author: Mr. Chibe Justice Scott

text:
    Wabash, St. Louis and Pacific Railway Company v. Henry J. Rector.

      Filed at Springfield September 28, 1882.

    1. Appeal—reviewing facts. On an appeal to this court from the Appellate Court, in an action to recover damages for a personal injury from negligence or willful act of the defendant’s servant, the facts will not be examined any further than may be necessary to an understanding of questions of law raised,—as, for instance, the propriety of instructions based upon the evidence. The finding of the facts by the Appellate Court, in such case, is conclusive,
    2. Cabbieb op passengebs—when the relation exists. The purchase of a ticket by a person on a company’s railway, between two stations, creates the relation of carrier and passenger between them, with all the duties the law imposes on each.
    3. Same—relative duties of railroad carrier and passengers as to getting off and on cars. It is the duty of every railroad company to cause its passenger trains to stop at each station advertised as a place for receiving and discharging passengers, a sufficient length of time to receive and let off passengers with safety, and to provide a reasonably safe way of reaching and departing from their cars at all usual stations, and it is the duty of passengers to exercise ordinary care for their safety in attempting to take passage on railway cars.
    4. No degree of carelessness or negligence on the part of a passenger will excuse a wanton and malicious attack on him by the conductor or other servant of the railroad company. No matter how negligent a passenger may be for his safety, that will not warrant the infliction of a willful injury by a railroad employe.
    5. Master and servant—liability of master for acts of servants. In an action for damages against a railway company, the proof showed that the plaintiff, having a ticket, delayed getting upon the train until it had started and got under considerable speed, when he caught hold of the railing at the end of the rear car and stepped upon the bottom step, when he was swung round to the rear of the car, with his back toward it, and in an effort to recover himself swung back, and with his right hand took hold of the other guard rail, and while in that position, it was claimed he was wantonly and maliciously assaulted by the conductor. The court instructed the jury
    ' that if they believed, from the evidence, that plaintiff, under all the circumstances, in attempting to board the1 train acted as a reasonably prudent man would have done under like circumstances, without negligence, and used ordinary care to prevent accident, and that injuries were sustained by him resulting from the willful or wantonly malicious conduct of the servant of defendant acting in the line of his duty, the defendant was liable for such injuries: Held, that while under some circumstances the principles of the instruction might be applicable, it was calculated to mislead the jury under the facts of the case tried.
    6. Exemplary damages—not given as a matter of right. Where an injury is wantonly and willfully inflicted, the jury may, in addition to the actual damages sustained, visit upon the wrong-doer vindictive or punitive damages, by way of punishment for the wrongful act, but the party is not “entitled” to such damages as a matter of right, and it is error to so instruct, in any case. Whether the party may have such damages, rests largely in the discretion of the jury, under all the circumstances, and they should be left free to exercise their judgment in this respect.
    7. Instructions—must not ignore important fact beaming on party’s rights. An instruction is vicious which ignores an important fact intimately connected with and affecting the plaintiff’s right, or the extent of the defendant’s liability, which the evidence tends to prove. Thus, in an action against a railroad company to recover for a permanent personal injury to the plaintiff, including one to his spine, claimed to have resulted from an unjustifiable assault upon him by the conductor as he was attempting to board a car while in motion, the proof tending strongly to show that the principal injury, the one to his spine, was caused by a severe strain or wrenching of his body in attempting to get on the train, an instruction which ignores the fact that such injury might have resulted from his own imprudent act, should not be given. It should exclude from the jury all idea that there could be any recovery for injuries sustained by the imprudent attempt to board the car while in motion.
    8. Same—error when not cured by others. It is not sufficient, in such a case, that some of the defendant’s instructions may have stated the law correctly on such branch of the case. The plaintiff’s instructions should have done the same thing, so that the jury might not be misled by considering one set or the other of the charges given.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Fulton county; the Hon. S. P. Shops, Judge, presiding.
    Mr. F. T. Hughes, for the appellant:
    The facts amount to such culpable and willful negligence on the part of the plaintiff, as will preclude a recovery on account- of contributory negligence. The statute .makes it a criminal offence for any person to climb, jump, cling to or attach himself to a car in motion. Field on Damages, 167; Chicago and Northwestern Ry. Co. v. Scates, 90 Ill. 586; Railroad Co. v. Aspell, 23 Pa. St. 147; Nichols v. Railway Co. 106 Mass. 463; Harvey v. Railway Co. 116 id. 269 ; Illinois Central R. R. Co. v. Able, 59 Ill. 131 ; Ohio and Mississippi R. R. Co. v. Schiebe, 44 id. 460; Illinois Central R. R. Co. v. Slatten, 54 id. 133.
    The appellee was doing an unlawful act. His injury resulted from that act, and if so, he can not recover. Wood on Master and Servant, see. 319; Harris v. Hatfield, 71 Ill. 310; Bosworth v. Swanson, 10 Metc. 363; Heland v. Lowell, 3 Allen, 408; Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510.
    If plaintiff was injured by the servant of appellant, it was outside of the employment of the servant. Middleton v. Fowler, Salk. 282; Roe v. Birkenhead R. R. Co. 7 Eng. L. & Eq. 546; Story on Agency, sec. 456; Angelí on Carriers, sec. 604; Hilliard .on Torts, 432; Cooley on Torts, 533; Wood’s Master and Servant, 555; 2 Kent’s Commentaries, 260; Thompson on Negligence, 885; Pierce on Railroads, 279; Bryant v. Rich, 106 Mass. 180 ; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110.
    The court erred. in giving the tenth instruction, directing the jury to assess vindictive damages. McKinley v. Chicago and Northwestern Ry. Co. 44 Iowa, 321; Crocker v. Chicago and Northwestern Ry. Co. 36 Wis. 657; Pierce on Railroads, 805, 306; Field on Damages, 96; McKeen v. Citizens’ Ry. Co. 40 Mo. 88; Goddard v. Grand Trunk R. R. Co. 57 Me. 202.
    To hold the principal, who has done or authorized no wrong', liable for exemplary damages, is against the general principles of the law of exemplary damages. Wood’s Master and Servant, 598; Cooley on Torts, 127; Shearman & Redfield on Negligence, sec. 601; Caldwell v. New Jersey Steamboat Co. 47 N. Y. 282; Hagan v. Providence R. R. Co. 3 R. I. 88; Turner v. North B. R. R. Co. 34 Cal. 594; Ken. and G. R. R. Co. v. Dills, 4 Bush, 593.
    For all such acts as are outside the employment, and not ratified, only actual damages can be allowed. Crocker v. Chicago and Northwestern Ry. Co. 36 Wis. 657; Chicago and Rock Island R. R. Co. v. McKean, 40 Ill. 218.
    Messrs. Gray & Waggoner, and Mr. L. W. James, for the appellee:
    One who procures a ticket for a passage on the company’s cars, is to be regarded as a passenger from the time he purchases the same, and it. is the duty of the company to provide him a safe passage to his seat in the cars. Bédfield "on Carriers, 269, 352.
    To all legal intent and purpose the conductor in charge of a train is, for the time being at least, the company itself, and said company is fully responsible for all his acts and doings within the scope of his power, express or implied. St. Louis, Alton and Chicago Ry. Co. v. Dolby, 19 Ill. 353;
      Toledo, Wabash and Western Ry. Co. v. Harmon, 47 id. 299; Illinois Central R. R. Co. v. Reed, 37 id. 508; Northwestern R. R. Co. v. Hack, 66 id. 239; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 63 id. 157; Noble v. Cunningham, 74 id. 51; Chicago, Burlington and Quincy R. R. Co. v. Bryan, 90 id. 126; Chicago and Northwestern R. R. Co. v. Moronda, 93 id. 303; Goddard v. G. T. R. R. Co. 57 Maine, 202; A. and G. W. R. R. Co. v. Dunn, 19 Ohio, 162; Hanson v. N. A. R. R. Co. 57 Maine, 84; 1 American Railway Cases, Smith & Bates’ notes, 127; Sleeth v. Wilson, 9 Carr. & Payne, 607; Bryant v. Rich, 106 Mass. 180; Coleman v. N. Y. and N. H. R. R. Co. 106 id. 160; Brokaw v. N. J. R. R. Co. 3 Vroom, (N. J.) 328; Kline v. C. P. R. R. Co. 37 Cal. 327; Passenger R. R. Co. v. Young, 21 Ohio St. 518; Sherley v. Billings, 8 Bush, 147.
    The act of the agent of appellant was wanton, willful and malicious, and highly oppressive, and in such cases exemplary damages should be given. Illinois Central R. R. Co. v. Parks, 88 Ill. 375; Chicago, Burlington and Quincy R. R. Co. v. Bogue, 1 Bradw. 473; Same v. Bryan, 90 Ill. 126; Hawk v. Ridgeway, 33 id. 473; City of Chicago v. Marlin, 49 id. 245; Illinois Central R. R. Co. v. Hammer, 72 id. 348; Toledo, Peoria and Warsaw Ry. Co. v. Patterson, 63 id. 304; Atlantic and Great Western R. R. Co. v. Dunn, 19 Ohio St. 162; Pittsburg, A. and M. R. R. Co. v. Donahue, 70 Pa. St. 119.
   Mr. Chibe Justice Scott

delivered the opinion of the Court:

This auction was brought by Henry J. Rector, against the Wabash, St. Louis and Pacific Railway Company, and Theodore F. Kent, to recover for personal injuries. No service of process was had on Kent, and the action proceeded against the railway company alone. The facts necessary to an understanding of the questions of law to be considered may be briefly stated. Plaintiff desired to become a passenger on defendant’s cars from Smithfield to Canton, and for that purpose purchased a ticket at the former station that would entitle him to become a passenger on defendant’s road. It appears plaintiff delayed attempting to enter the ears until after the train was in motion, although plenty of time was allowed for that purpose, had he desired to do so. By the time he did attempt to get aboard, the train had acquired considerable speed. As the end of' the rear car came opposite plaintiff he caught hold of the rear guard-rail and stepped with one or both feet on the bottom step, and swung around to the rear of the car. The evidence tends to show a collision occurred between plaintiff and the conductor, who was attempting to board the train at the same time and at the same platform. In an effort to recover himself plaintiff swung back, and with his right hand took hold on the other guard rail, and it was while he was in that position, it is alleged he was wantonly and willfully assaulted by the conductor. The injuries sustained by plaintiff were very serious indeed, and no doubt of a permanent character. On the trial in the circuit court the jury returned a verdict for plaintiff in the sum of $14,000. After a remittitur of $4000 was entered, the court overruled defendant’s motion for a new trial, and rendered judgment on the verdict for $10,000. That judgment was affirmed in the Appellate Court, and defendant brings the case to this court on appeal.

With the facts of the case, further than they may be necessary to an understanding of the questions of law raised, this court will not concern itself. They have been ascertained by the Appellate Court, whence this cause comes, and that finding is, of course, under the statute, conclusive on this court. Some further reference to the facts may be necessary to render the legal questions discussed intelligible in their application to the case. As has been seen, plaintiff purchased a ticket on defendant’s railway between two stations, and that fact created the relation of carrier and passenger,- and the law imposed duties arising out of that relation, both on the carrier and the passenger. It is the duty of every railroad company to cahse its- passenger trains to stop at each station advertised as a place for receiving and discharging passengers, a sufficient length of time to receive and let off passengers with safety, and to provide a reasonably safe way of reaching and departing from their cars at all usual stations, and it is the duty of passengers to exercise ordinary care for their safety on attempting to take passage on railway cars. These respective duties, as well as all others that tend to the security of passengers, neither party ought to omit.

No complaint is made in this ease that defendant did not cause its train to stop at the station a sufficient length of time to allow all passengers that might wish to do so to get off or on its cars with safety. It is an admitted fact, plaintiff, although holding a ticket entitling him to passage, did not attempt to get aboard defendant’s cars until the same began to move away from the station. After the cars were in motion, and had acquired considerable speed, plaintiff undertook to get on the cars by catching hold of the railing of the rear car, and while he was holding to it with both hands as well as he could, he was injured by a violent assault made by the conductor, and was otherwise injured. It is at this point in the ease the first serious error occurs in the ■ action of the trial court in giving instructions for plaintiff. The first of the series is as follows: “If the jury believe, from the evidence, that the plaintiff, under all the circumstances, in attempting to board defendant’s train, if he so attempted, acted as a reasonably prudent person would have done under like circumstances, without negligence, and used ordinary care to prevent accident, and that injuries were sustained by the plaintiff resulting from the willful or wantonly malicious conduct of the servant of the defendant acting in the line of his duties, the defendant would be liable for such injuries. ” Under some circumstances the principle of this instruction might he applicable, but it was calculated to mislead the jury under the admitted facts of this case. While this charge must be condemned jn its application to the- facts of this case, it must not be understood that any carelessness or degree of negligence on the part of a passenger would excuse a wanton and malicious attack on him by the conductor or other servant of the company. No matter how negligent a passenger may be for his safety, that would not warrant the infliction of a willful injury by a railroad employé.

The tenth charge of the series does not state a correct principle of law, and would be faulty in its .application to any state of facts. It is as follows: “The court instructs the jury that if they believe, from the evidence in this case, that the plaintiff in this case, having a lawful -right to ride on the defendant’s train, was, at and within the county of Fulton, and State of Illinois, wantonly, willfully and maliciously expelled from said train by the conductor thereof while in the exercise of his lawful or implied.duty about the business of the railroad company, as the servant and agent of defendant, and that by reason of such act the said plaintiff then and there sustained actual, serious and permanent injury and damage, then the plaintiff is not limited in his recovery to such actual damages sustained, but the plaintiff is entitled, in addition thereto, to such additional damages as the jury may in their judgment assess by way of punishment for such act. ” The vice of this instruction consists chiefly in the fact it states the rule as to vindictive or punitive damages broader than the law will warrant. Where an injury is wantonly and willfully inflicted, the jury may, in addition to the actual damages sustained, visit upon the wrong-doer vinSP5"' dictive or punitive damages by way of punishment for such willful injury, but it is not understood the injured party is “entitled” to such damages as a matter of right, and an instruction that tells the jury, as a matter of law, the injured party is “entitled” to such damages, goes too far, and is for that reason vicious. A party may recover the' actual damages inflicted, by the wrong-doer, but whether he may have damages in addition thereto, rests largely in the discretion, of the jury, under the circumstances, and they should be left free to exercise their judgments in that respect. It was prejudicial error to tell the jury, as the court did in this-charge, that plaintiff was “entitled” to such damages above the actual damages sustained. It may be it was a case-where the jury might give exemplary damages, but that was' a question the court could not pass upon without invading the province of the jury. ..

But there is a vice common to most of the instructions given for plaintiff that must have been hurtful to the defence. Many of them ignore the fact the evidence tends to establish, viz., that plaintiff might have been injured otherwise than by the violence of the conductor. Whatever injuries he may' have suffered other than from the assault of the conductor, were attributable to his own negligence, and for which defendant was in no way responsible. That which most seriously afflicts plaintiff, is some kind of an injury to the spine, and all the physicians say the injury of which he complained most might have been produced by a strain or wrenching of the body. One of them says it might “result from a very bad strain or twist of the body, ” and another, “that it might be produced by a very powerful twist or wrench of the body. ” The description given by plaintiff of the. transaction, shows he must have sustained a very severe strain or wrenching of the body in the attempt to get on the train when in motion. His own account is, that when he caught hold of the railing-he “swung clear,” and had great difficulty in regaining his balance. A witness near at hand, and who saw all that, took ■place, says plaintiff “stepped on the car and swung around with his back to the back end of the railing.” All the witnesses agree the train had acquired considerable speed before' plaintiff attempted to get aboard of it, and there must, of necessity, have been a strain more or less severe to the body. Whether plaintiff was injured in that way, was a question that ought to have been more definitely submitted to the jury. The instructions should have excluded from the jury all idea that there could be any recovery for injuries sustained by plaintiff on account of an imprudent attempt to board the train when in motion, other than that produced by the wrongful conduct of defendant’s servants in charge of the train. That the instructions did not do, and the error in this regard may account in some measure for the unusually large verdict rendered. It is not sufficient in a ease of this kind that sonde of defendant’s instructions may have stated the law correctly on this branch of the case. Plaintiff’s instructions should have done the same thing, so that the jury could not have been misled by considering one set or the other of the charges given.

There may be slight errors in other instructions, but they have not been deemed to be of sufficient importance to be remarked upon. On another trial the circuit court will make the instructions conform, as near as may be, to the views expressed in this opinion.

The judgment of the Appellate Court will be reversed, and the cause remanded, with directions to reverse the judgment of the circuit court, and remand the cause for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Leo Eckert v. J. N. Gridley et al.

      Filed at Springfield September 28, 1882.

