text:
    The People ex rel. Charles P. Swigert v. The Golden Rule et al.

      Filed at Ottawa May 15, 1885.

    1. Quo WARRANTO—by Auditor against insurance company—nature of the proceeding, as a private or public prosecution. The Auditor of Public Accounts is given, by statute, supervision over life as well as other insurance companies; and when companies assume to insure without having sufficient legal authority, it is within the line of his duty to cause them to be prosecuted, and to be deprived of their assumed franchises. An information in the nature of a quo wm'ranto, filed by the Attorney General on the relation of the Auditor, against a private corporation assuming to insure, is not a prii vate but a public prosecution. In this regard, such a case is not analogous to that of The People ex rel. v. North Chicago Ry. Co. 88 Ill. 538. There the application was by a private party to file an information, while here it is by the Attorney General, at the instance of the Auditor of Public Accounts, in the performance of his duties as a public officer.
    2. Same—leave to file information without a rule nisi. Under the present statute the court, or judge thereof in vacation, may act upon the petition of the relator for leave to file an information in the nature of a quo warranto, without first laying a rule upon the respondents to show cause against granting the leave, and, if satisfied that there are probable grounds for the filing of the petition, allow it to be filed.
    3. Same—proceedings after leave granted—power of the court to vacate the order granting leave—upon what groimds. Where a circuit court, in term time, allows an information in the nature of a quo warranto to be filed, and orders a summons to be issued, the discretionary powers of the court are exhausted, and the issues of fact or of law presented by the pleadings must then be tried. If the information is insufficient, the respondents should demur, otherwise they should, by plea, set up any defence they may have.
    4. If leave to file the information is granted, and an order made by the court for the issue of summons, upon a misapprehension of some fact material to be known before making such order, but for the supposed existence of which it would not have been made, it is competent for the court to vacate the order at any time during the term at which it is made.
    5. Where the court has, on a proper affidavit showing probable cause, granted leave for the filing of an information by the Attorney General, it will be error to vacate the order granting leave for reasons or grounds which should be interposed as a defence on the final hearing.

      6. Life insueance—when in the nature of a wager. It would seem that a policy or certificate for the payment of a premium to one who may hold a number next to that held by the one who dies, and solely because he does die, makes the transaction in the nature of a wager upon the life of one in whom the party thus benefited has no interest, and is therefore illegal.
    7. PoWEBS OF judge in vacation. A judge of a circuit court in vacation can make orders only to the extent the statute authorizes him to do. The statute is the measure of his authority in vacation. He can enter no general orders, and can render no judgment in vacation, merely by virtue of his general powers as judge.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    On the 6th of January, 1885, the Attorney General entered a motion in the Warren circuit court for leave to file an information in the nature of a quo warranto, in the name of the People of the State of Illinois, on the relation of the Auditor of Public Accounts, -against the “Golden Rule, ” 0. S. Barnum, T. S. Stamps, J. H. Wallace, John Troutman and W. B. Young, and in support of the motion he filed the following affidavit:
    “Charles P. Swigert, being duly sworn, upon oath deposes and says that he is Auditor of Public Accounts of the State of Illinois, and has been for one year last past; that as he .is informed and believes, 0. S. Barnum and others filed in the office of the Secretary of State of the State of Illinois, on the 21st day of February, 1884, a certificate signed and acknowledged, and proposing to organize a body corporate, not for pecuniary profit, under an act concerning corporations, in force July 1, 1872, and that on said February 21, 1884, said Secretary of State issued his certificate, under his hand and the great seal of State, declaring the said corporation duly organized under the name ‘The Golden Rule.’ 0. S. Barnum, J. H. Wallace, T. S. Stamps, John Troutman and W. B. Young were elected as directors to manage and control the business of its corporate existence, and they accepted said office and entered upon the performance of its duties. Affiant is informed, and understands from information furnished him by the officers of said association, that the real and actual business of said corporation, as carried on by and under the direction of said directors since its organization, is, and has been, to solicit and receive applications for membership in said corporation, and to grant to such persons as were and are accepted as members, a certificate, which, together with the rules and regulations of said corporation, bound it, upon the death of a member, to serve notice of such death upon the surviving members thereof, and to make collections of money, or receive contributions from the surviving members, and to pay out seventy-five per cent of the money so received, not exceeding $1500, to a person named therefor in the deceased member’s application, and twenty-five per cent thereof to the two persons who hold or held valid existing certificates’of, membership in said corporation, number next above and below the number of the certificate held by the deceased member.
    “As further and more fully illustrating the manner of doing business, and the kind of business done by said corporation, affiant attaches hereto, and refers to, a blank form of application for membership, and marked ‘Exhibit A.’ Also blank form of certificate, marked ‘Exhibit B.’ Also book of consti- ■ tution and by-laws of said corporation, marked ‘Exhibit C.’ All of which papers and exhibits were received by me from the officers of said corporation, as illustrative of the business done by it. [Signed] Charles P. Swigert. ”
    A sufficient jurat is attached. It is not deemed necessary to set out the exhibits.
    The court allowed the motion, and thereupon the Attorney General filed the following information, omitting the caption:
    “James McCartney, Attorney General of the State of Illinois, who sues for the People of the State of Illinois, comes now, etc., and at the relation of Charles P. Swigert, Auditor, etc., gives the court to understand (setting forth in detail the organization of the ‘Golden Buie,’ as shown by the preceding certificate, its objects, the election of officers as therein shown, and that said corporation and its said officers entered upon the exercise of their respective powers,) and that February 21, 1884, said corporation, under the direction of said directors, unlawfully solicited and received applications for membership therein; that by the rules of said corporation each member was required to pay five dollars for his admission to membership, also a semi-annual fee of fifty cents, and to make payments upon the death of a member, from which is established a fund denominated by said corporation a beneficiary fund. Said corporation received from its members applications for an interest in said fund. Such applicants were required to accompany said application with their agreement that in case they should be admitted to participation in such beneficiary fund, if they should cease to be a member of the order in accordance with the rules, or fail to pay all dues promptly when notified by the secretary, said applicant should forfeit all rights to participate in said beneficiary fund. Applicant was also required to state the name of a person to whom he desired benefits paid upon his death. Applicant was required to state his age, race, place of birth, occupation, habits and physical condition, age, or cause of death, of his parents; that to members accepted, the corporation gave a certificate in writing, under the corporate seal, signed by the president and secretary, which certificates were numbered according to their order of issue, binding itself to pay to the person named therefor in the application and in the certificate, upon the death of the member, seventy-five per centum of the money received by said corporation from the surviving members in response to notices of such death, issued by the secretary, and not exceeding $1500, and to pay to persons holding certificates numbered next above and next below that of the deceased member, twenty-five per cent of said amount, and not exceeding $500, all of which powers, etc., said corporation and said directors have usurped, etc.

      “Second count—After setting forth the incorporation of the ‘Golden Buie,’ as before, and the selection of directors to manage the business, as before shown, charges that said corporation, by and through its directors, officers, etc., wrongfully, and without authority of law, did engage in and transact a life insurance business, and for a valuable consideration did obligate said corporation to pay, upon the death, and proper proof thereof, of a member of said corporation, a sum of money to other persons not the widow, orphans, heirs' or devisees of such deceased member, which powers, franchises, etc., said corporation and its officers, during, etc., have wrongfully usurped, etc.
    “ Third count—Sets forth the organization of the corporation and selection of officers. Said corporation, under the direction of said directors, unlawfully solicited and received applications for membership and participation in the benefits arising therefrom, and to such as were satisfactory said body corporate and directors issued a certificate, under the corporate seal and the hand of the president and secretary, in and by which certificate, in connection with the application therefor and the rules of said corporation, said corporation unlawfully bound itself, for a valuable consideration, upon the death of a member thereof, to notify the surviving members, and to collect and receive such payments or contributions of money as might be made by the surviving members, and to pay to a person named therefor in the deceased member’s certificate, seventy-five per cent of the money so collected, not exceeding $1500, and to pay the remainder, not exceeding $500, equally to the two persons holding certificates next above and next below, in numerical order, the certificate of the deceased members,—all of which powers and franchises said defendants have unlawfully usurped, etc., to the damage and prejudice of the People of the State of Illinois, and against the peace and dignity of the same; prays the consideration of the court, and process against the ‘Golden Bule,’ O. S. Barnum, T. S. Stamps, J. H. Wallace, John Troutman and W.. B. Young, to make them answer to the said People by what warrant they claim to hold and exercise the franchises aforesaid.
    James McCabtnev, Attorney General.”

