; Insurance Co. v. Bank, 68 Ill. 348.
    Messrs. Hutchinson & Luff, for the appellees;
    The debt due from the garnishees to Brooks passed by the assignment, to Harlan, and was not liable to garnishment. The assignment, being valid by the laws of Pennsylvania, was sufficient to vest the debt in the assignee. Bentley v. Whittemore, 19 N. J. Eq. 462; Hoag v. Hunt, 21 N. H. 106; Smith v. Brown, 43 id. 44; Atwood v. Insurance Co. 14 Conn. 555; Van Buskirk v. Insurance Co. id. 583; Clark v. Peat Co. 35 id. 303; Speed v. May, 17 Pa. St. 91; Einer v. Best, 32 Mo. 240; Moore v. Bonnell, 31 N. J. L. 90; Whipple v. Thayer, 16 Pick. 25; Daniels v. Willard, id. 36; Burlock v. Taylor, id. 335.
    The situs of the debt was the domicile of the creditor or assignor. Wharton on Conflict of Laws, sec. 363; Goodwin v. Holbrook, 4 Wend. 379; Atwood v. Insurance Co. 14 Conn. 555.
    Appellants having notice of the assignment, it was not necessary, in order to vest the debt in the assignee, to notify the debtor. Notice pendente lite is sufficient. Story on Conflict of Laws, secs. 396-398; Wood v. Partridge, 11 Mass. 488; Foster v. Sinkler, 4 id. 450; Dix v. Cobb, id. 508; Muir v. Schenk, 3 Hill, 228; Van Buskirk v. Insurance Co. 14 Conn. 583; Bishop v. Holcomb, 10 id. 444.
    The assignment is prima facie valid, and the burden was on appellants to show it was fraudulent. Bump on Fraudulent Conveyances, 365; Whipple v. Pope, 33 Ill. 334; Townsend v. Stearns, 32 N. Y. 209.
    Insolvency of the assignor is not essential to the validity of an assignment.
    A solvent debtor may make a valid assignment for the benefit' of his creditors. Bump on Fraudulent Conveyances, 369; Ogden v. Peters, 21 N. Y. 23.
   Per Curiam :

Josiah D. Brooks and D. Leeds Miller, while partners, doing business in Philadelphia under the name and style of Brooks, Miller & Co., acquired title to a lot in Cook county, in this State, in the firm name, and taken in payment of a firm debt. On November 23,1883, the firm was dissolved by the death of Miller, but Brooks continued the business under the same firm name, and while so acting, on May 20, 1884, accepted a bill of exchange drawn on him in the said firm name, in favor of the plaintiffs, James S. Woodward & Sons. The retention and use of the firm name after Miller’s death created no liability on Miller’s estate, so that by. accepting the draft in the firm name, Brooks made himself individually liable to the plaintiffs therefor. On July 1,1884, Brooks entered into partnership with William G. Jenks, and they, under the same firm name, carried on business in Philadelphia until September 4, 1884, when they failed, and made a voluntary assignment for the benefit of creditors to Edward S. Harlan, assignee. The deed of assignment, after reciting that Brooks and Jenks were indebted to divers persons, grants, bargains, sells and conveys to said Harlan, “all and singular, the lands, tenements and real estate, and also all the goods, chattels, effects and property of every kind, real, personal and mixed, of the said Josiah D. Brooks and William Gr. Jenks,” except so much thereof as might be exempt from execution, in trust, to sell and dispose of the same, and to collect and receive all debts due to said Brooks and Jenks, or either of them, and from the proceeds to pay, first, the expenses incident to the trust; secondly, the “creditors of said Brooks and Jenks their respective just demands in full, if sufficient, otherwise, pro rata;” and lastly, any surplus “to said Brooks and Jenks.”

The principal question discussed by counsel relates to the effect a voluntary assignment of all his property by a foreign debtor, for the benefit of creditors, will have on his property having a situs in this State. At the time of this assignment the garnishees had in their hands something over $1200, one-half of which is claimed to belong to Josiah D. Brooks and the other half to the heirs of Miller, being the proceeds of the sale of the real estate before mentioned as belonging to the original firm of Brooks, Miller & Co. It is not shown that there had been an adjustment of the partnership assets and accounts between Brooks and the heirs of Miller, so that the extent of Brooks’ interest in this sum of money can not be told. After the assignment was made, acknowledged and recorded in conformity with the laws of Pennsylvania, where the debtors resided, the plaintiffs, residents of the same State', with notice of the assignment, brought attachment in the Superior Court of Cook county against Brooks, and service was had on said garnishees. The assignee, Harlan, interpleaded in that cause, claiming one-half of the money in the garnishees’ hands, under the assignment, while the plaintiffs claimed the same money in the hands of the garnishees by virtue of said attachment proceeding. The deed of assignment, apparently, is valid under the laws of the State of Pennsylvania. As the deed is there valid, it must be held valid here, it being the general rule that the lex loci will govern in determining the validity of contracts, and in their interpretation and construction. It does not, however, follow, that all contracts valid where made, will be enforced by courts of other States or jurisdictions. In respect of the time, mode and extent of the remedy, the lex fon governs. Mineral Point Railroad Co. v. Barron, 83 Ill. 365.