    ■Voluntary settlement upon a cMld—what constitutes—can not be revoked. Where a person bids off property at an administrator’s sale in his own name, and pays for it with his own means, and the deed, by his consent, is made to him and his son, then twenty-four years old, and living with him, the transaction in making the deed will amount to a voluntary settlement of one-half of the property by the father upon the son, beyond the power of the former afterward to retract.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.
    On April 25, 1873, there was an administrator’s sale of lots 2 and 3, in block 48, in Beardstown, for $364, and a deed, therefor executed to Leo. Eckert and Leopold Eckert, father and son. Leopold Eckert died in 1877, and in December, 1880, the administrator of his estate filed a petition in the Cass county court for leave to sell the undivided half interest of the decedent in said lots, for the payment of debts of the estate. Thereupon Leo. Eckert filed his bill in chancery in this case for relief, the bill alleging, that the purchase of the lots, at the administrator’s sale above named, was made by the complainant; that he paid the purchase money, and received what he supposed to be a deed conveying the lots to himself; that the complainant and his wife are natives of Germany, and are both ignorant of the English language; that at the time of making such purchase their son, Leopold, was living at home, and usually acted as complainant’s agent in transactions of this character; that after said sale Leopold and the administrator came to him, and Leopold stated that the deed was “all right,” and ready to be delivered, and that complainant then instructed his wife to pay the administrator the first payment, which she did, out of his money, and that he then executed and delivered to the administrator his two notes for the deferred payments, and that they were paid at maturity, by his wife, out of his funds; that on December 8, 1880, he discovered for the first time that the deed for said lots’ had been made to his son, Leopold, and himself, as tenants in common; that the deed was so made without complainant’s knowledge or consent; that Leopold paid no part of the purchase money, and had no interest whatever in the lots, and that in all that Leopold did in and about said purchase, he was acting as the agent of complainant. On final hearing the circuit court dismissed the bill, and the decree was affirmed on appeal to the Appellate Court for the Third District.
    Mr. E. W. Mills, for the plaintiff in error.
    Messrs. Ketcham & Gridley, for the defendants in error.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The proof shows that Mrs. Eckert, the wife of Leo. Eckert, bid off the lots at the administrator’s sale of them, and gave the name of Leo. Eckert as the purchaser, and that she paid the purchase money from what the witnesses supposed to be her and her husband’s funds. The taxes on the lots, after the purchase, were paid by Leo., and whatever of rents were received from the property appear to have been paid to him and his wife. There was evidence of statements by Leopold, on several occasions, that he had no property, and that he had spoken of the lots as his mother’s property,—that she had bought them. In opposition to this, it appeared that a suit was brought against Leopold for a breach of promise of marriage, wherein a large judgment was recovered against him, to avoid payment of which might have furnished a motive for his holding out the appearance that he had no property. This Eckert family, as appears, lived and worked together. Leopold, at the time of the purchase, was twenty-four years of age, and then, and afterwards until his death, lived with his parents. After the time of his marriage, which was about six months previous to his death, he and his wife occupied the house on the lots, taking their meals with the parents, at the house of the latter, on premises adjoining. The old lady appears to have been, to quite an extent, the banker of the family, for Leopold as well as for her husband, as shown in instances of her paying debts of Leopold for him.

The administrator who made the sale, after stating that' Mrs. Eckert bid off the lots in the name of Leo. Eckert, says that he does not knoiv why the deed was made to Leo. and Leopold Eckert,—that he left it to them and Mr. Arenz to make the deed. Mr. Arenz was a German, and he acted as the attorney for the administrator in the settlement of the estate which the latter represented. Mr. Arenz testifies that he.wrote the deed for the lots at the instance of the parties— Leopold and Leo. Eckert; that first Leopold Eckert, a day or two after the sale, came to his office and wanted him to make the deed to his father and himself, giving as a reason that he was in partnership with his father,—that he was the only son, and they were doing business together; that witness told him that could not be done unless his father was present; that the father, Leo. Eckert, was present when the deed was executed, and at that time knew how the deed was made. He states that he conversed with Leo. Eckert in the German language; that witness prepared the administrator’s report of the sale to the county court, either the next day after the sale or the day following, the report stating the lots to have been sold and conveyed to Leopold Eckert and Leo. Eckert. Leo. Eckert says that he did not direct Mr. Arenz to make the deed; that he did not consent to it; that the deed was read to him in English; that he did not understand the language or what the deed contained, and did not know at the time that it had been made to Leopold and himself.

The property having'been bid off in the name of Leo. Eckert, and he making the payment, it is unlikely that the administrator would have presumed to insert in the deed the name of Leopold Eckert as a co-grantee, without the consent of Leo. Eckert. The situation of the parties affords a reasonable explanation why Leopold should have been admitted to a share in the property.

We are of opinion the circtiit court was well justified in accepting Mr. Arena’s version of the affair as the true one. The deed then would appear to have been executed in its present form with the consent of Leo. Eckert, and if so, then, even if Leo. Eckert did bid off the lots and pay for them himself, the transaction in the making of the deed would amount to a voluntary settlement of one-half of the property upon Leopold, which it would be beyond the power of Leo. Eckert afterward to retract.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Martha E. Webber v. George W. Curtiss et al.

      Filed at Springfield September 28,1882.

    1. Sake under trust deed—of the good faith required of the trustee— and proper notice of the sale. The trustee in a deed oí trust is the agent of the grantor and his assigns, as well as of the creditor thereby secured, and it is his duty to protect the interests of all parties by acting in good faith in conducting the sale, and in seeing that reasonable publicity is given of the time, place, and terms of sale.
    2. If the trustee acts honestly in selecting the medium of publication, his act can not be questioned, and the mere fact that others may differ from him in judgment in that regard, does not necessarily tend to impeach his honesty. But if he acts from passion, prejudice, or from corrupt motives, he perverts his trust and exceeds his power, and binds none who are not prohibited from inquiring into his acts.
    3. A trustee, from improper motives, to prevent the owner from knowing of the sale and having an opportunity to redeem, and to prevent competition at the sale, advertised the land conveyed to him, for sale, under the power conferred upon him, in a newspaper having but a small circulation, and but eight subscribers in the township where the land was situate, and published at a place eighteen or twenty miles distant from the land, when there was published a weekly newspaper in the same town where he resided, and very near the land, and another in an adjoining town, also near the land, both having a large circulation and many subscribers in the town where the land was situated. The creditor resided in a distant State, and the debtors on the land. The sale was made without the knowledge of the grantor, and at a grossly inadequate price, to a partner of the trustee in the banking business, under such circumstances as to show that the trustee was interested in the purchase. The trustee, by his conduct, had led the grantor to suppose that no sale would be made for some time,—it was held, the sale should be set aside, and a redemption allowed as to such purchaser, and all others dealing with him for the property, with notice of th"e equities of the grantor.
    4. Same—of- personal notice to the grantor. Where, shortly before a sale of land under a power in a trust deed, the owner of the equity of redemption made a payment of over half the sum due on the note secured, and from negotiations with the trustee, as the agent of the non-resident creditor, for an extension of time on the balance due, and the conduct of the trustee, he was led to and did believe no sale would be made for some time thereafter, from which also the trustee must have known such owner was not expecting a present sale, and designed ultimately to redeem,—it was held, that it was the duty of the trustee to have given personal notice to the debtor of his intention to sell, before advertising the property, although the trust deed required no such notice.
    5. Although no personal notice is necessary to be given to the owner of the equity of redemption by the trustee in a deed of trust, of a sale under a power to be exercised on publication of notice in an ordinary case, this will not apply where the trustee, by his acquiescence in the conduct of such owner, or by his non-action, reasonably authorizes the belief that he will not sell without such personal notice. His position is such that he shall not affirmatively mislead, or stand by and knowingly permit those whose interests he represents to be misled, as to facts materially affecting their interests. In such case he should give personal notióe before acting.
    6. Possession—notice of occupant's equities. Where the owner of the equity of redemption is in the actual possession of land at the time of its sale under a deed of trust thereon, such possession will operate as notice to all the world of any equities in respect to such sale, which the occupant may hold.