    Summons was thereupon issued to the respondents by order of the court, returnable to the same term of court, on the 13th of January, the then present month. The summons was returned served upon all the respondents, the next day after it was issued,—i. e., the 7th of January. On the return day of the summons the respondents appeared in open court, by their attorneys, and filed their motion to vacate the order granting leave to file the information, and also to quash the writ and dismiss the suit, and in support of the motion they filed an affidavit. The Attorney General objected that the court should entertain jurisdiction of the motion, but the court overruled the motion, to which ruling exception was taken. The following reasons were assigned in support of the motion:
    First—Because no notice was given of the application for leave to file the information.
    Second—A rule nisi was not entered, and served on the defendants, before leave given to file information.
    Third—The petition, and affidavit in its support, and the exhibits made a part thereof, show upon their face the right of the defendants to exercise the corporate powers charged to have been usurped.
    Fourth—The petition, affidavit and exhibits filed by the plaintiff show no cause of action.
    Fifth—There is no probable ground for the proceeding in this case.
    Sixth—The leave to file the information was improperly granted.

      Seventh—The information does not set forth any cause of action mentioned in the statutes, against the defendants, on which an information in the nature of a quo warranto may be prosecuted.
    Eighth—The defendant order of the “Golden Buie” is a secret society, having a supreme and subordinate council, and is therefore exempted by law from the control of the Auditor of Public Accounts.
    Ninth—The order of the “Golden Buie” makes no assessments upon its members for its beneficiary fund, and therefore it is a purely social, and not a benevolent, organization, making assessments upon its members, and in no manner is an insurance company over which the Auditor has control.
    Tenth—The “Golden Buie” is an organization of a purely social and benevolent character, where no commissions are paid, and no salaried officers or agents employed, and is therefore exempt from the laws governing insurance companies, and corporations, associations or societies for the purpose of furnishing life indemnity or pecuniary benefits to widows, orphans, heirs, relatives and devisees of deceased members, or accident or permanent disability indemnity to members thereof.
    The court sustained the motion, and entered an order vacating the order for leave to file the information, quashing the writ, and dismissing the suit, to which there was exception.
    Mr. E. S. Smith, for the appellant:
    Upon the question of practice in quo warranto proceedings, it is claimed that after leave has been granted in open court to file an information, and it has been filed, and summons issued and served, the defendants must plead or demur, and can not have a trial of the case upon affidavits of defendants to the merits of the case, upon a motion to vacate the order granting leave to file the information, to quash the writ, and dismiss the suit. Rev. Stat. chap. 112, secs. 1-4; Practice act, chap. 110, see. 11; People ex rel. v. Morse, 73 Ill. 132; People v. Improvement Co. 103 id. 491; Holden v. People, 90 id. 434.
    I understand the proper practice to he, for the information to set forth the usurpation in general terms, and plea follows specifically setting forth defendant’s title, then replication setting forth specific acts of forfeiture or want of title. Hinze v. People, 92 Ill. 407; People v. Improvement Co. 103 id. 491; People v. Railroad Co. 12 Mich. 389 ; Commonwealth v. Commercial, Bank, 28 Pa. St. 383; Attorney General v. Railroad Co. 6 Ired. 464; People v. Richardson, 4 Cow. 106; People v. Insurance Co. 15 Johns. 358.
    When a member applied for and received a certificate entitling him to one-half of twenty-five per cent of the amount collected upon the death of the members holding certificates numbered next above and below his certificate, he, in effect, took out a policy of insurance upon the lives of the two members to the extent of twelve and a half per cent of the amount collected upon the death of either or both of them, and such a policy is a wager policy, and it is contrary to public policy to permit that kind of business to be done. (Life Ins. Co. v. Hogan, 80 Ill. 35.) And as said in Duer on Insurance, it is as a crime, and not as an agreement, that such should be treated.
    Mr. James McCartney, for the appellees:
    This is a suit brought by an individual relator, and notice should have been given to the defendants before leave was granted to file the information. High on Extraordinary Legal Remedies, secs. 608, 697.
    Notice not having been given defendants of the petition for leave to file the information, it was proper, on the return day of the writ, to move to vacate the leave, quash the information, and dismiss the suit. High on Extraordinary Legal Remedies, sec. 731, et seq.; Commonwealth v. Jones, 12 Pa. St. 365; People ex rel. v. Morse, 73 Ill. 132; People v. Mobley, 1 Scam. 215; People v. Shaw, 14 Ill. 476; People v. Waite, 70 id. 25; People v. Railroad Co. 88 id. 538; Commonwealth ex rel. v. Bank of America, 10 Phila. 126.
    The petition and affidavit of Swigert showed no sufficient ground for leave to file the information. ■ They did not allege that the defendant society secured its benefits by assessments on surviving members. This is not an organization securing its benefits in whole or in part by assessments upon the surviving members, and therefore does not come under the law of 1883. The defendant society is of a purely social and benevolent character, and is excluded by the proviso to section 9 of the law of 1883, from the control of said law.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This case is not analogous to that of The People ex rel. v. North Chicago Ry. Co. 88 Ill. 538, as seems to be claimed by counsel for appellees. There the application was by a private party to file an information. Here it is by the Attorney General, at the instance and upon the affidavit of the Auditor of Public Accounts. It is provided by section 15, chapter 12, of the Revised Statutes of 1874, that “the Auditor shall be deemed the proper officer to institute all suits, motions, and other proceedings in law and equity, in which the State is plaintiff, except in cases otherwise provided by law. ” By other provisions of the statutes the Auditor is given supervision over life as well as other insurance companies, and where companies assume to insure without having sufficient legal authority, it is within the line of his duty to cause them to be prosecuted, and to be deprived of their franchises, etc. And by the second subdivision of section 4, chapter 14, of the Revised Statutes of 1874, it is made the duty of the Attorney General “to institute and prosecute all actions and proceedings in favor of or for the use of the State, which may be necessary in the execution of the duties of any State officer. ” There is not, therefore, in our opinion, the slightest O foundation for the position that this is a private prosecution. It is a suit instituted by appropriate public officers in respect to a matter which concerns, so far as we are able to perceive, the public alone.

The question now comes before us for the first time whether, under the first section of the amended and revised act in relation to quo xoarranto, of March 23, 1874, (Rev. Stat. 1874, chap. 112, p. 787,) it is necessary to lay a rule upon the respondents to show cause against it, upon presenting a petition to the court or judge for leave to file an information in the nature of a quo xvarranto. The language of the prior statute was: “It shall and may be lawful for the Attorney General, or the circuit attorney of the proper circuit, with the leave of any circuit court, to exhibit to such court one or more information or informations in the nature of a quo xvarranto, at the relation of any person or persons desiring to sue or prosecute the same, * * * and to proceed therein in such manner as shall be usual in cases of informations in the nature of quo waxranto,” (Gross’ Stat. 1869, p. 533,)— thus adopting, unmistakably, the common law practice in that respect; and so we said in The People ex x'el. v. Tf/a-ite, 70 Ill. 25: “The mode for instituting such proceedings is, usually, as pursued in the case at bar. The State’s attorney submitted a motion, based on affidavit, for leave to file an information in the nature of a quo xcaxranto. A rule xiisi was laid on defendant to show cause why the information should not be filed. Bespondent answered the rule by counter affidavits.”

But the language of the section now under consideration varies materially in this respect. It provides that “the Attorney General, or State’s attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto, in the name of the People of the State of Illinois; and if such court or judge shall be satisfied that there is probable ground for the proceeding, the court or judge may grant the petition, and order the information to be filed and process to issue. ” This change in phraseology is so marked that we think it clear it was intended not to adhere to the former practice. If it was intended to adhere to it, why change the language of the statute? Authority is given by the present statute to the judge in vacation, as well as to the court, to act upon the petition. But a judge in vacation can make orders only to the extent the statute authorizes him to do so. ■ He possesses no docket, can enter no general orders, and render no judgment in vacation, by virtue of his general powers as judge; and when he is, by statute, authorized to act in vacation, the statute itself is the measure of his authority. In The People ex rel. v. Moore et al. 73 Ill. 132, we held, while not passing upon this question, that the fact that the court, before acting upon the relator’s petition, entered an order for a rule on the respondents to show cause, etc., did not render his act in .subsequently refusing leave to file the information, erroneous; but we there intimated that the court might have acted upon the petition alone. We now hold that the court or judge may, under the present statute, act upon the petition of the relator without first laying a rule upon the respondents to show cause, and if satisfied that there are probable grounds for the filing of the petition, allow it to be filed. No hardship can result from this, when it is reflected that the summons, if ordered in vacation, must be returnable on the first day of the next succeeding term; and if ordered in term time, it must be returnable on any day of the same term, not less than five days after the date of the writ, as shall be directed by the order of the court, (see Quo Warranto act, sec. 2,) and that the respondents, upon the return to the writ, may demur to the information, and thus test its sufficiency; or, if it be sufficient, by plea set up any defence why judgment should not be pronounced upon it against the respondents. (See Quo Warranto act, sec. 4.) When the court had here allowed the information to be filed, and-ordered the summons to be issued, its discretionary powers were exhausted, and the issues of fact and of law presented by the pleadings must then have been tried and determined “in accordance with the strict rules of law, in the same manner, and with the same degree of strictness, as in ordinary cases.” (High on Extraordinary Legal Remedies, latter part of section 606.) It is not denied that if the order to issue the summons had been made under a misapprehension of some fact material to be known by the court before making such order, and but for which it would not have been made, it would have been competent for the court to vacate the order at any time during the term. But the court here acted upon no such mistake. It simply allowed that which should have been interposed as a defence on the final hearing, to be urged as a ground for vacating the order.