In the absence of claims of domestic creditors, the assignee under a valid foreign assignment may reduce to his possession the property, and collect the debts assigned to him within this State, and debtors here, owing the assignor, and having no set-off, will be compelled to pay the assignee. But if the foreign assignment, if made here, would be set aside as fraudulent, or as contrary to the policy of our laws, our courts will not enforce it as against attaching creditors, whether foreign or domestic, although it may be valid in the State where made. May v. Wannamacher, 111 Mass. 202; Zipcey v. Thompson, 1 Gray, 243; Fall River Iron Works Co. v. Croad, 15 Pick. 11; Kelley v. Craps, 45 N. Y. 46; Guillander v. Howell, 35 id. 657.

As a voluntary foreign assignment, valid in the State where made, is enforced in this State as a matter of comity, our courts will not enforce it to the prejudice of our citizens who may have demands against the assignor. It is contrary to the policy of our laws to allow the property or funds of a nonresident debtor to be withdrawn from this State before his creditors residing here have been paid, and thus compel them to seek redress in a foreign jurisdiction; so it was held in Heyer v. Alexander, 108 Ill. 385, that a voluntary assignment of a non-resident debtor’s property, valid under the laws of the State where made, will not be enforced here as against domestic attaching creditors. See Chaffee v. Fourth National Bank, 71 Me. 524; Kelley v. Crap, 45 N. Y. 46; Johnson v. Parker, 4 Bush, 149; Chicago, Milwaukee and St. Paul Railway Co. v. Keokuk Northern Line Packet Co. 108 Ill. 317; Life Association of North America v. Fassett, 102 id. 315.

In May v. First National Bank of Attleboro, 122 Ill. 551, we held that a voluntary assignment made in another State by a non-resident there, executed in conformity with our laws in respect to the conveyance of property, but inconsistent, in substantial respects, with our statute relating to assignments, will not be enforced here to the detriment of our citizens; but for all other purposes, and between citizens of the State where the assignment was made, if valid by the lex loci, it will be carried into effect by the courts of this State. That case is decisive of the one at bar. In the present case there are no domestic creditors to be affected. The attaching creditors are resident in the same State with the assignor, and where the assignment was made and will be executed. As before seen, the assignment is valid under the laws of Pennsylvania, and capable of being enforced there, and under the doctrine announced, the courts of this State will give it effect as against citizens of Pennsylvania. The heirs of Miller are not complaining here. It seems that they, as well as the assignee, assignors and attaching creditors, are all residents of the same State. The claim made by the assignee, as well as by the attaching creditors, is of Brooks’ interest in the money in the hands of the garnishees. If the Miller heirs have an equitable right to more than one-half of the money now in the hands of the garnishees, it is not perceived why that question may not be determined by an adjustment of the partnership accounts of the original firm in the courts of that State.

The rule here announced is not in conflict with Rhawn v. Pearce, 110 Ill. 350. In that case the assignment was not voluntary, but resulted by the laws of the State of Pennsylvania. A statutory assignment will not be enforced against attaching creditors of another State. May v. First National Bank of Attleboro, supra.

Finding no error in this record for which the judgment should be reversed, it is affirmed.

Judgmmt affirmed,

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


author: Mr. Justice Shope

text:
    Joseph Donnersberger v. Richard Prendergast et al.

      Filed at Springfield

      April 5, 1889.