      Appeal from the Circuit Court of Champaign county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. Wm. B. Webber, and Mr. S. F. White, for the appellant:
    A trustee will not be permitted to make a sale at an inadequate price. If he can not sell for a fair price, he should postpone the sale. Richards v. Holmes, 18 How. 141; Jackson v. Clark, 7 Johns. 217; Sayles v. Smith, 12 Wend. 57 ; Miller v. Hull, 4 Denio, 104; Johnson v. Eason, 3 Ired. Eq. 336.
    If he has a discretion as to when to post notices, he must act in good faith; and if he acts fraudulently, and posts them in remote places, the sale may be avoided, and he made personally responsible. Johnson v. Eason, supra; Rowan v. Lamb, 4 G. Green, 478. So when a notice is fraudulently advertised in a remote newspaper. Jencks v. Alexander, 11 Paige, 619; Singleton v. Scott, 11 Iowa, 589.
    The rule deduced from the authorities is, that proof of the slightest fraud or unfair conduct on the part of the trustee is sufficient to justify the interference of a court of equity, whenever it appears that the owner’s property has been sold at a very low price. 2 Perry on Trusts, 169; Longwith v. Butler, 3 Gilm. 32; Burr v. Borden, 61 Ill. 391; Hurd v. Case, 32 id. 45; Flint v. Lewis, 61 id. 299; Meacham v. Steele, 93 id. 146.
    Mrs. Webber’s possession was notice. Flint v. Lewis, 61 Ill. 299; Dyer v. Martin, 4 Scam. 146; White v. White, 89 Ill. 460; Mathison v. Prescott, 86 id. 493; Brown v. Gaffney, 28 id. 150; Riley v. Quigley, 50 id. 304; McDowell v. Lucas, 97 id. 489.
    Mr. Thomas F. Tipton, also for the appellant:
    The purchaser at the trustee’s sale is chargeable with notice of all the irregularities attending the sale, and their effect can not be evaded by him. Gunnell et al. v. Cockerill, 84 Ill. 319; Hamilton v. Lubukee, 51 id. 415.
    Schlorff, taking by quitclaim from such purchaser, is in no better pbsition. Brown v. Clides, 10 Pet. 211; Oliver v. Pratt, 3 How. 410.
    As to setting aside sales for inadequacy of price, counsel cited Meath v. Porter, 9 Heisk. 224; Cassidy v. Cook et al. 99 Ill. 389.
    Where a trustee sells at auction, he must make due advertisement, and give due notice to the parties interested. Johnson v. Eason et al. 3 Ired. 330.
    Courts of equity will scrupulously examine the conduct of persons acting in a fiduciary or trust capacity. Thomas v. Sloo, 15 Ill. 66; Morris v. Thomas, 17 id. 112; Atwood v. Caldwell, 12 id. 96; Story’s Eq. Jur. secs. 331-335; Moore et al. v. School Trustees, 19 Ill. 87.
    Mr. Francis M. Wright, and Mr. Homer W. Avers, for the appellees:
    The presumption is, that a person charged with a trust performs his duty, until the contrary appears; and where an act is open to two constructions, one consistent with innocence and fidelity to duty, .and the other the reverse, the former will be presumed. Munn v. Burges, 70 Ill. 604; Goodwin v. Mix, 38 id. 115; Bush v. Sherman, 80 id. 160.
    The notice published was such as was required by the trust deed, and there is no evidence of intent to defraud any one. St. Joseph Manf. Co. v. Daggett, 84 Ill. 559.
    No personal notice was required of the sale. Marston v. Brittenham, 76 Ill. 617.
    Schlorff and Ahrens had the right to rely upon the record as it was at the time of their purchase. Gibbon v. Hoag, 95 Ill. 45; McHaney v. Schenk, 88 id. 366; Gunnell v. Cockerill, 79 id. 79; Hamilton v. Lubukee, 51 id. 415; Cassell v. Ross, 33 id. 244: Reese v. Allen, 5 Gilm. 536.

      They must have had notice in fact of any irregularities in the sale, if any, otherwise they will be protected as innocent purchasers. Hosmer v. Campbell, 98 Ill. 580; Wylder v. Crane, 51 id. 490.
    Proof of notice should be made, and not left to inference. McHaney v. Schenk, 88 Ill. 357; Fairman v. Peck, 87 id. 156.
    A sale "vyill not be set aside for mere inadequacy of price. Watterman v. Spaulding, 51 Ill. 425; O’Callaghan v. Spaulding, 91 id. 228; Jenkins v. Pierce et al. 98 id. 646.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 15th of November, 1876, George G. Webber made a deed of trust of certain land to George W. Curtiss, as trustee, to secure the payment of his promissory note to Sarah Shields, and on the 1st day of March, 1879, he conveyed the same land to his wife, Martha E. Webber, subject to the deed of trust. The note matured on the 15th of November, 1879, and at that time, or shortly afterwards, he paid $2000 on the note. On the 5th of July, 1880, Curtiss conveyed the land, pursuant to what was claimed to have been a sale thereof, to Charles L. Burpee. On the '2d of September, 1880, Martha E. Webber tendered to Burpee the amount due upon the note, but he declined to receive it, and on the same day he conveyed the land to Frederick Schlorff. Schlorff afterwards mortgaged the land to Henry C. Ahrens. On the 4th of September, 1880, the bill in chancery in the present case was filed in the court below by Martha E. Webber, against Curtiss, Burpee, Schlorff and Ahrens, praying that the conveyances by Curtiss to Burpee, Burpee to Schlorff, and the mortgage by Schlorff to Ahrens, be set aside, and that she be allowed to redeem from the deed of trust. On hearing, the court below decreed that the bill be dismissed, and the present appeal is prosecuted from that decree.

The grounds of the relief sought are: Complainant had no notice, actual or constructive, of a sale of the land under the deed of trust. She was misled by an agreement with Curtiss, the trustee, to the effect that he would let the debt stand for a certain time, upon her making a designated payment, which she did make, and induced thereby to believe there would, until the expiration of that time, be no sale under the deed of trust. 1 The only notice given was by a publication in an obscure newspaper, published in a small village some eighteen or twenty miles distant from the land, and having but a small circulation, and but eight subscribers in the township in which the land is located. Complainant was not a subscriber for that paper, and no copy of the notice published was ever called to her attention. It is charged that papers having a large circulation, published near the land, were passed by, and the notice published in this paper, to prevent complainant .obtaining knowledge of it. It is also charged that the land was susceptible of division, and might, with advantage, have been sold in separate parcels, but that it. was sold en masse. And it is also charged that the price bid at the sale was grossly inadequate, etc.

We do not think any ground for setting aside the several conveyances, and letting the complainant in to redeem from the deed of trust, is shown because of any valid agreement to extend the time of the payment of the debt, nor because the land was sold en masse, nor because of the inadequacy of the sum bid for the property, taken singly; but we do think the notice of the sale was insufficient, and that the evidence in regard to those charges is competent as tending to show a-fraudulent intent in giving such notice. The defendants insist that the notice was ample, and fully authorized by the power in the deed of trust; and our first inquiry, therefore, must necessarily be, what authority, in this respect, does the trust deed confer upon the trustee.

One clause in the power is in these words: “First giving four weeks’ notice of the time and place of such sale, by advertisement in any of the weekly newspapers that may then he published in the said county of Champaign, and State of Illinois, in the English language.” The trustee is the agent of the grantor in the deed of trust, and his assigns, as well as of the creditor thereby secured, and it is his duty to protect his and their interests by acting in good faith in conducting the sale, and in seeing that reasonable publicity be given.of the time, place, and terms of sale. (Meacham v. Steele, 93 Ill. 147.) As we said in Cassidy v. Cook et al. 99 Ill. 388: ' “The power given, by its very terms implies that the trustee assumed the duty of thinking on the subject, and that he should adopt that, course which he should think would be best to secure a good price. It does not mean that the trustee may do as he may please, or that he may do that which should be the most convenient for him. ” So long as the trustee shall act honestly in selecting, the medium .of publication, his act can not be questioned; and the mere fact that others may differ from him in judgment in that regard, does not necessarily tend to impeach his honesty. But if he act from passion or prejudice, or from corrupt motives, he perverts his trust and exceeds his power, and binds none who are not prohibited from inquiring into his act.

The land conveyed by this deed of trust lies in Urbana township, adjoining the city of Urbana, the county seat of Champaign county. The payee and owner of the note thereby secured resided in the State of Florida. The trustee resided in the city of Urbana, and his place of business was in the city, and about one-fourth of a mile from the land. Complainant and her husband resided on the land. There was published at the time this notice was published, in the same building, and immediately over the trustee’s place of business, the “Champaign County Herald,” a weekly newspaper, having a circulation of more than 1800 copies, between 400 and 500 of which were in Urbana township. At the same time there was also published- at the city of Champaign, something like one mile or one mile and a half from the land, the “Champaign Comity Gazette,” a weekly newspaper, having a circulation of about 2000 copies in the county, 298 of which were in Urbana township. But Bantoul, where the notice was published, is in a different township, and is some eighteen or twenty miles distant from the land. The “Press, ” in which the publication was made, has, in all, a circulation of only 445, of which 280 are to subscribers in Bantoul township. The bulk of the remainder is to subscribers equally remote from the land, eight subscribers only,—among whom was not included complainant or any member of her family,—were in Urbana township, and in the townships adjoining Urbana the circulation was but nominal.

No reason is given why the notice was not published in a paper published in Urbana or' Champaigh. The trustee has not attempted to explain or defend his conduct in this regard, but seems to rest it entirely upon the ground that he had the arbitrary right to do as he did, which, we h&ve seen, is not accurate. Had the land been located at or in the immediate vicinity of Bantoul, a reasonable presumption would be that those seeking investments in real estate in that neighborhood would inquire of such sources of local information as would be attainable, and, among other sources, look to the columns of the local paper for advertisements. But who, desiring to purchase property in Urbana, would have thought the'proper source pf information'in regard to what was to be sold was the columns of the papers published in the remote villages of the county ? To test the good faith of this publication, let it be supposed that Curtiss had been the owner of this land, and compelled to sell it at public auction within a limited time, does any one suppose he would have passed over the papers in Urbana and Champaign and advertised in the “Bantoul Press?” Why should any honest man have supposed such a publication was better, or even as good, as one published in Urbana or Champaign? It has not the advantage of proximity to locality, and its circulation (and therefore its opportunity to give information) is less than one-fourth,—in general, and as respects locality of the land, less than one-fiftieth. No exceptional circumstance is shown to have existed which made this publication desirable, and even the selfish and insufficient excuse of previous business arrangements is excluded by proof “that the publisher had not, previous to that notice, received any patronage, printing or work of any kind from said Curtiss.” If Curtiss, had his own property been at stake, would not have made such a publication, he can not have acted in good faith in making it as a trustee. At first blush, the conduct of the trustee in this regard is so repugnant to the ordinary apprehension of duty and honesty, that it calls for explanation.