With regard to the merits of this case we desire to express no opinion, further than to say we think there is probable cause for allowing the information to be filed and the summons to issue. Although the payment of dues to a corporation on account of fees or assessments upon its members, may be purely voluntary, persons may acquire legal rights to share in them when they are paid. Through forfeiture of benefits, etc., payments of dues on account of fees or assessments may be almost, if not quite, as effectually enforced as by legal process. At present we do not perceive why the payment of a premium to one who holds a number next to that held by the one who dies, and solely because he does die, is not, in effect, in the nature of a wager upon the life of one in whom the party thus benefited has no interest, and why, therefore, the transaction is not within the condemnation of the principle announced in Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill. 35. And see, also, to like effect, Carman v. Wetherbee, 105 Mass. 149; State v. Standard Life Ins. Co. 38 Ohio St. 281. At all events, it can not be said the questions are so clear and free from doubt that there are not probable grounds for allowing the petition to be filed.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    James McPherson v. The Village of Chebanse.

      Filed at Ottawa May 15, 1885.

    1. Cities and villages—power to prohibit the keeping open places of business on Sunday. Cities and villages incorporated under the general Incorporation act, by subdivision 66 of section 62, article 5, giving power “to regulate the police of the city or village, and pass and enforce all necessary police regulations, ” may pass an ordinance prohibiting persons from keeping open their places of business in such city or village, for the purpose of vending goods, wares and merchandise, on Sunday, and provide a penalty for a violation of the same.
    2. Same—Sunday ordinance, whether inconsistent with Criminal Code— concurrent powers of municipal authorities and of the State. The police regulations of a village may differ from those of the State upon the same subject, if they be not inconsistent therewith. A village ordinance prohibiting the keeping open of places of business on Sunday, for the sale of goods, etc., is not inconsistent with the provisions of section 261 of the Criminal Code.
    3. Same—police powers, under general Incorporation law — of their extent as to subject matter. Subdivision 66 of section 62, article 5, of the “Act to provide for the incorporation of cities and villages, ” which reads that the city or village council shall have power “to regulate the police of the city or village, and pass and enforce all necessary police regulations, ” is not limited in its application to the organization and regulation of a police force, but may extend to and embrace a subject matter of police regulation, under the general police power of the State.

      Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the County Court of Iroquois county; the Hon. Stephen Ct. Bovie, Judge, presiding.
    Mr. William Potter, and Messrs. C. H. & C. B. Wood, for the appellant:
    The village board possessed no power to pass ordinances, except such as is expressly granted, or such as is necessary to carry into effect a power expressly granted. City of Alton v. Fire Ins. Co. 72 Ill. 328.
    Municipal corporations exercise only delegated powers. Schott v. People, 89 Ill. 195; Town of Petersburg v. Metzker, 21 id. 205.
    The granting of power to license certain occupations and business, specially enumerating them, by a familiar rule of construction must be construed precisely as if the law in express terms inhibited the licensing of all trades and occupations not contained in the enumeration. City of Cairo v. Bross, 101 Ill. 475.
    By the common law, no judicial act could be done on Sunday; but as to all other acts not of a judicial nature, the common law made no distinction between Sunday and any other day. Parsons on Contracts, (5th ed.) 757, note n, and cases there cited.
    The power “to regulate the police of the city or village, and pass and enforce all necessary police ordinances, ” obviously only refers to ordinances for the organization and regulation of a police force that may be created and maintained in cities and villages. Sheridan v. Colvin, 78 Ill. 245.
    Only such labor as disturbs the peace and good order of society, is prohibited by the statute. Crim. Code, sec. 261; Richmond v. Moore, 107 Ill. 429.
    A municipal corporation can not, in virtue of its incidental power to pass by-laws, or under any general grant of authority, adopt by-laws which infringe the spirit or are repugnant to the policy of the State as declared in its general legislation. Dillon on Mun. Corp. (3d ed.) sec. 329.
    We claim that the regulations under police powers which such bodies may make, are confined to those enumerated in the act. Hawthorn v. People, 109 Ill. 302; Harmon v. City of Chicago, 110 id. 400.
    Mr. Tracy B. Harris, and Mr. Thomas S. Sawyer, for the appellee:
    The village authorities have power to regulate the police of the village, and pass and enforce all necessary police ordinances. Par. 66, sec. 1, art. 5, of act relating to cities and villages.
    The right to pass laws regulating or prohibiting keeping open places of business on Sunday, is referable to police powers. Cooley’s Const. Lim. 596, 588; Specht v. Commonwealth, 8 Pa. St. 312; State v. Ams, 20 Mo. 214; Adams v. Hamel, 2 Doug. (Mich.) 73.
    The police regulations of the village may differ from those of the State upon the same subject, there being no limit to the power conferred on the village in that subject. Cooley’s Const. Lim. 198, 199; Rogers v. Jones, 1 Wend. 261.
    The regulation of labor, trade and traffic on Sunday is within the legitimate power of a city or village, and the ordinance in question is valid. 1 Dillon on Mun. Corp. p. 600, secs. 329, 330; St. Louis v. Cafferatta, 24 Mo. 94; State v. Cowan, 29 id. 330; Frolichstein v. Mobile, 40 Ala. 725; Hudson v. Georcy, 4 R. I. 485; Specht v. Commonwealth, 8 Pa. St. 312; Cincinnati v. Rice, 15 Ohio, 225; Korwitch v. Atlanta, 44 Ga. 204; City Council v. Benjamin, 2 Strobh. (S. C.) 508 ; Megowan v. Commonwealth, 2 Metc. 3; State v. Welch, 36 Conn.215.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit to recover from the defendant, who was engaged in the business of vending goods, wares and merchandise in the village of Chebanse, a penalty for keeping open his place of business in said village on Sunday, for the purpose above mentioned, in violation of an ordinance of the village prohibiting persons from keeping open their places of business in the village, for the purpose of vending goods, wares and merchandise, on Sunday. In the county court a demurrer was sustained to the declaration, and judgment was given for the defendant. On appeal to the Appellate Court for the second District, the judgment was reversed, and an appeal taken to this court.

The only point made for the reversal of the judgment of the Appellate Court is, that the village had no power to pass the ordinance in question. • Subdivision 66, of section 62, article 5, of the “Act to provide for the incorporation of cities and villages, ” (Rev. Stat. 1814, p. 221,) gives the power “to regulate the police of the city or village, and pass and enforce all necessary police ordinances. ” Under this grant of power, we are of opinion, there is found authority for the passage of the ordinance.

It is insisted this clause only refers to the organization and regulation of a police force. We think this a too narrow construction,—that the clause is not limited in its application to police officers, but may extend to and embrace a subject matter of police regulation, under the general police power of the State. Unintermittent toil of body or mind is not the best condition of either. They have need of relaxation and periods of rest from labor, in order for their healthfulness and greatest working efficiency. From the antiquity and general extent of the practice of setting apart one day in seven as a day of rest, that would seem to be denoted as a suitable, if not the necessary, requirement of the human economy as to the portion of. time which should be given to rest from labor. Thus, with the Jews, under the Mosaic code, we find one day in seven (the Sabbath) dedicated to an entire cessation from ordinary labor. Afterward we have the Lord’s day. In A. D. 321, Constantine, by edict, ordered the suspension on Sunday of all business in the courts of law, except the manumission of slaves, and all other business except agricultural labor. In Great Britain, from early times, Sunday was set apart as not to be employed in secular labor. With respect to the transaction of judicial business, there came the legal maxim, dies dominions non est juridicus. In the 29th of Charles II, (A. D. 1678,) after there having been passed several-previous statutes prohibiting certain acts and business on Sunday, the statute was passed prohibiting the doing of any worldly labor, business or work of one’s ordinary calling upon the Lord’s day, works of necessity and charity excepted. In this country, statutes of a similar character, prohibiting labor on Sunday to a more or less extent, exist in most, if not all, the States of the Union. Aside from the religious aspect, the appointment of the Sabbath merely as a day of rest from labor, stands recommended as a valuable institution of State policy.