    1. Township organization—changing boundaries of towns, etc.— validity of amendatory act of 1887. Section 12 of article 3 of the Township Organization law, as amended in June, 1887, so far as it relates to proceedings to disconnect part of the territory of one town and annex the same to a contiguous town, is a valid and constitutional law, but is void in so far as it attempts to change the boundaries of incorporated cities, towns and villages by limiting or extending their territorial boundaries and jurisdiction.
    2. SA3IE—effect of act of 1887, as a repeal of the prior law. The provisions of section 12 of article 3 of the Township Organization law, as amended in 1887, being a valid law so far as it relates to the same subject matter included in the act of 1874, necessarily operates as a repeal of the former law, and the law as amended takes its place.
    3. Same—former decisions. The cases of Dolese v. Pierce, 124 Ill. 140, and Village of Hyde Park v. City of Chicago, id. 156, held, that section 12 of article 3 of the Township act of 1874, as amended in 1887, in so far as it attempted to authorize a change in the boundaries of incorporated cities and villages, was in violation of section 13 of article 4 of the Constitution, and therefore void. But the question of the validity of that law in providing for a change in the boundaries of towns by taking territory from one and annexing the same to another, was not involved.
    4. Constitutional law—title of an act—constitutional-requirement. The first clause of section 13 of article 4 of the constitution, which provides “that no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” only requires that the subject of the act be expressed, in general terms, in the title. It is sufficient if the title is comprehensive enough to reasonably include as falling within the general subject, and as subordinate branches thereof, the several objects which the statute assumes to effect.
    5. Saaee—title of the act of 1887 amendatory of the Township Organization law of 1874. The act of 1887, entitled “An act to amend sections 2, 4, 6, 7,10,11 and 12 of article 3 of an act entitled “An act to revise the law in relation to township organization,’ approved and in force March 4,1874,” so far as it relates to the subject matter contained in the sections before amendment, and in respect of matters germane thereto, is a valid enactment, as the subject of it is expressed in its title; but in so far as section 12 of the act of 1887 provides for a change in the boundaries of incorporated cities and villages, it is void, as not being embraced in the title of the act.
    6. Under the title of the act of 1887, the legislature had the right to provide, as it did, for the change of township boundaries; but this right did not carry with it, as an incident, the power to change the boundaries of cities and villages, unless the change in the latter was necessary to effectuate a change in the former, or at least promote such object, which was not the case.
    7. Same—part of an act void-—validity of other portions. Where the constitutional and unconstitutional provisions of a statute are distinct and separable, the valid provisions may stand and be enforced as though the invalid one had not been introduced. Because a portion of a statute is unconstitutional, it does not follow that the court may declare its other provisions void, if they are separable, and the valid portions are capable of enforcement independently of such void provision, unless it shall appear that all of the provisions of the act so depend on each other, operating together for the same purpose, or are otherwise so connected together in meaning, that it can not be presumed the legislature would have passed the one without the other.
    8. Where an act is done under the provisions of a statute, some of which are void and others valid, it will be presumed to have been done without reference to the void provisions, unless there is something clearly indicating the contrary.
    This was a petition for a mandamus, filed in this court by-Joseph Donnersberger, against Richard Prendergast and others, composing the canvassing board of elections of the cities of Chicago and Lake View, the towns of Lake and Cicero, and villages of Hyde Park and Jefferson, to compel such board to canvass certain votes cast at the annual election held April 3,1888, etc. The material facts appear in the opinion of the court.
    Messrs. Crafts & Stevens, for the relator.
    Mr. S. S. Gregory, and Mr. Hempstead Washburn, for the respondents.
   Mr. Justice Shope

delivered the opinion of the Court:

This is a petition in this court by Joseph Donnersberger, against Richard Prendergast and others, who compose the board of canvassers of elections for the cities of Chicago and Lake View, the towns of Lake and Cicero, and the villages of Hyde Park and Jefferson, in Cook county, to compel such board to canvass the votes cast at the annual town election held April 3,1888, in that part of sections 35 and 36, in township 39 north, range 13, east of the third principal meridian, which lies south-east of the Illinois and Michigan canal, in the county of Cook, which votes were cast for certain persons who were candidates for the various offices of supervisor, assessor, collector and town clerk in the town of South Chicago. The canvassing board refused to canvass or count said votes, claiming that such part of said sections 35 and 36 was a part of the town of Cicero, and not a part of the town of South Chicago. There is no question that originally, and prior to November 17,1887, this territory composed a part of the town of Cicero. The petition herein sets forth the proceedings by which it is claimed that the territory in question was detached from the town of Cicero and annexed to the town of South Chicago. These proceedings are in all respects in conformity with section 12, of article 3, of the Township Organization law, as amended by act of the General Assembly approved June 15, 1887, in force July 1, 1887, so that if that section, as amended, is a valid law, under and by virtue of which portions of one town may be severed therefrom and annexed to another, this territory was legally taken from the town of Cicero and annexed to the town of South Chicago, and the prayer of petitioners should be granted. The case presented therefore raises the question whether section 12 of article 3, as amended in 1887, so far as it relates to proceedings where it is sought to disconnect part of the territory of one town and annex the same to a contiguous town, is void.

In the cases of Dolese et al. v. Pierce, 124 Ill. 140, and Village of Hyde Park v. City of Chicago, id. 156, it was held, that in so far as the act attempted to authorize a change in the boundaries of cities and incorporated villages, it was in violation of section 13, article 4, of the State constitution, and therefore void. It will be observed, by reference to the cases cited, that there was involved therein only the provisions of the act relating to the change of the boundaries of incorporated cities or villages, within which the territory proposed to be united was included; and in so far as the act under consideration attempts to deal with cities and villages by limiting or extending their territorial boundaries and jurisdiction, it was held unconstitutional and void.