We think, moreover, that the evidence discloses a selfish motive in the trustee—a desire on his part to have the land sold without the knowledge of the complainant, and without competition in the bidding—and that his action was prompted by that motive. The trustee, Curtiss, and the defendant Burpee, were partners in banking and loaning money. The note to Sarah Shields, to secure the payment of which the trust deed was given, was for money which she placed in their hands to loan, and which they loaned to Webber, and upon which they received a commission. Although Curtiss only was trustee, the profits of the business belonged to the partnership. Curtiss and Burpee also had control of a claim, which was in judgment, in favor of Sarah K. Oliver, against Miller, Somers and Schlorff; and also, growing out of this, another claim against John W. Somers and George C. Webber, by reason of a replevin bond executed by them, and it seems that Curtiss and Burpee had, in some way, incurred a collateral liability on this account. Complainant’s husband, George C. Webber, testifies as follows: “When Mr. Burpee first notified me he had purchased the land, I went into the bank, and asked him why he and Curtiss had treated us so. Burpee said I had been the means of beating him and Curtiss out of $700 or $800 by becoming John Somers’ bondsman in the ■ replevin suit,. and unless we made that right we could not get that land back. ” Burpee, in his testimony, substantially admits the truth of this. His language is: “The conversation I had with Webber was this: He came into the bank, and wanted to know why I had treated him so. I told him I thought -he had treated us pretty mean in that John Somers matter, and that I did not care about the land, and if he would settle that John Somers matter, his portion of it, that I would deed him back the land for just exactly what I paid for it. ” White, one of the attorneys of complainant in this matter, testified, and Curtiss admitted that White stated the truth, in a conversation with Curtiss in regard to the sale, and some time subsequent thereto, Curtiss said “he had no desire to injure Mr.- Webber, but it could be settled' only in one way, and that was for Webber to pay his portion of the Miller and Somers debt, in addition- to what was due on the mortgage, and cost of sale.”

Observe the injury is to the partners, and it is the partners that retaliate by getting title in one of themselves,— Burpee. Webber’s question to Burpee included both Curtiss .and Burpee as actors. The answer justified for both, on the ground of an injury-to both, to the extent of the $700 or $800, and Curtiss, in speaking to White, instead of disclaiming all interest,, virtually admitted his interest by giving a positive and unqualified ultimatum, saying “he had no desire to injure, but, ” etc. The sale, therefore, though nominally to Burpee, was for the benefit of Curtiss and Burpee. This is further confirmed in the fact testified to by Curtiss, that so far as Burpee and Curtiss were concerned, the claim ■ of Sarah IL Oliver against George G. Webber and John W. Somers was satisfied by a payment made by Burpee from the amount he received for the sale of this land to Schlorff. That sale completed the scheme of Curtiss and Burpee, and made them whole as to the amount out of which George G. Webber had beaten them. Now, to do what was done, it was probably necessary to advertise just as Curtiss did advertise. The prcqDerty is shown to have been worth more than $6000, while the amount due on the note secured by the deed of trust, up to June 1,1880, was only $1215.89, and so Curtiss must have known complainant, or some one in her right, would redeem, rather than let the property go to sale; so to prevent this, the sale must be made without her or their knowledge, and to prevent this knowledge, and at the same time make a formal ■ compliance with the power, some out of the wTay newspaper must be selected. To subserve the selfish and personal ends, of the trustee there was reason for the selection of the “Bantoul Press, ” but to protect the interests of the owner of the equity of redemption it was against reason to select such a medium of notice.

The evidence does not establish a contract for the extension of time, but it does tend to show that complainant was misled and' put off her guard by the trustee. She testifies, and in that is corroborated by her husband, that in consideration of the payment that she made on the note, the trustee agreed that the balance might stand'two or three years. But this is denied by Curtiss and Burpee. -They admit, however, that there were propositions in regard to extending the time on the balance, but affirm that those of Curtiss were not accepted. Without considering which is more likely the correct view, it is evident that the trustee must have known the complainant and her husband were not expecting a present sale, and designed ultimately to redeem. If they had intended to let the property go, they would not have paid, as they did, after the note was due, the $2000. This was considerably more than half the debt, and was paid and accepted at a time when the trustee might, under the power, have advertised and sold. No steps were then, or soon after, taken to sell the property. The security -was more than ample, and the rate of interest the debt was then bearing was greater than it would bear if the old transaction were closed up and a new one entered into. The trustee ought to have known, and we presume did know, that complainant was relying on the belief that no steps would be taken immediately to sell the property for the balance due on the note. It is true the deed dispenses with personal notice, and if the sale had been promptly made upon the failure to pay the note when due, none could'have been necessary. But this could not apply where the trustee, by hjs acquiescence in the conduct of those entitled to redeem, or by non-action, reasonably authorized the belief that he would not sell without notice. The position of the trustee forbids that he shall affirmatively mislead, or stand by and knowingly permit those whose interests he represents to be misled, as to facts materially affecting their interests. And, under all the facts here in proof, it was clearly the duty of the trustee to have notified the complainant that he intended to proceed to sell, before advertising for that purpose. He had no right, knowingly, to permit an advantage to be taken by others, much less to take it for his own benefit. Burpee knew of complainant’s possession, and besides this, as partner and co-actor with Curtiss, he had actual knowledge which excludes him from the position of an innocent purchaser without notice. Schlorff also purchased wdth notice that complainant was in possession of the property, and that she claimed the right to redeem. He is bound to know what he might have known by following up the knowledge he had. Ahrens resided, it seems, for years with Schlorff, which is shown to have been only about one-fourth of a mile from this land. He had an opportunity to know that complainant was in possession, and doubtless did know it. He is charged with knowledge of her possession, and this was notice to the world of whatever rights she had in the land. Bartling v. Brasuhn, 103 Ill. 441; Flint v. Lewis, 61 id. 399 ; White v. White, 89 id. 460; Mathison v. Prescott, 86 id. 493.

. „ The cases cited hy counsel for the defendants, (Princeton Loan ancl Trust Co. v. Munson, 60 Ill. 371, Marston v. Brittenkam, 76 id. 617, and St. Joseph Manf. Co. v. Daggett, 84 id. 559,) and other cases heretofore decided by us, resting upon like principles, are totally unlike the present case. In none of them was it affirmatively shown that the trustee did not, or could not, as is here shown, have acted from an honest and unbi'ased judgment in selecting the medium of publication. Flint v. Leivis, supra, is “on all fours with this case.” There, as here, although not in so marked a degree, the publication was made to prevent, instead of to give, notice, and the owner of the equity of redemption was lulled by the trustee into inaction in regard to making speedy payment. The transaction was condemned, and the sale set aside. No end of justice is thwarted by allowing a redemption here.

We are of opinion the court below erred in decreeing that complainant’s bill be dismissed. Under the facts before .us the prayer of the bill in regard to. setting aside the several conveyances, and allowing a redemption, should be granted.

The decree of the court below is reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.


author: Per Curiam :

text:
    David Graham et al. v. The People ex rel.

      Filed at Springfield September 28,1882.

      Appeal—an office is not a franchise. An office is not a franchise, within the meaning of the constitution and the statute prescribing the appellate jurisdiction of the Supreme and Appellate Courts. Therefore, an appeal does not lie directly to this court from a judgment of the circuit court, ousting a party from an office.

      Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Mr. Almon Kidder, Mr. Wm. G. Norcross, and Messrs. Pepper & Kirkpatrick, for the appellants.
    Mr. John W. Matthews, State’s Attorney, for the appellees.
   Per Curiam :

This was an information in the nature of a quo warranto, filed in the circuit court of Warren county, to determine the question of title in the defendants to exercise the offices, one, of mayor, and the others, of aldermen, of the city of Monmouth. From a judgment of ouster against the defendants in the circuit court, they took this appeal directly to this court.

The appeal must be dismissed. It should have been taken. to the Appellate Court. The only claim that there can be of a right of appeal directly to this court, fiiust be upon the ground that a franchise is involved. In Board of Trade v. The People, 91 Ill. 80, we held that the right to membership in a private corporation was not a franchise, and in The People v. Holtz et al. 92 Ill. 426, that an office is not a franchise, within the meaning of the constitution and the statute prescribing the appellate jurisdiction of.the Supreme and Appellate Courts, the office of school directors being the one there involved. And see Chicago and Western Indiana R. R. Co. v. Dunbar, 95 Ill. 571.

Appeal dismissed.


author: Mr. Justice Mulkey

text:
    Parmelia Fisher et al. v. The Chicago and Springfield Railroad Company.

      Filed at Springfield September 28, 1882.