Authorities are cited to the purport that a municipal corporation can not, under any general grant of authority, adopt ordinances which infringe the spirit of the State law, or are repugnant to the policy of the State, as declared in its general legislation; and as our statute (section 261 of the Criminal Code, Rev. Stat. 1874, page 391,) goes only to the extent of forbidding such labor on Sunday as “disturbs the peace and good order of society, ” it is insisted that the ordinance goes beyond the State legislation on the subject,—that it is inconsistent with and against the policy of the general statute. The police regulations of a village may differ from those of the State upon the same subject, if they be not inconsistent therewith. (Cooley’s Const. Lim. 198.) The ordinance does not prohibit what the statute permits. There is no repugnancy between them. The ordinance may consist with the statute. The former differs from the latter in being more specific. We do not admit that the keeping open of the stores in a village on Sunday is allowable under the statute—that it would not disturb the peace and good order of society. Sunday, as it is observed by common usage, is not only set apart as a day of rest from labor, but it is devoted to religious worship. The consecration of the day to its wonted manner of observance, is a blessing to mankind. Besides the recuperative effect' referred to, it has its other beneficent uses. It affords opportunity for moral, intellectual and social culture. It is promotive of good habits, and tends to improve the manners of men. It is civilizing and refining in all its influences. Whatever detracts from the observance of the day, as it is customarily observed, is not to be countenanced. The keeping open by persons of their places of business in a community, on Sunday, for the exercise of the business of their ordinary callings, is a public and serious interference with the observance of the day in its accustomed mode of observance. It is obstructive of the purposes for which the Hay is set apart. It is offensive to the moral sense of the’ community. It disturbs the peace of society, in its open interference with the peace and quiet of a day devoted as a day of rest and for religious worship. It disturbs the good order of society, in publicly and flauntingly, and in defiance of public sentiment, desecrating a day, and inviting others to its desecration, set apart for purposes of the highest well being of human society,—hence the entire harmony of the ordinance with the statute. As a police regulation, in the interest of the good order and well being of the community, the ordinance, in our opinion, finds justification. See Cooley’s Const. Lim. 596, and authorities there cited.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    James E. Power v. William L. Rankin.

      Filed at Springfield May 14, 1885.

    1. Statute of Frauds—promise to pay the debt of another—of a new consideration—surrendering an existing security. Where the moving consideration for the promise to pay money is the liability of a third person, the promise must be in writing; but if there is a new consideration moving from the promisee to the promisor, then the superadded consideration makes it a new agreement, which is not within the Statute of Frauds.
    2. So where a party having a chattel mortgage upon a lot of corn, to secure a note of some $1200, relinquishes the same, and allows the corn to be sold and delivered by his debtor, in consideration that an agent, in whose hands $1000 was placed, had agreed to pay him that sum when the corn should be delivered, it was held, that the verbal promise to pay the holder of the chattel mortgage was not within the Statute of Frauds, and that an action would lie for a failure to make the payment.
    3. Common counts—when a recovery may be had thereunder—or whether the plaintiff must declare specially. Where the promise to pay money is a collateral undertaking, the declaration in an action for a failure to pay must be special; but when the promise is .an original undertaking, a recovery may be had under the common counts.
    4. So where the purchaser of a lot of corn gave a cheek for $1000 to the, defendant, to be held until corn to that amount was delivered, and then paid to the seller, and a party holding a chattel mortgage on the corn would not consent to its delivery until the defendant agreed and promised to pay the same to him, it was held, that the mortgagee to whom the promise was made might recover the $1000, under the common counts, after the delivery of the corn, such promise being regarded as an original undertaking, as distinguished from one that is merely collateral.
    Appeal from the Appellate Court for the Third District;— heard, in that court on appeal from the Circuit Court of Sangamon county; the Hon. W. E. Welch, Judge, presiding.
    Messrs. Bradley & Bradley, for the appellant:
    The court erred in overruling the motion to exclude all of plaintiff’s evidence, because it was solely in proof of a verbal promise to pay the debt of Mrs. Glasscock, and void under the Statute of Frauds. Hurd’s Stat. 1881, see. 1, chap. 59; Owen v. Stevens, 78 Ill. 462; Laidlow v. Hatchett, 75 id. 11; Frame v. August, 88 id. 424.
    The promises declared on by the common counts could only be original promises, whereas these promises of Power, if he made them, were purely collateral promises, and being such, would have to be declared upon specially, in order to make the evidence proper under them. Maxwell v. Longnecker, 89 Ill. 102; Coal Co. v. Hood, 77 id. 68; Durant v. Rogers, 71 id. 121.
    The promise or contract upon which the common counts are based, would be such as the law implies. An implied contract, however, will only arise in the absence of an express contract. Compton v. Payne, 69 Ill. 354.
    Messrs. Patton & Hamilton, for the appellee:
    Where the leading object of the undertaking is to promote some object of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another. Wilson v. Bevans, 58 Ill. 232; Clifford v. Luhring, 69 id. 401; Scott v. White, 71 id. 287; Bunting v. Darbeyshire, 75 id. 408; Borchsenius v. Canutson, 100 id. 82.
    If there is a new consideration moving from the promisee to the promisor, as, when he gives up some lien or security, then the superadded consideration makes it a new agreement, for the performance of which no third person is liable, and it does not fall within the statute. Scott v. Thomas, 1 Scam. 58; Curtis v. Brown, 5 Cush. 491; Nelson v. Boynton, 3 Metc. 396; Smith v. Sayward, 5 Greenlf. 504; Boyce v. Owen, 2 McCord, 208; King v. Despard, 5 Wend. 277; Calkins v. Chandler, 36 Mich. 320.
    An oral promise to pay the debt of another out of his property placed in the hands of the promisor for that purpose, is not within the Statute of Frauds. Mason v. Wilson, 84 N. C. 51; Ahnstead v. Gouls, 18 Johns. 12; Wait v. Wait, 28 Vt. 350.
    Power agreed to pay the $1000 to Bankin peremptorily and absolutely, and nothing remained for him to do but to pay the money, and the common counts were sufficient. Childs v. Fischer, 52 Ill. 167; Jackson v. Hall, 53 id. 440; Runde v. Runde, 59 id. 98.
    The principle is this: When, in consideration of the promise to pay the debt of another, the defendant receives property and realizes the.proceeds, the promise is not within the mischief provided against, and the plaintiff may recover on the promise, or in an action for money had and received. ” See Stanley v. Heddick, 13 Ired. 86, quoted in Mason v. Wilson, 84 N. C. 51.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by William L. Bankin, against James E. Power, to recover $1000, which it is alleged Power agreed to pay in consideration that Bankin would permit certain corn, upon which he held a mortgage, to be delivered to a certain person to whom the corn had been sold by Mrs. Glasscock. Bankin recovered a judgment in the circuit court for the amount claimed, and that judgment was affirmed in the Appellate Court.

After the plaintiff had concluded his evidence, the defendant entered a motion to exclude the evidence from the jury. The court overruled the motion, and this decision of the court is relied upon as error.

The main ground relied upon in support of the motion is, that the admitted evidence established merely a verbal promise to pay the debt of another, and was therefore void under the Statute of Frauds. We do not concur in the view taken by appellant’s counsel. As we understand the testimony, in the fall of 1881 Mrs. Glasscock was indebted to Bankin on a certain note for $1249, bearing date November 16,1881, and due October 1, 1882. The payment of the note was secured by a chattel mortgage on a crop of corn raised that season. In the summer of 1882, Mrs. Glasscock contracted the corn to Ulrich, who gave Power a check for $1000, which he was to hold until one thousand dollars’ worth of the corn should be delivered, when ther money was to be paid to Mrs. Glass-cock, or her order. After the check was placed in the hands of Power, and before any of the corn was delivered, Bankin and Power met at the office of Mr. Sales, and Bankin refused to allow the corn to be delivered unless the money in the hands of Power should be applied on his mortgage indebtedness. After discussing the matter for some time, Power finally agreed if Bankin would permit the corn to be delivered to Ulrich, he would apply the money in his hands in payment of the note and mortgage held by Bankin. This arrangement was made, according to the testimony of Sales, about the first of August, 1882.

A parol promise to pay the debt of another is rendered void by the Statute of Frauds, and an action can not be enforced upon such a promise. There is no room for doubt as to the general rule on this subject. In Scott v. Thomas, 1 Scam. 58, it was held that where the moving consideration for the promise is the liability of a third person, there the promise must be in writing; but if there is a new consideration moving from the promisee to the promisor, there the superadded consideration makes it a new agreement, which is not within the statute. In Borchsenius v. Canutson, 100 Ill. 82, where the plaintiff had relinquished a lien or given up a security for a debt in consideration of a promise by a third party to pay the debt, the promise was held to be an original undertaking, and not affected by the Statute of Frauds. Here Bankin had a lien on the corn for the payment of his debt, which he relinquished, and allowed the corn to be sold, upon the promise of Power that the money ($1000) which he held in his hands should be paid to him. A promise of this character, under the rule established by the authorities, is an original undertaking, and in no manner affected by the Statute of Frauds. Such being the case, the evidence was properly admitted, and the court did right in overruling the motion to exclude the evidence from the jury.

But it is said in the argument that Rankin had no mortgage at the time Power promised to pay the money to him, and hence no lien was waived, or security given up, on the faith of the promise. This is a clear misapprehension of the evidence bearing upon this branch of the ease. It is true that Rankin fixed the date of the promise made by Power to him, in September or October, 1881; but this was a mistake as to the date. The corn sold was the crop of 1881, but it was not delivered • until August, 1882, and Sales, ivho was present and heard the arrangement made between Rankin and Power, testified that it occurred “about the beginning of the delivery of the corn, ■* * * from the 1st to the 11th of August, 1882.” If there had been no evidence as to the date of the agreement except Rankin’s testimony, there might be much force in appellant’s position on this question; but the evidence of Sales places the date of the agreement beyond question, and at a time when the mortgage lien was in full force and effect.