Section 13, of article 4, of the constitution, provides: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

The act as amended, and under which the proceedings were had to disconnect the territory under consideration from one town and connect it with the other, is entitled, “An act to amend sections 2, 4, 6, 7, 10, 11 and 12, of article 3 of an act entitled ‘An act to revise the law in relation to township organization,’ approved and in force March 4,1874.” A reference to the act of 1874 will show that the sections of that law referred to, related exclusively to the division of towns, “re-adjusting the boundary lines of adjacent towns, by detaching territory from one and adding it .to another, the uniting of two contiguous towns into one, and the manner of accomplishing these objects, including the adjustment of the property rights and liabilities of the towns affected.” It follows, therefore, that so far as the act relates to the subject matter contained in the sections before amendment, and in respect of matters germane thereto, the subject of the act is expressed in its title. The first clause in the provision of the constitution quoted, only requires the subject of the act to- be expressed in general terms in the title. (Johnson v. People, 88 Ill. 431; Jonesboro City v. Cairo, etc., Railroad Co. 110 U. S. 192.) It is sufficient if the title is comprehensive enough to reasonably include, as falling within the general subject, and as subordinate branches thereof, the several objects which the statute assumes to affect. Potwin v. Johnson, 108 Ill. 70; People v. Hazehoood, 106 id. 319.

Section 12 as amended gives the county board full power to unite two or more contiguous towns into one, and “to disconnect territory from one of such towns and annex the same to another,” and prescribing the manner in which such change shall be effected and the steps necessary to be pursued to accomplish that purpose, with other matters pertaining strictly to matters arising properly under the township organization system, and also provides, “that when said town to which such territory is annexed is wholly within the limits of an incorporated city, the limits of such city shall thereafter be extended to include the territory annexed to such town.” It was the attempt to give effect to this latter clause or proviso that was involved in the cases of Dolese v. Pierce and Hyde Park v. Chicago, before referred to. As we have seen, those cases are decisive of the invalidity of that provision. In the first of the cases referred to, we said: “Under the title of the act of 1887, the legislature had the right to provide, as it did, for the change of township boundaries; but this right did not carry with it, as an incident, the power to change the boundaries of cities and villages, unless the change in the latter was necessary to effectuate a change in the former, or at least promote such object, and nothing of this kind is pretended.” The question of the legality of the change of the boundaries of two towns, by taking territory from the one and annexing it to the other, was not involved in those cases. The provision relating to the extension of the limits of the city we then thought, and are still of the opinion, was entirely foreign to anything relating to the system of township organization as established by law. It was held not to be germane to the subject expressed in the title of the act, and therefore in conflict with the first clause of the constitutional provision above quoted.

As we have seen, the constitution provides that where a subject is embraced in an act not expressed in its title, “the act shall be void only as to so much thereof as shall not be so expressed.” Therefore, although a portion of the statute under consideration is unconstitutional, it does not follow that the court is authorized to declare its other provisions void, if they are separable from the void provisions and capable of enforcement independently of such void provisions, unless it shall appear that all of .the provisions of the act are so dependent on each other, operating together for the same purpose, or are otherwise so connected together in meaning, that it can not be presumed that the legislature would have passed the one without the other provision. When the constitutional and unconstitutional provisions are distinct and separable, the valid provisions may stand as though the invalid provision had not been introduced. Cooley’s Const. Lim. 177, 178, and notes. See, also, Knox County v. Davis, 63 Ill. 405; Myers v. People, 67 id. 503; Binz v. Weber, 81 id. 288; Town of Middleport v. Etna Life Ins. Co. 82 id. 562; Hinze v. People, 92 id. 406; Cornell v. People, 107 id. 372; People v. Hazelwood, supra. The provision for changing the boundaries of towns under township organization in this section is distinct and separable from the annexation of one incorporated city or village to another, or extending the boundaries of an incorporated city or village so as to include the territory annexed within the city or village limit. We are of opinion, therefore, that the provision of section 12, article 3, of the act of 1887, so far as it relates to the uniting of towns, or detaching territory from one town and attaching it to another, being within the scope of the subject expressed in the title of the act, was valid legislation, and may be carried into effect, notwithstanding the void provision relating to cities and villages, referred to.

In the case of Hyde Park v. City of Chicago, the facts and circumstances there shown raised the presumption that the vote was had with reference to the provision of the statute there held to be unconstitutional. It was there shown, that the petitioners in the petition presented to the county board, provided for in the 12th section of the act, describe themselves as residents of the “town or village of Hyde Park.” They pray that the specified territory be disconnected “from the town or village of Hyde Park, and be annexed,” etc. So the proceedings had by the board of commissioners designate the petition as being for disconnecting a portion of the “town or village of Hyde Park,” and annexing it to the town of South Chicago, and so the clerk was directed to submit to the voters of the “town or village of Hyde Park” the question of annexation to South Chicago, of a part of the “town or village of Hyde Park" And it was there said: “When the voters are thus called on to vote for the annexation of a part of a town or part of a village, the question being submitted in an alternative form, and they vote for annexation and against annexation, how can the canvassing board say they voted to annex the town, rather than the village ?”