    1. Eminent domain—not limited to first condemnation. The law does not require a railroad company to acquire, by condemnation, all the lands necessary for the construction and operation of its road at the same time. It may increase its facilities as the business of the country may require.
    2. So, where a railroad company had a side-track for many years before, connebting its main track with a public warehouse and elevator, in a town, over the land of another, but without having the right of way therefor except by the mere consent or license of the owner, it was held, that the company had the right to institute proceedings to condemn the land over which such branch run, for right of way.
    3. Presumption—in favor of judgment below. "Where the evidence heard in the court below in a proceeding to condemn land for right of way, is not preserved in the record, every presumption will be indulged by this court in favor of the findings of the court upon all questions of fact.
    Writ of Error to the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.
    Mr. Oscar Allen, ,for the plaintiffs in error r.
    Under the present statutes a railroad corporation can not exercise the right of eminent domain, to condemn land for. the purpose of running a short branch from its main line to an elevator or warehouse situated a short distance from the main track, especially after the main line is finished. Mayor of Macon v. Macon and Western R. R. Co. 7 Ga. 221; Morris and Essex R. R. Co. v. Central Railway, 2 Vroom, 305.
    The grant of such a power being in derogation of the common law, is to be strictly construed. Gray v. Liverpool and Bury Ry. Co. 9 Beav. 391; Charles River Bridge v. Warren Bridge, 11 Pet. 420.

      Messrs. Moore & Warner, for the defendant in error:
    There being no bill of exceptions, the judgment of the court below must -be affirmed. Nason v. Letz, 73 Ill. 371; Reichwald v. Gaylord, 73 id. 501; Choate v. Hathaway, 73 id. 518 ; Nimmo v. Kuykendall, 85 id. 476; Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. 93 id. 342; Magill et al. v. Brown et al. 98 id. 235; Parsons v. Evans, 17 id. 238; Daniels v. Shields, 38 id. 198; Snell v. M. E. Church, 58 id. 290; Reed v. Horne, 73 id. 599; D. M. Force Man. Co. v. Horton, 74 id. 310; Jennings v. Hinckle et al. 81 id. 183; Darst v. Thomas, 87 id. 222; Dalton v. Roach, 89 id. 85; Chicago, Burlington and Quincy R. R. Co. v. Wilson, 17 id. 123; Low v. Galena and Chicago R. R. Co. 18 id. 324.
    The amount of land which the company is authorized to take is measured by the necessities of the case only. Bowman et al. v. Venice and Carondelet Ry. Co. 102 Ill. 459; New York Central R. R. Co. v. M. G. L. Co. 63 N. Y. 326; C. R. R. Co. v. Speer, 56 Pa. St. 325; Philadelphia R. R. Co. v. Williams, 54 id. 103; Pratzman v. Ind. R. R. Co. 9 Ind. 467; Knight v. C. R. R. Co. 9 La. Ann. 284; New Orleans R. R. Co. v. Second Municipality, 1 id. 128; T. and W. R. R. Co. v. Daniels et al. 16 Ohio St. 390.
    The act giving the - company the franchise makes it the júdge of the necessity, and the question of its' necessity can not be raised in this proceeding. Chicago, Rock Island and Pacific R. R. Co. v. Town of Lake, 71 Ill. 333.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 3d of February, 1880, the Chicago and Springfield Eailroad Company filed its petition, under the Eminent Domain act, in the Logan county circuit court, praying the condemnation of a strip of land situated in the town of Mt. Pulaski, in said county, of the width of forty feet, and extending from the main track of the company’s road to a public warehouse and elevator in said town. At the time of filing the petition, and long prior thereto, the strip of land in question was occupied by a side-track of: the .company, connecting the main, line of its road with the warehouse and elevator. It appears, however, it was originally constructed and so used and occupied by the railway company by the mere permission or license of the owners, no legal steps having ever been taken by the company to have it condemned for that purpose, until the commencement of the present proceedings.

The petition appears to contain all the requirements of the statute. Indeed, it is not claimed it is in any respect defective, or that there is any irregularity in the proceedings. The plaintiffs in error, who appear of record to be the owners of the .land sought to be condemned, appeared and answered the petition, and also filed a' cross-petition, in which they interpose a claim for damages to adjacent lands not taken. The question of compensation, both upon the petition and cross-petition, was submitted to a jury, who fixed it at §50 for the strip taken, and nothing for the lands not taken, and the court entered judgment in favor of plaintiffs, and against the defendant in error, for the amount of compensation as fixed by the verdict of the jury, and also an order directing that upon the payment of this amount the petitioner should have the right of way over the strip of land' in question, according to the prayer of the petition. To reverse this order and judgment the plaintiffs in error bring the case to this court, and assign for error the making of said order of condemnation.

Under this assignment of error counsel for plaintiffs makes but a single point, which, expressed'in his own language, is, “that a railroad corporation organized under the present statutes of this State can not exercise the. right of eminent domain, to condemn land for the purpose of running a short branch from their main line to an elevator or warehouse situated at a distance from the main track, especially after the main line is finished. ” To what extent a railway company, with • the ordinary powers of such companies, after having completed its-main line of road1 and such side-tracks as were supposed to be necessary for the convenient transaction of its business, may, with the view of increasing its business facilities so as to meet the wants and necessities of the public, avail itself of the Eminent Domain act, for the purpose of obtaining additional grounds and building short tracks connecting the main line of its road with public elevators and warehouses in its immediate vicinity, without an additional legislative grant for that purpose, is not fully presented by this record, and we do not therefore feel called upon to enter upon .any extended discussion of the question. The petition shows upon its face the side-track occupying the strip of land sought to be condemned was laid' out qnd constructed as long ago as August, 1873, by the Gilman, Clinton and Springfield Railroad Company, under which the defendant in error claims, and it is expressly characterized in the petition as a side-track of the road, the same having been continuously used as such ever since its construction, in 1873. The authority of the present company to purchase and operate the railroad, with its side-tracks and appurtenances, is sufficiently set forth in the petition, and we perceive no sufficient reason why the present company may not now properly institute condemnation proceedings to acquire the land occupied by the side-track in the same manner it, or the company under which it claims, clearly could have done had the proceedings been instituted at an e'áflier day. We are aware of no rule of law that requires a railway company to acquire, by condemnation, all lands necessary for the construction and operation of its road at the same time. Often it is difficult, if not impossible, to tell in the first instance what amount will be required for such purpose, as this depends so largely upon the growth and development of country towns and villages along the line of the road. We see nothing in the objection urged.

The evidence not having been preserved in the record, every presumption will be indulged in favor of the findings of the court upon all questions of fact.

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

Judgment affirmed.


text:
    Henderson E. Massey v. The Farmers’ National Bank of Virginia.

      Filed at Springfield September 28,1882.