Objection is made to an instruction given by the court in behalf of the plaintiff. We have examined the instruction, and while there may be objections of a technical character urged against it, yet so far as the law involved in the case is concerned, the instruction lays down a correct proposition of law.

It is also contended that the court erred in refusing one of defendant’s instructions. The instruction refused may announce a correct proposition of law, and might, under a different state of facts, be proper; but as we understand the record, there was no evidence upon which it could properly be based, and under such circumstances it was the duty of the court to refuse it.

It is also objected that a recovery could not be had under the common counts. Where the promise sued upon is a collateral undertaking, then the declaration is required to be special; but where the promise, as here, is regarded as an original undertaking, a recovery may be had under the common counts. Runde v. Runde, 59 Ill. 98, is an authority in point on this question.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scholfield

text:
    The North Chicago Rolling Mill Company v. Lars F. Johnson.

      Filed at Ottawa May 15, 1885.

    1. Negligence—master and servant—duty of the former to use proper precautions for the safety of the latter—as, in the unloading of cars, to avoid collisions, etc. In an action to recover for personal injuries resulting from alleged negligence, it appeared the defendant company put the plaintiff and others of its servants to work unloading a railroad freight car standing on a spur of a side-track having connection with other tracks only at one end, and being a track not used for passing trains, and there being nothing to lead the laborers to believe the car they were unloading would be disturbed, and while so engaged the loaded car was violently struck by other cars which became detached from an engine used in switching cars in the yard, whereby the plaintiff was injured.” It was held, that it was the duty of the defendant not to have brought on this peril without timely notice to the laborers so engaged; that either the cars ought not to have been brought into the position they were, without notice, or it should have been first ascertained that no danger to the laborers could result therefrom, and that the failure to do so was gross negligence.
    2. The attempt to bring a train of cars on the switch to a point where the defendant’s servants were engaged in unloading a car, where the grade was a descending one, without notice to them, or any signal by the bell or whistle of the engine of the approach on such track, and.without having the moving cars under control by proper and sufficient couplings and brakes attached, the yard-master knowing that men were engaged all around the car they were unloading, was gross negligence on the part of the defendant.

      3. Same—as to whose duty it was to see that the appliances for controlling the moving ears were in proper order, etc. In such an action, where the injury resulted from the uncoupling of certain cars in a train being switched in the defendant’s yard, so that they could not be controlled by the engine, and from a defective brake on one of the detached cars which struck the car on which the plaintiff was engaged at work, it was held to be wholly immaterial whose duty it was to inspect the couplings of the cars, brakes, etc., or how on that occasion the engineer handled his train, and that proffered evidence in such respect was properly excluded.
    4. Same—as to what is negligence—evidence in respect thereto—custom at other places as to the mode of handling railroad cars. Where the charge of negligence of a defendant is the sudden starting of a detached car upon which the plaintiff was engaged in unloading brick, without previous notice or warning, by the collision of other cars being pushed back, evidence tending to show that the pushing of the cars instead of pulling them was not negligence, is inadmissible. The custom in other yards as to pushing or drawing cars in such a case is wholly immaterial.
    5. Same—proof of custom as to watchfulness of railroad laborers in loading and unloading cars. In an action by a laborer employed by defendant, to recover for an injury caused by the collision of other cars being switched, with the one on which he was unloading brick, without any signal or warning, the court sustained an objection to this question asked by the defendant of a witness, who was a switchman: “What, if anything, was the rule or custom as to laborers unloading and loading cars, and switchmen, with reference to the laborers looking out for the movement of their car while being loaded or unloaded?” Held, that the ruling was correct, as it was not shown there was any rule or custom in this respect. If the men were enjoined to keep a lookout constantly for the approach of trains while at work, that fact was susceptible of proof.
    6. Fellow-servants—who regarded as holding that relation, within the rule exempting master from liability for injury to one by negligence of the other. Servants of the same master, to be co-employes or fellow-servants, so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, must be such as are directly cooperating with each other in a particular business,—that is, the same line of employment,—or such that their usual duties shall bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution.
    7. The relations of the servants must be such that each, as to the other, by the exercise of ordinary caution can either prevent or remedy the negligent acts of the other, or protect himself against its consequences. Where there is no right or no opportunity of supervision, or where there is no independent will, and no right or opportunity to take measures to avoid the negligent acts of another without disobedience to the orders of an immediate superior, the doctrine exempting the master can have no application.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. W. H. Baenum, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant.
    Messrs. Brandt & Hoffman, for the appellee.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Appellant was possessed of a rolling mill, and other works connected with it, and of adjoining yards, upon which were railway tracks used for the movement of cars belonging to appellant and to other parties with whom it did business, under the management'and cohtrol of employes of appellant. Appellee was in the employ of appellant as a common laborer, and had been, for about one month, engaged in removing rails from its mill and placing them upon cars, though it was within the line of his duty to unload bricks from cars, and, in general, to perform any common labor required of him in and about the mill. He was under the immediate charge and control of one Clute, assistant foreman of the rail mill. He and a number of co-laborers were directed by Clute to unload the bricks from a car standing on one of appellant’s tracks near the rolling mill, which they were proceeding to do, when, before they had quite finished the work, a train of cars was backed down the track on which the car they were unloading was standing, and against that car with such violence as' to suddenly put it in motion, and thereby to knock appellee down and break his leg, and otherwise seriously injure him. The train causing this injury was under the immediate charge and control of one Crowley, appellant’s yard-master, and neither Clute had any charge or control of the men operating the train, nor Crowley any charge or control of appellee and the other men engaged in unloading the bricks.

Appellant claims that the injury was caused, primarily, by a defective link coupling the cars somewhere near the middle of the train, which breaking, the train parted, and as it was being backed or pushed, with the engine in the rear, that part in advance beyond this break could not thereafter be controlled by the engine; and, secondarily, by a defective brake-wheel on the extreme advancing car, whereby it was impossible to cheek the momentum of the cars, the grade descending from the point at which the break occurred, to the car from which the bricks were being unloaded. Crowley had caused the carload of bricks to be placed where it was, and shortly before the injury had sent men to remove it, but finding that it was not yet unloaded, had countermanded that order and directed that certain coal cars be brought and backed in, and these composed the train causing the injury. He claims to have given a signal to stop the train when he saw that it was likely to hit the brick car, and also that when he saw, after-wards, that the train had not stopped, he cried out to the men unloading the brick, to look out, etc. It is not claimed that any bell was rung or whistle sounded to give warning of the approach of this train, and it is quite evident that no cries or words of warning reached the ears of appellee, and of some of the other laborers.

On the trial, appellant’s counsel asked a witness, who was a switchman in appellant’s yard, whether he was acquainted with the manner of switching in other yards, as to having the cars ahead or behind the engine. The question was objected to by appellee’s counsel, and the objection was sustained by the court. It is now urged that this ruling -was erroneous. This contention results, as we conceive, from a misapprehension of the issue before the jury. Counsel seem to understand that the fact the cars were pushed rather than pulled by the engine, is charged in the declaration as the negligence whereby the injury was caused. The gist of the charge of negligence, in each count, is, that the car wherefrom appellee and others were unloading bricks, was, without any previous notice to them, by the ringing of the bell or otherwise, suddenly started or driven forward by the collision of the cars that were being pushed.' The same result, precisely, might have been produced by pulling the cars. Whether it was negligent to back up a train is nowhere made a question, but the negligence charged lies wholly in the backing of the train, without previous notice, against a standing car which is being unloaded. It is not possible, therefore, that what may have been done in other yards in switching, in respect of having the cars before or behind the engine, could have in any degree enlightened the jury as to this issue. We do not, therefore, think anything decided in Pennsylvania Co. v. Stoelke, 104 Ill. 201, and Pennsylvania Co. v. Hankey, 93 id. 580, has any relevancy.

Again, counsel for the appellant asked the same witness, “What, if anything, was the rule or custom as to laborers unloading and loading cars, and switchmen, with reference to the laborers looking out for the movement of their car while being loaded or unloaded.” Appellee’s counsel objected to the question, and the court sustained the objection, and this ruling, also, is claimed to be erroneous. It is sufficient, to sustain this ruling, that it was not shown that there was any rule or custom in this respect, nor did the counsel offer or propose to prove any particular custom upon the subject. Apart from this, however, the witness seems to have been allowed to state, without objection, all that he knew in that regard. He says: “It sometimes happened there in the yard, that while a ear was being loaded or unloaded it became necessary to couple to it and move it, for the purpose of placing other cars. It would happen once a day, on an average. We can not tell half a day in advance about the necessity for moving cars which are being loaded or unloaded. When it became necessary to move cars during the time of loading or unloading, we could notify the boss, and if we were going into the stock house, we would whistle or ring the bell. * * * We might move a car whilst it was being unloaded. If it became necessary to do so, we notified the boss of the men. That was the custom.” If the men were enjoined to keep a lookout constantly for the approach of trains while at work, the fact was susceptible of proof, but the evidence offered did not tend to prove that.