It is apparent that the conclusion there reached in respect of the annexation of the town of Hyde Park to the town of South Chicago was based upon the peculiar circumstances of that case, with which conclusion we are entirely content. In this case no such question as was there presented arises. The question here submitted to the voters of the town interested was simply that of annexation of the portion of the town of Cicero indicated, to the town of South Chicago. It will not be presumed that the affirmative vote for the change in the boundaries of the two towns was given upon the assumption that it would have an effect different from that contemplated by ‘the question submitted. When an act is done under the provisions of a statute, some of which are void and others valid, it will be presumed to have been done without reference to the void or unconstitutional provisions, unless there is something clearly indicating to the contrary. The courts will not only uphold a statute so far as it is possible to be done without violence to the constitution, but will also uphold whatever has been done under or in pursuance of such statute, so far as the acts done appeared to be within the provisions of the valid portions of the statute. See Penniman’s case, 103 U. S. 714; Hills v. Exchange Bank, 105 id. 319; Unity v. Burrage, 103 id. 447; Florida Central Railroad Co. v. Schutte, id. 118; Edwards v. Pope, 3 Seam. 465; People ex rel. v. Cooper et al. 83 Ill. 585; Hinze v. People ex rel. 92 id. 406.

We are of opinion that the act under consideration, providing for the disconnection of territory from one town and annexing it to another, is valid, and the proceedings in this case having been in conformity with its provisions, had the effect to disconnect all that part of sections 35 and 36 lying south-east of the Illinois and Michigan Canal, from the town of Cicero, and of annexing it to the town of South Chicago.

The views here expressed render it unnecessary for us to' consider whether the proceedings can be upheld as being in conformity with the act of 1874. The provisions of section 12 being valid, so far as they relate to the same subject matter included in the act of 1874, necessarily operate as a repeal of the former act.

It therefore follows, that the annexation of the territory in question to the town of South Chicago was made in all respects in conformity with law, and must be upheld, and a peremptory writ of mandamus will issue.

Mandamus granted.


author: Mr. Justice Scholeield

text:
    The Germania Insurance Company v. Charles P. Swigert, Auditor.

      Filed at Springfield

      April 5, 1889.

    1. Insurance—foreign companies—reciprocal burdens—when section 29 of the Inswra/nce law of 1874 becomes operative. The provisions of section 29 of the Insurance law of 1874, requiring insurance companies of other States having an agency in this State, to make the same deposits and to pay to the Auditor the same taxes, fines, penalties and license fees as is or may be required by the laws of such other State of such companies organized under the laws of this State to be paid, apply and become operative from the time of the enactment of such laws by such other States requiring companies of this State to make deposits or pay fines, taxes, penalties or license fees, whether any company of this State shall have established agencies there, or not.
    2. The time when our law requires a foreign insurance company doing business in this State to pay the same license fees, etc., required by the laws of the foreign State of companies of this State doing business therein, is whenever the existing or future law of such other State shall require companies of this State to pay license fees, etc., for the privilege of doing an insurance business therein.
    3. Same—Insurance law of the State of Louisiana—m respect to foreign agencies. In the statute of the State of Louisiana, which requires insurance companies organized under the laws of other States, and having agencies in that State, to pay an annual license of $400, the words, “ijnd having agencies in this State,” are plainly but a part of the description of the subject matter upon which the law is to operate, and are not a statement of the time when the law is to exist or be in force.
    4. Same—foreign agency of home company—report to Auditor. There Is no statute in this State requiring insurance companies organized under our laws to make a report to the Auditor whenever they establish agencies in foreign States, of that fact.
    5. Statute—law as a rule of conduct—to antecede the facts which may call it into action. The existence of a law, and the existence of a present subject matter upon which it will take effect, are distinct things, the former depending upon the will of the legislature, and the latter upon the conduct of the people in the respect contemplated by the law after it is in force as a rule of action. The declaration of the rule of conduct must antecede the facts which call it into action.