    1. Practice—dismissal of suit as to one of several defendants. In a joint suit against several, where one of the defendants makes a defence personal to himself, it is the proper practice to enter a nolle prosequi as to him, if the plaintiff choose to do so. So, where three are sued upon a joint and several promissory note, and one of the defendants files the general issue sworn to, this will justify the plaintiff in dismissing the suit as to him.
    2. Where suit is brought against three persons, as the makers of a joint and several note, and the suit is dismissed as to one making a personal defence, and the plaintiff then dismisses as to another pleading the general issue only, the remaining defendant will have no just ground of complaint, as he might have been sued alone, and such action may be sustained under section 24 of the Practice act, allowing amendments discontinuing as to any of several joint defendants.
    3. Same—general objection to evidence—whether sufficient. An objection to a question to an impeaching witness, calling for his belief of the testimony of the witness sought to be impeached, founded in part on interest in the cause, will be well taken without specifying the specific ground thereof. Asking a question as to belief of a witness, from his general reputation for truth, is so familiar and well established, that a general objection to a question calling for belief, founded partly on such reputation and partly on interest, will be considered as applying to the latter part.
    4. Evidence—proof of handwriting—cross-examination. To prove the handwriting of the alleged maker of a note, a witness was called who testified that some six years before he had seen him write, and that it was his impression that the signature to the note was in such party’s handwriting, but on cross-examination said he did not know that he could pick out his signature from a number, whereupon counsel handed the witness a paper having written on it the party’s name sixteen times, and asked him to point out the genuine signatures, if any were such, and the court excluded the question, to which1 exception was taken: Held, such a test of the witness’ knowledge was not admissible.
    5. On the same question, as to the" genuineness of "the signature to the note, the plaintiff called another witness, who had been the clerk of the court, who testified that he had seen the defendant write once, which was when he signed his name to the affidavit to the plea, and that in his opinion the signature to the note was genuine. On cross-examination the witness said he could not say the capital letters H and E, in the note, were like the ones he saw the defendant make,—that there was some difference (describing the same) as to both letters. He was then asked: “Look at the capital letters, and see if they are like the ones on the note, ” and, “Is it not true the capital letters H, E and M, in the signature to the note, differ widely from the capitals in the signature you- saw him write?”—to which questions the court sustained objections: Held, that while the court -might properly have admitted the questions, it could not be said there was-any material error in not doing so, as the witness had already testified as to two of the three letters.
    6. Witness—competency—interest in result of suit—as affecting competency of wife. Where an action on a promissory note is dismissed as to the principal maker of the note, and the cause tried as to a surety, the principal will have no such interest in the result of the suit as to render him incompetent as a witness for the plaintiff, at common law, and hence his wife is also'competent in behalf of the plaintiff.
    7. Same—credibility—impeachment. In the impeachment of a party who had testified in his own behalf, witnesses were asked, after stating their knowledge of his general reputation for truth and veracity, “From that reputation would you, or not, in a case where he was personally interested, believe him under oath?” to which reply was made that if he was interested the witness would hesitate to believe him: Held, that it was error to allow the question to be answered against objection.
    8. This mode of impeachment is confined to general reputation. Evidence of particular facts is not admitted, and the opinion allowed to be expressed by the impeaching witness is to be based solely on general reputation, and not on particular facts,—not upon general reputation and interest in the case.
    9. Same—-jwry alone must pass on credibility of witness. The effect of interest upon the credibility of testimony is solely for the consideration and judgment of the jury, and no witness should be allowed to pass upon it, either singly or in connection with any other matter. There should not be given the opinions of witnesses upon the discrediting effect of interest, in whole or in part, upon testimony.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Cass county; the Hon. Cyrus Bpler, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for the appellant :
    By the rules of the common law, the dismissal of the suit as to Henry C. Massey would not render him a competent witness, because of his interest in the result of' the suit. 1 Greenleaf on Evidence, secs. 386, 393-7.
    The wife, by the common law, is disqualified in any case in which her husband is, by reason of interest. Illinois Central R. R. Co. v. Taylor, 24 Ill. 323.
    The recent legislation leaves the husband and wife in the same position as at common law,- except when the litigation has reference to the separate property of the wife. Rev. Stat. 1874, p. 489, sec. 5. See, also, Phares v. Barbour, 49 Ill. 370 ; Meyer v. Hartman, 72 id. 442; Hays v. Parmelee, 79 id. 563; Tripp v. Barker, 78 id. 146; Hawver v. Hawver, 78 id. 412.
    The court erred in allowing the impeaching witnesses to be asked: “In a case where he was pecuniarily interested, would you believe him under oath?” Greenleaf on Evidence, (12tli ed.) see. 461. See dissenting opinion of Breese, J., in Eason et al. v. Chapman, 21 Ill. 36; also, Crabtree v. Hagerman, 25 id. 238.
    The reputation sought to be affected- must be that of the party at the time he testifies, and not at some remote time in the past. 1 Wharton on Evidence, see. 563; State v. Howard, 9 N. H. 485; Rogers v. Lewis, 19 Ill. 405; Aurora v. Cobb, 21 Ind. 492; Commonwealth v. Billings, 97 Mass. 495; People v. Abbott, 19 Wend. 192.
    To test the witness’ knowledge of the handwriting of the party, it was proper to show him the list of signatures, on cross-examination, and ask him to state which of them were genuine, if any. Wharton on Evidence, sec. 710.

      Messrs. Ketcham & Gridley, and Mr. L. H. Hatfield, for the appellee:
    The questions put to the witness as to the handwriting of the party, was in effect an attempt at comparison of signatures, which is not allowed. Kernin v. Hill, 37 Ill. 209.
    Witnesses will not be allowed to compare a signature in question with one not admitted or established to be genuine. Vinton v. Pierce, 14 Mich. 287; Ellis v. People, 24 How. 356; Henderson v. Hackney, 16 Ga. 521; Williams v. Drexel, 14 Md. 56; Van Wyck v. McIntosh, 14 N. Y. 439; Duvers v. Barker, 40 Barb. 556.
    Under' the statute, a wife is competent to testify in behalf of her husband’s interest, in a case where he is not a party to the record.
    As to the point made as to the manner of the impeachment, we have but two remarks to make: First, the record
    shows no objection to the form of the question, when there was added to the inquiry whether the witness would -believe appellant under oath, the words, “in a case where he was personally and pecuniarily interested; ” second, the inquiry so put is restricted, and calls for an answer more favorable to the party impeached.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a suit brought by .the Farmers’ National Bank of Virginia, against Henry C. Massey, Henderson E. Massey, and George W. Laurie, upon a promissory note, purporting to have been executed jointly and severally by the defendants to the bank. The defendants severed in their pleas, Henry C. Massey pleading the general issue, Laurie the plea of the general issue, sworn to, and Henderson E. Massey filed a plea denying the execution of the note, verified by affidavit. On motion, the plea of Henry C. Massey was stricken from the files, and he was defaulted. Two trials were had, in which, the jury failing to agree, they were discharged. The plaintiff afterward dismissed its suit as to the defendant Laurie, and a third trial was entered upon, on the second day of which, on motion of the plaintiff, the default as to Henry C. Massey was set aside, and the suit was dismissed as to him, and subsequently a verdict was rendered against Henderson E. Massey for $4982.42, upon which, after overruling a motion for a new trial, judgment was entered, which was affirmed on appeal to the Appellate Court for the Third District, and an appeal taken by Massey to this Court. There are various errors assigned.

As the action was brought jointly, it is insisted the dismissal of the suit as to Henry C. Massey and Laurie released the other defendant, Henderson E. Másséy. ' In 'a joint suit, where one of the defendants makes a defence personal to himself, it is the recognized proper practice to enter a nolle prosequi as to him. This would justify the dismissal as to Laurie, and though the dismissal as to Henry C. Massey might not come within this rule, yet we see no just ground of complaint for this action, on the part of Henderson E. Massey, inasmuch as the note being several, the plaintiff would have been entitled to have brought suit and obtained judgment against Henderson E. Massey alone. Section 24 of the Practice act, too, (Rev. Stat. 1874,) provides that at any time before final judgment, amendments may be allowed discontinuing as to any joint defendant, and changing the form of action.

Henry C. Massey was the principal in the note, and his wife was received as a witness on the part of the plaintiff. It is urged there was error in this, that Henry C. Massey was interested in the result of the suit, and that the wife, by the common law, is disqualified in any case in which her husband is disqualified by reason of interest. We fail to perceive the interest which would have rendered Henry C. Massey incompetent as a witness for the plaintiff at the common law, and see no error in the admission of his wife as a witness. See Sconce v. Henderson, 102 Ill. 376, in favor of the competency of Henry C. Massey.

One Gatton, a witness for plaintiff, testified that .some years before, he had seen Henderson E. Massey write, and that it was his impression that the signature of the name of ' said Massey to the note in question was in his handwriting. After then stating, on cross-examination, that it was six or seven years since he saw Massey write, and that he did not know whether he would know his signature now, and did not know that “he could pick out his signature in the bank, ” defendant’s counsel handed the witness a paper having written on it the name “H. E. Massey” sixteen times, and asked the witness to point out the genuine signatures, if any were genuine. The, court excluded the question, and exception is taken to this. It is urged that this question was proper on cross-examination, for the purpose of testing the knowledge of the witness, and as authority therefor reference is made to 1 Wharton on Evidence, sec. 710, where the author says: “There is little question that a witness may, on cross-examination, be tested by putting to him other writings not admitted in evidence in the case, and asking him whether such writings are in the same hand with that in litigation.” Without stopping to inquire as to the general correctness of this observation, and especially where the rule obtains, as in this State, that evidence of the genuineness of handwriting, based on comparison of hands, is not admissible, we think that at least with- reference to test papers got up for the occasion, as in the present case, there was no error in not allowing the course of cross-examination proposed. The ■same author, further on, in section 715, remarks: “We have already seen that a party can not make testimony for himself by writing specimens for the instruction of witnesses afterwards to be called, as to his handwriting. By the same reasoning a party can not be permitted to get up in this way test papers to be used subsequently for comparison of hands.” And although the paper here offered was not to be used professedly for comparison of hands, we think its admission for the purpose declared would be alike objectionable. See Griffits v. Ivery, 11 A. & E. 322, and King v. Donahue, 100 Mass. 155. In the former case, where there was the dis-allowance of a like course of cross-examination for the purpose of testing the witness’ knowledge, Colebidge, J., said: “We must not allow papers which are not evidence in the cause to be let in for any purpose whatever. ”

One Finney, who had been clerk of the circuit court in which the suit was tried, testified, on behalf of the plaintiff, that he had see'n defendant write once, and gave his opinion that the signature of defendant’s name was genuine. On cross-examination it appeared that it was the signature to the affidavit to the plea of the defendant that the witness saw written. The plea, verified by the affidavit of the defendant, was then produced and shown to witness, and the question asked, “Look at the'capital letters, and see if they are like the ones on the note. ” Objection to the question was sustained, and the further question asked, “Is it not true the capitals H, E and M, in the signature to the note, differ widely from the capitals H, E and M, in the signature you saw him write?”—to which objection was sustained. These rulings are assigned for error. While we think the court might properly enough have admitted these questions, we can not say there was any material error in not doing so, at least in view of the testimony which was given. The witness had stated before, in the cross-examination, that he could not say the H in the note was like the one he saw defendant make; that there was some difference, describing it; that he could not say the E 'was like, or wholly unlike, the one witness saw hi in write; that there was a discrepancy between them, which he described. This testimony was substantially a response to the questions propounded. It was so, except as to the single letter M.