Another witness was asked by counsel for appellant,—he having previously stated that he was acquainted with the manner in which switching was done in other yards,—“Is it ordinarily expected of the switchmen to examine the coupling-pins and brakes, and things of that kind?” And again, “What was the custom at and before that time, in that yard, respecting the examination of links, pins and couplings, by the brakemen and switchmen?” Another witness, the engineer, was asked by the same counsel, “State whether you were managing your train in the usual and ordinary way.” Another witness was asked by the same counsel whether he knew what the custom was in and around the city of Chicago in respect to switchmen in the yard examining each car, and seeing whether it is in order or not before they move it; and upon being answered in the affirmative, the counsel proposed to prove by this witness that “it is not the ordinary custom of switchmen in any yard, within the knowledge of this witness, to examine into the condition of the cars before they move them,—that is the duty of other persons. ” The court, on objection, held each of these questions inadmissible, and refused to allow them to be answered,—the last question, however, only so far as other yards in Chicago were concerned, the witness being permitted to state what was the custom of appellant in this respect,—and we are asked to reverse the judgment below because of these rulings, also. We think it enough to say, that in our opinion it was wholly unimportant whose duty it was to inspect the couplings of the cars, brakes, etc., and how, ón that occasion, the engineer managed his train. The facts are uncontroverted that appellee and others were put to work unloading a car standing on a spur of a side-track,—i. e., a track having connection with other tracks only at one end. It was not at a place where there were passing trains. There was not a single circumstance in evidence tending to prove that a laborer at that car ought to have anticipated that it might he disturbed while being unloaded. The labor was wearisome and engrossing, and its performance required of the laborers immediate and constant attention. It was, therefore, the duty of appellant to bring no peril upon the laborer without first giving him timely notice. Either the cars ought not to have been brought into the position they were, before the bricks were unloaded, and without timely notice to the laborers of the danger thereby, or it should have been first ascertained that no danger to those laborers could result. No matter whose individual duty it was to inspect the company’s brakes, etc., the obligation was upon appellant not to bring upon appellee and the other laborers, without previous timely notice, in the helpless condition they were, this danger, and to do so was, unquestionably, in fact, gross negligence, to which there was no contributive negligence on the part of appellee. The ruling was entirely correct, in our opinion. The proposed evidence, instead of enlightening, would only have tended to perplex and mislead the minds of the jury.

It is objected that the court below erred in submitting the question of comparative negligence to the jury, because there was no circumstance tending to show gross negligence on the ’ part of appellant. We do not concur in .this view. In addition to the circumstances before alluded to as tending to prove gross negligence upon the part of appellant, is the fact that we have previously stated, that from a point some distance in the direction of the connecting tracks there is a down-grade to the point where the car from which the bricks were being unloaded stood; and to bring cars to that point without having them certainly under control, while knowing, as this yard-master did, that men were at the same time engaged all around the car taking out the bricks, and their attentions absorbed in their labors, is but little, if any, short of criminal recklessness.

Objection is also urged that the court erred in refusing to give the seventh in the series of instructions asked by the appellant. It reads as follows:

“If the jury believe, from the evidence, that plaintiff’s usual employment at and before the time of the injury was to load and unload cars in the defendant’s yard, and that it was the usual duty of those having control of the train in question to move cars in said yard before and after being unloaded, and that the plaintiff, and those having control of said train, whilst engaged in their respective employments, could observe how each did their work, then the said plaintiff and the persons having control of said engine were co-employes.”

This falls short of an accurate statement of what is essential to constitute a co-employe, within the ruling in Chicago and Northwestern Ry. Co. v. Moronda, 93 Ill. 302, Chicago and Alton Railroad Co. v. May, Admx. 108 id. 288, and Chicago and Eastern Illinois Railroad Co. v. Geary, 110 id. 383. That ruling requires that the servants of the same master, to be co-employes, so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly cooperating with each other in a particular business,—i. e., the same line of employment,—or that their usual duties shall bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution. The idea is, that the relations between the servants must be such that each, as to the other, by the exercise of ordinary caution, can either prevent or remedy the negligent acts of the other, or protect himself against its consequences; and, of course, where there is no right or no opportunity of supervision, or where there is no independent will, and no right or opportunity to take measures to avoid the negligent acts of another without disobedience to the orders of his immediate superior, the doctrine can have no application. How can the laborer be profited by a knowledge of the usual manner of doing work in another department, if he is unable, in any reasonable way, while engaged in the proper discharge of his duties, and without disobedience to his immediate superiors, to influence the conduct of the laborers in that department ? The instruction was properly refused.

Perceiving no sufficient ground upon which to reverse the judgment below, it is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    George F. Harding v. John V. Le Moyne et al.

      Filed at Ottawa May 15, 1885.

      1. Administration of estates—lands of an estate—powers and duties of the administrator in respect thereto. An administrator takes no interest in or to the realty of his intestate. In no event can he take anything more than a mere power, and in the absence of an insufficiency of personal assets to pay debts, he has nothing whatever to do with it.
    2. Same—sale of land to pay debts—prerequisites to the right. Under the act of 1857, it is essential to the right of an administrator to apply for an order to sell real estate to pay debts, and to the jurisdiction of the court to grant such order, that it shall be made to appear by the petition that the personal estate of the testator or intestate is insufficient to pay the just debts against his or her estate, and that there be real estate to which the testator or intestate had “claim or title,” and that the executor or administrator has made a just and true account of the personal estate and debts of the deceased, to the proper county court. Unless these jurisdictional facts appear on the face of the petition, the court has no power to make any order in the premises.
    3. Same—of the character of title required, in order that the land may be sold. On an application by an administrator for leave to sell land to pay debts and costs of administration, it is not material whether the deceased had the better title to the land sought to be sold or not, or, indeed, whether he had any title at all. It will be sufficient if the deceased, at his. death, had a bona fide claim of title.
    4. Same—claim of title adversely—whether it should, be interposed, and for what purpose. In a proceeding by an administrator for leave to sell land to pay debts, the court, exercising but a mere statutory authority, has no jurisdiction to settle and determine conflicting titles to the land, or to remove clouds upon title. If the paramount owner of the land is made a defendant, it would doubtless be his duty to assert his rights to the same in his answer,— not for the purpose of forming an issue to be tried in that proceeding, but for the purpose of giving notice of his rights, and thus prevent an estoppel in pais.

    5. Same—of defences generally, to application to sell land to pay debts— and in what manner interposed. The procedure upon appearance of the defendants being as in chancery, if the petition fails to state all the facts necessary to give the court jurisdiction, the defendants may demur to the same, or move in arrest, or treat the whole proceeding as a nullity. If the petition is good on its face, but in fact is untrue, an answer would be necessary, which may be a simple traverse of the facts alleged, or the answer may set up any special circumstances showing that the debt's or claims for the payment of which the land is sought to be sold, are not bona fide, or legally binding on the estate or heirs.
    6. Same—of the decree of sale—of its requisites, and the measure of relief it may give. Whatever is necessary to effectuate the sale of the “title or claim” which the deceased had to the land sought to be sold, the court may lawfully do; but it must act on the title or claim as it finds it. The court must find the amount of the indebtedness, order the sale, fix its -terms, and prescribe the manner of conducting it, so far as this is not done by the statute itself; and when made, the court may either approve it, or set it aside for proper cause.
    7. As a necessary incident to the power to make the sale, the court must also determine whatever questions may arise in respect to the payment of the purchase money or the sufficiency of the conveyance, and, in short, all questions relating to the sale. In respect to the land, the. court can-find only the fact that the deceased had title or a claim to the same, and the sale will be subject to all adverse independent claims of title.
    8. Same—possession—how acquired by purchaser—power of the court ordering sale. The court, whether the circuit or county court, under whose decree an administrator sells land to pay debts, has no right or authority of law to enter an order requiring the delivery of possession to the purchaser by parties claiming an independent title thereto. The purchaser must establish his right to the possession by an action in a court of law where legal titles are cognizable.