      6. Appeal—when State is interested. In a suit by a foreign insurance company against the Auditor of Public Accounts, to. recover back a license fee paid the latter under protest by the former, an appeal lies directly from the judgment of the trial court to this court, for the reason that the State is interested in the suit.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    This is assumpsit, by appellant, against appellee, for the recovery of $400, the amount of a license or tax collected by the latter of the former, under protest of the former. The following facts are agreed to:
    “It is hereby stipulated, that for the purpose of settling the controversy now existing between the plaintiff and the defendant in the above entitled suit, in regard to the defendant’s right or authority to levy, assess and enforce a reciprocal license tax or license fee against the plaintiff company, under section 29, chapter 73, of the Revised Statutes of the State of Illinois, the following statement of facts embraces the ultimate facts involved in said controversy, as the same can be established by competent proof, viz.:
    “That the said Germania Insurance Company is a corporation organized under the laws of the State of Louisiana, and having its principal place of business at New Orleans, in said State; that on or about the 12th day of February, 1887, and for a long time prior thereto, the said plaintiff had fully complied with the Insurance law of the State of Illinois, except so far as relates to the license fee now in controversy, and was at said date doing business in said State in pursuance of said law, and that at said time Davis & Requa, of the city of Chicago, were the agents of said company; that on the day and year aforesaid, chapter 73 of the Revised Statutes of the State of Illinois was then in full force and effect, and among the provisions thereof were the following, viz., section 27, section 29, section 30; that in the year 1886 the General Assembly of the State of Louisiana amended and added to the insurance law then existing in said State, further enactments and additions, among which was section 7 of article 101 of the law of 1886, which said section reads as follows, viz.:
    “ ‘That each and every insurance company (society), association, corporation or other organization or firm or individual, doing and conducting an insurance business of any kind,—• life, fire, marine, river, accident, or other,—in this State, whether such company (society), association, corporation or other organization or firm or individual is located or domiciled here, or operating here through a branch department, resident board, local office, firm, company, corporation or agency, of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented, and said licenses shall be based on the gross annual amount of premiums on all risks located within this State, and upon risks located in other States or foreign countries, upon which no license has been paid therein, as follows, to-wit: ’
    “That after providing in a number of subdivisions for the license aforesaid, based upon the gross annual amount of premiums, as provided in said section 7, subdivision 12 reads as follows, viz.:
    “ ‘When said premiums are $20,000, and less than $30,-000, the license shall be $400 : Provided, that no corporation not incorporated under the laws of the State, nor any foreign society, firm or partnership, shall do business in this State except through an agent duly authorized and accredited for the purposes of said business, and for all purposes connected with licenses and taxation and service of process, said agent to be appointed by authentic act, and a certified copy of the act to be deposited in the office of the Secretary of State. Any person or firm who shall fill up or sign a policy or certificate of insurance on open marine or fire insurance policy, or otherwise issue, by a corporation or association or persons not located or represented in this State by a legally authorized agent, shall be considered an agent of such corporation or person or association, and shall be liable for all licenses, taxes and penalties enforced by the provisions of this act upon such person, corporation and association, as if represented by a legally appointed agent: Provided, that nothing herein contained shall apply to mutual aid societies which pay mutual insurance policies by assessments upon members, whether the same be or be not domiciled in this State.’
    “That on the day and year aforesaid, and at the time of the passage of the said law by the said General Assembly of the said State of Louisiana aforesaid, there was not, nor had there been for a long time prior thereto, or at any time since, any insurance company organized under the laws of the State of Illinois, or any Illinois insurance company, doing business in the said State of Louisiana, or any point therein; nor was there at such time, or at the time of the said passage of the said act, any Illinois insurance company having agencies in said State for the purpose of transacting an insurance business therein, or for any other purpose whatever; that the gross amount of premiums on risks taken by the agents of the said insurance company at said Chicago, and located in the said 'State of Illinois in which the said agents were authorized to, and did from time to time, issue policies during the year 1886, upon which no license had been paid therein, amounted to the sum of $20,000, and was less than the sum of $30,000; that,"acting under said section 29, of chapter 73, of the Revised Statutes aforesaid, on the said 12th day of February, 1887, Charles P. Swigert, Auditor of Public Accounts of the said State of Illinois, levied, assessed and charged upon the said insurance company a license fee to the amount of four hundred dollars ($400), an amount equivalent and equal to the sum so as aforesaid provided for in subdivision 12 of section 7 of the said act of the legislature of the State of Louisiana aforesaid, for the year 1887; that the said Auditor, further purporting to act in pursuance of said section 29, of chapter 73, of the Revised Statutes of said State of Illinois, ■after the levy and charge so made by him in the manner and for the purpose aforesaid, notified said Davis & Eequa, the agents of the said insurance company at Chicago, of said levy, assessment and charge, and thereupon requested payment thereof; that the said Davis & Eequa, after communicating the fact of said levy to the officers of the said insurance company at New Orleans, in the said State of Louisiana, by direction of said company refused to pay the same, whereupon the said Auditor, acting in pursuance of the provisions of said chapter 73 of the Eevised Statutes of said State of