      9. Chancekx—power to give possession of land. Courts of equity in the exercise of their ordinary and general chancery jurisdiction, where the right to possession of real property is involved or liens thereon are to be enforced, and all persons in interest are made parties, may, upon the consummation of the suit, do complete justice by putting the successful claimant into possession. And on a sale in a proceeding to foreclose a mortgage or enforce a lien, the court may extend the same relief to a purchaser under the decree.
    10. But this rule has its exceptions. Thus, if one, pending the suit, enters, not under a party thereto, or under one who had not derived title to the premises, or had gone into possession under a party pending the suit, he can not be turned out of possession under the decree. So in case of a foreclosure sale, if the person in possession shows a right paramount to the mortgage, the court will not attempt to decide any question of legal title, and the possession must then be sought by proceedings at law.
    11. Estopped—by failing to assert party’s rights. It is a principle of general application that when the owner of property, real or personal, sees another having no right, or a limited right thereto, about to sell it absolutely to an innocent purchaser, he must speak and assert his ownership, otherwise he will be estopped from setting up his title against such purchaser, or one claiming through him.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. George R. Grant, for the appellant:
    The writ of assistance will issue in all cases to put a purchaser in possession who has purchased under decree of court. Kessinger v. Whittaker, 82 Ill. 25; Rorer on Sales, secs. 1-18.
    Under the Revised Statutes of 1874, (chap. 37, sec. 49,) there is expressly conferred upon even the probate court, in such proceeding, full power “to make all necessary orders to carry into effect any decree previously entered, including necessary writs therefor. ” Such a motion is a mere continuance of the original case; and no one can intermeddle pendente lite, and if they do, they may be disregarded. Rorer on Sales, secs. 1-18.

      In Bush v. Fowler, 36 Ill. 53, the court fixes the limits of power of giving possession by saying what the court can not do, viz., that the court can not put out one who is not a party and who was in possession before suit was brought. Richardson v. Hadsall, 106 Ill. 477. See, also, 37 Ill. 300, showing this to be the only exception.
    The writ is “ex debito justitim.” Beatty v. De Forrest, 12 C. E. 482.
    Some difficulties are alleged to exist touching the letting of the plaintiff into possession of an undivided half. This is the form of the proper order in such case. (Freeman on Co-tenancy, secs. 287-289.) On page 295, the order is stated to be, “to let the plaintiff into possession, ”—not to put the defendant out.
    In Morse v. Finch, 1 Scam. 495, this court held that forcible detainer may be maintained by one tenant in common against another. In Bruce v. Roney, 18 Ill. 74, the court held, reversing and remanding, with instructions to follow its judgment, that a writ of possession might become necessary, and should be entered in conformity with its opinion for what was, in that case, an undivided half of the premises.
    Mr. John P. Wilson, for the appellees:
    . A proceeding by an administrator to sell land is purely statutory, and in it the court has no power or authority to determine questions of title or rights of possession. Beebe v. Saulter, 87 Ill. 521.
    The application, here, is to remove obstructions,—not an application in the progress of the cause, when a hearing can be had, but by an order, after the court has granted all the relief asked by the administrator, and after the court has exhausted all authority given by the statute. The administrator could not have asked, or the court granted, a determination of the question as to the right of possession, either before or after a sale.

      An administrator takes no kind of an estate, title or interest in the realty of his intestate. At most, he takes but a power of sale upon a deficiency of personal assets. Ryan v. Duncan, 88 Ill. 146; Le Moyne v. Quimby, 70 id. 399; Stone v. Wood, 16 id. 177; Smith v. McConnell, 17 id. 135.
    It is a general and well settled rule that the doctrine of caveat emptor applies to all judicial sales, under which falls an administrator’s sale of lands to pay debts. The person who buys at such sale must examine for himself. Tilley v. Bridges, 105 Ill. 339.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It appears from the record before us that Charles W. Ricketson died testate October 4, 1866, leaving Polly, his widow, and Lizzie, his only child, sole devisees under his will. At the time of his death he was the owner, subject to a vendor’s lien for a part of the unpaid purchase money, of the undivided half of the west half of section 3, town 38, range 13, and also of the undivided half of so much of the east half of the same section as lies south of the canal. Henry M. Shepard having been appointed administrator de bonis non with the will annexed, on the 17th of June, 1870, filed in the circuit court of Cook county a petition to sell the testator’s interest in the above mentioned lands, or so much thereof as might be necessary to pay the debts of the deceased. The widow, daughter, and appellee William Scully, then and now a tenant in possession, were made parties to the petition. The widow and daughter answered, admitting the allegations of the petition, but alleging they had, subsequently to the filing thereof, conveyed their interest in the premises to appellee John Y. Le Moyne. Scully entered his appearance, and consented that the order of sale might be granted, which was accordingly done on the 21st of June, 1870. In the following month, proceedings under the petition were enjoined by Benjamin F. Quimby. Pending the injunction, to-wit, on the 9th of October, 1871, the record of the proceedings in both these suits was destroyed by fire. The record of the proceedings under the petition was restored on the 15th of May, 1875, and the premises,' after various suits and protracted litigation, an account of which will be found in Harding v. Shepard et al. 107 Ill. 264, were finally sold on the 6th of March, 1884, under the order of sale above stated, several parcels of which were purchased by the appellant, George F. Harding, and the residue by George B. Carpenter, who subsequently assigned his bid to Le Moyne, and the administrator’s deed was accordingly made to him instead of Carpenter, for the part purchased by the latter. Five separate deeds, bearing the same date of sale, were prepared and executed by Shepard to Harding for the parcels purchased by him, the purchases amounting in the aggregate to $55,000, which was duly paid by Harding. On the 13th of the same month the court, upon a formal application for that purpose, of which all parties in interest had notice, approved the report of sale and the deeds executed to the purchasers. The cause seems to have been transferred from the circuit to the Superior Court, as the proceedings last above mentioned were had in the latter court. On the 26th of May following, the appellant filed in the Superior Court of Cook county a petition, entitled “Henry M. Shepard, administrator 'de bonis non of Charles W. Bicketson, deceased, against Lizzie W. B. Allen and others, ” setting up his purchases at the administrator’s sale, and the conveyances by the administrator to him, as above stated; that Le Moyne and Scully were in possession of the land, and had been since the sale; that although petitioner had demanded possession of the premises, the defendants refused to surrender the same. The petition concludes with a prayer that the court order the defendants to deliver up possession of the premises so purchased by him, to the petitioner. Scully, protesting the court had no power or jurisdiction to make such order, answered that “he was in possession of the section under a lease from Le Moyne for an undivided half, and from Carpenter for the other half; that Le Moyne and Carpenter had good titles to said premises, and the court had no power to try the validity or the right of possession of defendants, and prayed the rule to be discharged.” Le Moyne, without waiving objection to the jurisdiction, and insisting the court had no power to enter the rule, says that he is the owner of the undivided half of said section, and acquired the equitable title more than ten years ago; that the trustees of the canal, in whom was the title, conveyed to him on November 10, 1883; that he has leased to William Scully said undivided half of the west half, and to Dennis Doran an undivided half of the east half of the section. The court, upon the hearing, entered an order denying the petition, which, on appeal, was affirmed by the Appellate Court for the First District. By the present appeal the judgment of affirmance is now before us for review.

In addition to what has already been stated, it is expressly charged in the petition “that Le Moyne and Scully, colluding with one George B. Carpenter, who claims to have a tax deed, set up that Scully has attorned to Carpenter, and delivered possession to Carpenter, and Scully has taken a lease from him. ” It is manifest from the answers, as well as from what appears upon the face of the petition itself, 'that there are now existing unsettled conflicting claims between appellant and the defendants in the petition,- respecting the property in controversy, and we fail to find anything in the statute under which the proceeding was had, to authorize the Superior or circuit court to investigate, settle or determine these conflicting unsettled titles or claims. The court, in cases of this kind, acts under a limited statutory authority, and its jurisdiction is not to be extended, by implication, beyond what is necessary to give effect to the objects and purposes of the legislature in adopting the act. The power of the .court to adjudicate in any case is necessarily limited in a large degree by the nature and extent of the rights sought to be enforced. Section 1 of the act of 1857, under which the order of sale was obtained, provides, “that when it can be ascertained that the personal estate of any testator or intestate is insufficient to pay the just claims against his or her estate, and there shall be any real estate to which such testator or intestate had claim or title, and the executor or administrator has made a just and true account of the personal estate and debts to the county court having jurisdiction thereof, such real estate, or such portion as may be necessary to satisfy the indebtedness of such testator or intestate, and the expenses of administration, may be sold in the manner herein provided. ” This section, it will be perceived, enumerates in express terms the jurisdictional facts which must .exist before any right or authority whatever is conferred upon the personal representative of the deceased to make an application at all for an order of sale, and these facts must appear upon the face "of the petition which is authorized to be filed by the second section of the act, and unless they do so appear the court has no power or authority to make the order. The widow, heirs and devisees of the deceased, and the guardians of minors, if any, together with the occupants of the premises, are required to be made parties, and others interested in the estate may appear, if they see proper, and make themselves parties to the proceeding. For what purpose are these persons made or permitted to become parties to the proceeding ? " Surely not to settle conflicting titles to the property, for, so far as this proceeding is concerned, it does not matter whether the deceased had the better title or not, nor, indeed, whether he had any title at all. For the purposes of an application of this kind it is sufficient that the deceased had a bona fide claim to the land. The statute does not, in express terms, require the claim to be bona fide, but that, perhaps, would be implied. The object of making the parties named in the statute, defendants, is clearly for the purpose of enabling them to see that no injustice is done the estate or those having claims against it, and that the requirements of the statute are complied with. By the 7th section it is provided the procedure upon appearance is to be as in chancery. If, therefore, the petition fails to state all the facts necessary to give the court jurisdiction, a demurrer would be proper, or the defendants might rely on a motion to set the proceeding aside, or treat it as a mere nullity. If the petition is good on its face, but in fact is untrue, an answer will be necessary. The answer may be a simple traverse of the facts alleged in the petition, or it may, if the case warrants, set up any special circumstances which go to show that the debts or claims for the payment of which the land is sought to be sold, are not tona fide or legally binding on the estate. Defences of the character mentioned are alone contemplated by the statute. If there were any doubt on this subject it is certainly removed by reference to the provisions of the 8th section. After stating that, upon the hearing, it shall be the duty of the court to hear and examine the allegations and proofs of the parties, etc., the section then proceeds : “And if, upon due examination, the court shall ascertain that the executor or administrator has made a just and true account of the condition of said estate, and that the personal estate of the testator or intestate is not sufficient for the payment of the debts against such estate, the said court shall find, as nearly as can be, the amount of the deficiency, and how much, and if a part, what portion of the real estate described in the petition it will be necessary to sell to pay such deficiency, with the expenses of administration then due or to accrue, and make a decree for the sale thereof. ”

It is clear, from these several provisions of the statute, that nothing could have been farther from the intention of the legislature than that in a proceeding of this kind there should be any inquiry into or attempted settlement of conflicting claims to the property sought to be sold. If the paramount owner should happen to be joined as a defendant to the proceeding, it would doubtless be his duty to assert his rights to the property in his answer,—not for the purpose, however, of forming an issue of the kind to be tried in that proceeding, but for the purpose of giving notice of his rights, to prevent an estoppel. It is a principle of general application that where the owner of property, whether real or personal, sees another having no right, or a limited right, thereto, about to sell it absolutely to an innocent purchaser, it is his duty to speak, otherwise he will be thereafter estopped from setting up his title against such purchaser, or one claiming through him.

As the power of the court to adjudicate in a particular case is limited by. the nature and extent of the right sought to be enforced, particularly when exercising a mere statutory jurisdiction, as is the case here, it is important to note with particularity just what rights the administrator has in respect to the real estate of his intestate. It is clear, under the repeated decisions of this court, as well as from a general unbroken current of authority on the subject, that he takes no -interest in or to the realty. In no event can he take anything more than a mere power, and in the absence of an insufficiency of personal assets to pay the debts of his intestate, he has no more to do with it than a stranger having no connection whatever with the estate. And even when such insufficiency in the personal assets exists, he has, as just remarked, but a mere power to sell for the payment of debts, and this right can only be enforced through the instrumentality, of some court" specially authorized to do so. Whether this power is conferred on a circuit, probate or county court, makes no difference. The power and jurisdiction to enforce and give effect to the right are the same in either case. As such right can only be enforced through the instrumentality of some court clothed with special authority for that purpose, the act conferring it must be so construed as..to give full force and effect to the right. Whatever, therefore, is necessary to effectuate the sale of the “title or claim” which the deceased had to the land sought to be sold, the court may lawfully do, but it must act on the title or claim .as it finds it. The right of the administrator does not extend to the removing of clouds upon or obstructions standing in the way of the title, and without such right the court can not apply a remedy, for every remedy which the law affords must necessarily be responsive to some legal right. What, then, may the court properly do where a case is sufficiently made out under the statute ? Evidently the court must find the amount of the indebtedness, order 'the sale, fix its terms, and prescribe the manner of conducting it, in so far as this is not done by the statute itself, and when made, the court must either approve or set it aside. As a necessary incident of the power to make the sale, the court must also determine whatever questions may arise in respect to the payment of the purchase money, or the sufficiency of the conveyance, and, in short, all questions relating to the sale or transfer of the land. In respect to the land itself, the court is required to find a single simple fact, namely, that the deceased had title or a claim to it. That others may have claims to the same land, whether before the court or not, is a matter of no consequence, for the court is not authorized to investigate or pass upon them. The lien of the creditors of the deceased upon the land for the payment of their claims, after the personal assets have been exhausted, is coextensive with the title or claim of the deceased, whether it be good or bad, and the heirs or devisees take subject to this lien. It follows, therefore, that a valid sale by the administrator or executor would cut off whatever title or claim they had as heirs or devisees, but a claim founded upon an independent source of title would not be affected by such sale.

What we have said thus far, is merely preliminary to the main question in the case, namely, whether it is proper for the court, in a proceeding by an administrator to sell land, to enter an order directing the tenants in possession to surrender possession of the premises to the purchaser, for if it is not, of course the present petition can not be maintained. We have dwelt upon the nature and extent of the jurisdiction of the court in this class of cases to an apparently unwarrantable length, for the reason we think they have an important bearing upon the controlling question in the case, as just stated. In support of the general views here expressed we refer to the following authorities: Choteau v. Jones, 11 Ill. 300; Smith v. McConnell, 17 id. 135; Bennett v. Whitman, 22 id. 448; Myer v. McDougal, 47 id. 278; Gridley v. Watson, 53 id. 186; Shoemate v. Lockridge, id. 503; LeMoyne v. Quimby, 70 id. 399 ; Cutter v. Thompson, 51 id. 531; Ryan v. Duncan, 88 id. 144.

We fully recognize the rule that in controversies before courts of equity, when exercising their ordinary and general chancery jurisdiction, in which the right to possession of real property is involved, or liens thereon are to be enforced, and in which all parties directly interested in the result of the litigation are required to be made parties, either as plaintiffs or defendants, it is not only proper, but it is the duty of the court, upon the termination of the suit, to do complete justice by putting the successful claimant into possession of the premises; or, where th,e circumstances are such as to require a sale of the property, as in the case of a foreclosure of a mortgage, enforcement of a vendor’s lien, and the like, the court should extend the same relief to a purchaser under the decree. (Aldrich v. Sharp, 3 Scam. 261; O’Brian v. Fry, 82 Ill. 87; Kershaw v. Thompson, 4 Johns. Ch. 609.) But this general rule is not without its exception's. Thus, in 2 Jones on Mortgages, sec. 1664, after having recognized the general rule, and shown that it applies to parties who enter pending the suit, the author adds: “Though one enter pending the suit, if he did not enter under a party to the suit, or under any one who had derived title to the premises, or had gone into possession of them under a party pending the suit, he can not be turned out of possession under the decree,—as, for instance, if he purchased after the commencement of the suit, at a sale under a judgment against the mortgagor recovered before that time. ” In the following section it is added: “If the person in possession shows a right paramount to the mortgage, of course the court will not attempt to decide any question of legal title, and the possession must then be sought by proceedings at law.

In the case before us it affirmatively appears the premises have been sold for taxes, and that a tax deed for the same has been executed by the proper officer, through which the defendants in the petition now claim. If the tax proceedings resulting in the tax- deed were regular, of course they would divest and cut off appellant’s title, however good it may have been. But it is answered the tax proceedings were not regular, but wholly defective and void, and that appellant offered to show this fact; yet it is clear this would have involved a judicial investigation, which the court had no power to make. Even had the court been exercising its general chancery jurisdiction, it would not, according to the authority just cited, have undertaken to settle the question of mere legal title, but would have remitted the parties to a court of law, which is more appropriate for the trial of legal titles.

But outside of this consideration, for reasons already stated) we do not think that a court, when exercising this special statutory jurisdiction, has any right or authority to enter an order of the character prayed for in the petition. In many cases that might he suggested it would result in great injustice. To the suggestion that in order to avoid such results the court should go on and consider all conflicting claims and titles, the answer is, as already indicated, the statute under which the court acts, confers no authority to do so. In addition to this, it is apparent that if such claims were permitted to be litigated in a proceeding of this kind, it would necessarily be productive of great inconvenience and delays in the settlement of estates, whereby the costs and expenses would be largely increased, and- the creditors deprived of their just dues. The very reverse of this state of things is certainly contemplated by our entire probate system. A wise and sound policy, as well as common justice to creditors, clearly demands that the estates of dead persons should be wound up with all reasonable dispatch. This the legislature has accomplished, so far as it can be done, by favorable legislation looking to that end, and in giving effect to the statute in question no implications should be indulged in that would lead to a contrary result. Borer, in his work on Judicial Sales, after recognizing the power and practice of courts of chancery to make orders of the kind sought to be obtained by this proceeding, says:' “But these summary methods of putting a purchaser at a judicial sale into possession, or of forcing him to comply with his purchase, are not understood to be within the powers of a mere probate court making sales of a decedent’s lands under the statute. The purchaser at such sales will be left to his remedy at law, by action of ejectment, or whatever legal remedy by action stands in lieu thereof, in case, as in some of the States, the action of ejectment be abolished.” (Sec. 167.) 'This, we think, is the correct rule, and it fully supports what we have already said on the subject.

The judgment of the Appellate Court being in accord with this view of the matter, it will be affirmed.

Judgment affirmed.