Illinois, threatened to withhold from or to refuse to issue to said company the license or certificate for the coming year provided for in and required by said act, and which had been previously issued to the said insurance company in former years, to enable said company to carry on the business of insurance in said State of Illinois in conformity with the requirements of the laws thereof, whereupon, and on the 23d day of July, 1887, the Said insurance company, through its said agents, paid to the Auditor of said State, under protest, the said sum of $400 so levied and assessed in the manner and for the purposes aforesaid; that the said sum so paid to the said Auditor as aforesaid, was paid to and received by him upon the express understanding that the same was paid under protest, and that it should be so received, held and treated by him until such time as the question of the validity of said levy and charge could be tested in the courts of the said State of Illinois; that the said Auditor of Public Accounts, under said section 27 of ■said chapter 73, was authorized to charge and collect as fees for filing the annual statement, the agent’s certificate, and for advertising said statement for the year 1887, the sum -of $92, but no such fees were levied and charged under said section, nor was there any attempt to levy and make such charge or collect the same by the Auditor, nor were there any other fees levied and charged by the said Auditor of Public Accounts against the said plaintiff for the said year, save and except the said sum of $400 so levied and charged and collected in the maimer and for the purpose aforesaid, under said section 29 of said chapter 73; that under the general revenue laws of the State of Louisiana, a foreign insurance-company, like any other citizen or inhabitant of said State-having and owning real and personal property therein, is taxed upon the fair market value of said real estate and personal property at the rate of six mills on the dollar, but there were-no fees in said State, imposed by the insurance laws thereof, and in force therein at the time of the levy and charge of the-said license fee of $400, corresponding to those imposed by said section 27, nor is there any such tax imposed by the revenue laws of said State; that there is no statute in force in the State of Louisiana, nor was there any at the time of the-levy and charge and payment of the said sum of $400, corresponding to said section 29, of chapter 73, of the Revised Statutes of the said State of Illinois, nor was or is there in force in said State any statute whatever upon the subject of reciprocal tax; that the foregoing facts are to have the same weight and effect with the court, but no greater, than they would have if offered and admitted in evidence on the trial of said cause-in the usual and regular way; and in stipulating the facts in the case, the defendant is not to be considered as waiving any rights he would have on the trial of said cause before a court and jury in the way provided by law, and on the trial thereof’ may except and preserve exceptions to any of the facts contained in said stipulation, in the same manner and to the same extent as might be done in the trial of said cause, and where-the evidence was offered and received by the court on the trial thereof in the usual and ordinary manner; that either party to said suit may refer to any section or sections of the insurance laws of the said State of Louisiana not herein set forth, and to any section or parts of the revenue laws of said State which would be admissible in evidence upon trial in the usual way, and which may be deemed necessary and material to a full presentation of the questions of law involved in said suit, and to the same extent as though said laws had been incorporated in said stipulation, or set out in full in the declaration in said suit.”
    Judgment was rendered for the defendant, and the plaintiff brings the case here by appeal.
    Mr. D. J. Schuyler, for the appellant:
    The assessment and charge made on the plaintiff by the Auditor was invalid, and the plaintiff is entitled to judgment for the amount paid, as there was no Illinois company doing business in Louisiana. Goldsmith v. Insurance Co. 62 Ga. 379.
    It is a familiar canon of statutory construction, that the legislature must have intended what they have actually expressed, unless some manifest incongruity would result from doing so, pr unless the context clearly shows that such a construction would not be the right one. Potter’s Dwarris, 206; Jackson v. Lewis, 17 Johns. 475; People v. Railroad Co. 13 N. Y. 77; Martin v. Swift, 120 Ill. 488.
    If the expression, “and having agencies in such other States,” is to be construed according to the ordinary and popular sense of the words, the Auditor could not collect the amount fixed by the Louisiana law. Stuart v. Hamilton, 66 Ill. 253.
    That the judgment should be reversed, see Cooley on Taxation, 268, 269; State Tonnage Tax cases, 12 Wall. 204; Gage v. Bailey, 102 Ill. 11; Bradford v. Chicago, 25 id. 411; Erskine v. Van Andale, 15 Wall. 75; LaSalle County v. Simmons, 5 Gilm. 513; Pemberton v. Williams, 87 Ill. 15.
    Mr. George Hunt, Attorney General, for the appellee:
    The statute makes it the duty of all insurance companies doing business in this State to file certain statements with the Auditor, to pay certain fees, and procure from the Auditor a license. Section 27, chapter 73, of the Revised Statutes, fixes certain fees to be paid by such companies, and section 29 requires that foreign insurance companies shall pay the same license fees, etc., as the laws of their States require of companies of this State doing business in such other States. This latter section has been decided to be a valid law. Insurance Co. v. Swigert, 104 Ill. 653.
    The language of section 29 does not make the collection of what is called the “reciprocal fee,” depend, in any degree, upon whether or not a company from this State is in fact doing business in such other State, or in fact has agencies there. The condition upon which the increased fee becomes payable and section 29 becomes operative, is, “whenever the existing or future laws of any State” require a greater payment from companies of this State having agencies in such State than is required by the other laws of this State from companies of such State, then a like amount shall be required in this State. Goldsmith v. Insurance Co. 62 Ga. 383.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This appeal is prosecuted directly to this court, instead of to the Appellate Court, by virtue of section 2 of the act of June 3, 1879, amending section 88 of the Practice act, (Laws of 1879, p. 222,) because the State is interested in the result.

Section 29, of chapter 73, of the Eevised Statutes of 1S74, is as follows:

“Whenever'the existing or future laws of any State of the United States, or any other kingdom or country, shall require of insurance companies incorporated by or organized under the laws of this State, and having agencies in such other State, kingdom or country, any deposit or securities in such State, kingdom or country, for the protection of policy holders or otherwise, of any payment for taxes, fines, penalties, certificates of authority, license fees or otherwise, greater than the amount required for such purposes from similar companies of other States by the then existing laws of this State, then, and in every such case, all companies of such States establishing, or having heretofore established, an agency or agencies in the State, shall be and are hereby required to make the same deposit, for a like purpose, with the Auditor of this State, and to pay to the Auditor, for taxes, fines, penalties, certificates of authority, license fees and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such State upon the companies of this State and the agents thereof: Provided, that the payment required of such foreign companies shall in no case be less than required by this act.”

The constitutionality of this section was sustained in Home Ins. Co. v. Swigert, 104 Ill. 666, and the only question upon it now presented for our determination is, whether it becomes operative at the time of the enactment of the law, with the designated requirement, by the foreign State, or not until a company acting under the laws of this State shall have agencies for the purpose of engaging in business in such foreign State. The court below held the former, and counsel for appellant contend for the latter. Appellant’s counsel contends, that the words “and having” are qualified by the word “whenever,” so that the sentence should read, “whenever the existing or future laws of any State * * * shall require, * * * and when such companies shall have agencies in such other State,” etc. But this is, palpably, contrary to the natural meaning of the language as employed in the section. The time when is, plainly, “whenever the existing or future laws of any State * * * shall require,” etc. Does a law any the less require á thing to be done because there is no present subject matter upon which to operate? The requirement of the law is but the declaration of the rule to be observed, and it must antecede the facts which call it into action. The existence of the law, and the existence of a present subject matter upon which it will take effect, are entirely distinct things. The former depends upon the will of the legislature, while the latter depends upon the conduct of the people in the respect contemplated by the law, after the law is in force as a rule of action. Thus, the law prohibiting sales of spirituous liquors without a license, is none the less the law because nobody may want to sell liquors. • It does not actively operate upon any particular person until some one wants to sell liquors; but whenever that occurs, it is actively operative upon that person, although it may be years after the law first went into force as a rule of action. So, here, the existing law in Louisiana requires of insurance companies organized under the laws of other States, (and therefore of this State,) and having agencies in that State, to pay an annual license of $400, etc. The words, “and having agencies in this State,” as they occur in that law, are plainly but a part of the description of the subject matter upon which the law is to operate, and are not a statement of the time when the law is to exist or be in force. The existing law makes the requirement,—declares the rule,—and it remains in force just as well without as with a present subject matter upon which to actively operate. And since it is the existence of the law, and not the application of the law to its subject matter, that determines when section 29 shall be obligatory, it must follow that it is unimportant whether insurance companies organized under the laws of this State have agencies in the State of Louisiana or not.

The manifest purpose of this enactment is to restrict insurance companies of other States in doing business in this State, by precisely the same restrictions with which insurance companies of this State are restricted in doing business in such other States, respectively, and so, necessarily, our law must read, with respect to insurance companies of Louisiana doing business in this State, in the exact language and meaning of the law of Louisiana with respect to insurance companies of other States doing business in that State. But the contention of counsel for appellant leads to the absurd (as it seems to us) result, that because the State of Louisiana has' imposed upon all foreign insurance companies such severe restrictions as to •practically prohibit Illinois insurance companies from doing business in that State, no restriction is imposed by the laws of this State upon insurance companies of Louisiana doing business in this State, other than such as are imposed upon domestic companies, since it is evident that the sole reason ■why Illinois insurance companies have no agents for the transaction of business in the State of Louisiana, may be, and probably is, because of the severity of the restrictions imposed by the laws of that State upon insurance companies of other States doing business in that State. Plainly, it is intended "that as the law of that State operates upon us, so the law of "this State must operate upon them, and the same payment which our companies must make as a condition to doing business there, their companies must make as a condition to doing business here.

Moreover, it may be added, as a circumstance strongly corroborative that this was the legislative intent, that no provision is anywhere to be found, in any statute, whereby the Auditor can ascertain whether insurance companies organized under the laws of this State have agencies in the State of Louisiana, or in any other foreign State. The Auditor can not be expected to travel abroad in quest of such information, .and he can employ no messenger to do so unless expressly authorized by statute, of the existence of which there is no pretense. No statute authorizes him to act upon reports, in this respect, made by officers of a foreign State, even if reports •are there made, of which there is no evidence; and no statute requires insurance companies organized under the laws of this State to make report to the Auditor whenever they establish agencies in foreign States, of that fact. So, in a legal point of view, it is impossible for the Auditor to obtain evidence of the facts upon which, alone, as appellant’s counsel «contends, this section becomes operative,.and hence, if appellant’s contention be maintained, the legislature has simply -enacted a section without providing legal means for its enforcement. Such a conclusion is never admissible, unless by no reasonable construction of the language employed is it possible to escape it. The language of the court in Home Ins. Co. v. Swigert, 104 Ill. 653, is to be read with reference to the questions then before the court. The question of whether insurance-companies of this State must have agents doing business in the State of Louisiana, before the law of this State, supra, can operate upon insurance companies of Louisiana doing business-in this State, was not before the court, and no rule in that-respect was intended to be there announced.

Agreeing with the court below in its construction of the-section, the judgment must be affirmed.

Judgment affirmed.