We perceive no error in the refusal to receive in evidence the notices which had been sent by the bank of the falling due of the note in suit, and one- other. Their relevancy to the issue is not apparent.

Henderson E. Massey was a witness,-in his own behalf, on the trial, and testified to the non-execution of the note by him. One Beard, called as a witness on the part of the plaintiff, testified that the general reputation of defendant, Henderson E. Massey, for truth and veracity was not very good. Against the objection.of defendant’s counsel, the court then permitted this question to the witness: “From that reputation would you, or not, in a case where he was personally interested, believe him under oath?” to which the witness made answer: “If Mr. Massey was interested, I would hesitate to believe him. ” To seven 'other witnesses, called by the plaintiff', the same questions, against defendant’s objection, were allowed as the one to the witness Beard, who made substantially the same answer as he did. This is complained of as error. In Frye v. Bank of Illinois, 11 Ill. 369, this court laid down as the rule, that the proper question to be put to a witness called to impeach another is, whether he knows the general reputation of the person sought to be impeached among his neighbors for truth'and veracity, and if this question be answered affirmatively, the witness may then be inquired of as to what that reputation is, and whether, from that reputation, he would believe him on oath. This latter inquiry as to belief is the English rule upon the subject, which we have adopted. Mr. Greenleaf, after stating the English rule, remarks that in the American courts perhaps the weight of authority is now against permitting the witness to testify as to his own opinions. This is a consideration against extending such rule of inquiry as to the witness’ own belief beyond the limit for which it has the sanction of authority. This mode of impeachment is confined- to general reputation. Evidence is not admitted of particular facts, and the opinion allowed to be expressed' is to be based solely on general reputation, and not on particular facts. The opinions which were permitted to be given in the present case were not founded upon general reputation alone, but upon general reputation, and interest in the case. Now; the effect of interest upon the credibility of testimony is solely for the consideration and judgment of the jury, and no witness should be allowed to pronounce upon it. The naked question, whether, from defendant’s interest in the case, the witness would believe him on oath, no one would pretend to justify. There would be the same objection, though less in degree, to such an inquiry, based upon general reputation for truth, and interest in the case. Both questions would be improper, as calling for an expression of opinion as to the effect of personal interest upon the credibility of testimony,—in the one case, as to the effect of interest alone; in the other, as to its effect in conjunction with another discrediting circumstance. There should not be given the ojfinions of witnesses upon the discrediting effect of interest, in whole or in part, 'upon'testimony. Here,' the question laid down by the books as the proper one in such case, whether, from defendant’s general reputation for truth and veracity, the witness would believe defendant on oath, was not put; but the question put was, whether, from such reputation, they would so believe him in a case where he was personally interested, asking an opinion based in part on interest'. The question has not the warrant of authority, and was improper.

To what extent the consideration of personal interest influenced the opinions expressed, we have no means of knowing. The form of the answer, “if Mr. Massey was interested,” etc., would indicate that defendant’s interest in the case had . controlling force. We can not say defendant was not prejudiced by the improper question put, and that the answer would not have been different and less unfavorable for the defendant had the proper question been asked. The credibility of defendant, as a witness, was a vital matter. Other witnesses testified as to their opinions of defendant’s signature from having seen him write. Defendant knew whether the signature was his own or not, and testified from actual knowledge. . Improper testimony, unfavorable to his credibility, was calculated to do him great harm. Where a party gives testimony in his own cause, the admitting of many witnesses to give their opinions in any respect as to the effect of his personal interest in diminishing his credibility, is placing such testimony under an unfair disadvantage. We hold that there was error in the allowance of the question.

Appellee’s counsel raise the point that the objection to the question was a general one, and that it should have been special, stating the particular ground of objection, in order to be availed of on error. Asking the question as to belief of a witness from his general reputation for truth, is so well established in this State as proper, and is so familiar in practice, that the court could not but have understood that the objection to the question was, in its inquiry as to belief, founded in part on interest in the cause. The ground of the objection was so palpable that we think there was no need of stating it.

For the error indicated, the judgment must be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    William A. Conkey et al. v. Sarah F. Knight et al.

      Filed at Springfield September 28,1882.

      Appeal—whether freehold is involved. On creditor’s bill to set aside certain deeds as fraudulent, and subject the lands thereby conveyed to the payment of the judgments against the grantor, no freehold is involved, and therefore no appeal lies directly from the trial court to this court, from a decree setting aside such deeds as fraudulent, and ordering a sale of the property. Such appeal should be taken to the Appellate Court.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. 0. Cunningham, for the appellants.
    Mr. Geo. W. Gebe, Mr. F. G. Jacques, Mr. J. R. Ray, and Mr. J. W. Sim, for the appellees. •
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This was a creditors’ bill, and was brought by Sarah F. Knight, and other creditors of the estate of Otis M. Conkey, deceased, against S. W. Custer, administrator of the estate of the intestate, and the sureties on his official bond. It is represented in the bill, that each of complainants and the intervening petitioners had obtained judgments at law against the administrator and his sureties on his bond, in sums specifically named, upon which executions had been issued, and returned nulla bona. It is further alleged, that in a proceeding had in the county court, it was ordered that the administrator pay all claims against the estate in full, except those of the seventh class, and of this latter class of claims that he pay a dividend of sixty per cent,—which order was, on appeal to the circuit court, on the 10th of May, 1879, affirmed, and which order is still in force. It is also further alleged, that at the time of the affirmance of the order of the county court, but before complainants obtained their judgments at law, the sureties on the administratqr’s bond were owners of real estate of great value, which they afterwards conveyed to parties who arc made defendants to the bill. It is charged these conveyances were all made without any valuable consideration, and with a view to hinder and delay complainants in the collection of their judgments against the grantors, and for that reason were fraudulent and void as to them. After filing their answers to the original bill, defendants Conkey, Teazel, Swearingen and Ocheltree, all of whom w-ere sureties on the administrator’s bond, filed a cross-bill, in which they represented there was not, in fact, the amount in the hands of the administrator, subject to distribution among creditors of the seventh class, as found by the county court, and the circuit court on appeal, and asked to have a re-statement of the accounts of the administrator taken, so as to conform to what is alleged to be the exact fact. On the hearing of the cause, the circuit court sustained a demurrer to the cross-bill, and dismissed it for want of equity, and decreed relief on the original bill, finding by its decree that the several conveyances of lands by the judgment debtors wrere fraudulent as to complainants, and that the lands were subject to the executions issued on complainants’ judgments, and unless the sums due thereon were paid within a time fixed, it was decreed the lands of the judgment debtors should be sold in the usual mode of making such sales, with the usual privilege of redemption secured by statute. From that decree complainants in the cross-bill asked and obtained an appeal directly to this court. None of the other defendants joined in the appeal.

It would seem, in a case of this kind, the real question involved is, whether the lands can be subjected to the payment of the indebtedness of the judgment creditors. Payment of the several judgments, or a redemption of the lands in case a sale should be made, would relieve the lands entirely from all claim of complainants, so that it can not now be ascertained whether the title will ever be affected. How, then, is a freehold involved, any more than in a proceeding to subject the mortgaged premises to the payment of the debt secured? So far as the original bill is concerned, a case analogous in principle is Clement v. lieitz, 103 Ill. 315, and it was held in that case, as no freehold was involved the appeal should be dismissed.

The matters alleged in the cross-bill relate only to the amount of assets adjudged to be in the hands of the administrator, and of course involve no question that would give this court jurisdiction in the first instance to hear the appeal. The appeal shofild have been taken to the Appellate Court.

As this court has no jurisdiction to hear the appeal, it must be dismissed.

Appeal dismissed„


author: Mr. Justice Walker

text:
    Jacksonville, Northwestern and Southeastern Railroad Co. v. The Town of Virden et al.

      Filed, at Springfield September 28, 1882.

    1. Municipal bonds—of the election—necessity of making a record of the call of an election. The validity of bonds issued by a town in aid of a railroad, does not depend upon the keeping of a record showing the authority of the clerk to give notice calling an election on the question of their issue, or to preserve a record of the notice of the election. The rights of bondholders do not depend upon the performance of such a duty by the town clerk, but upon whether there has in fact been a substantial compliance with the requirements of the law authorizing the election to be held.
    2. Same—by whom an election to be ordered. An election to determine whether a munieqiality will subscribe to the capital stock of a railroad company, and issue its bonds 'in payment of such subscrintion, can be ordered only by the persons or functionaries designated by the law. An election called by any other person or body is absolutely void, and so are all acts growing out of or performed under it. Bonds issued in pursuance of such an election are.void, and taxes levied for their.payment, or for the payment of interest thereon, are illegal, and their collection may be enjoined.
    3. Same—charter construed as to who shall call election, etc. Section 18 of the charter of the Jacksonville, Northwestern and Southeastern Railroad Company, provides that the acts for a general railroad system, of November 6, 1849, and to facilitate the construction of railroads, of March 1, 1854, are made applicable to any election to determine whether any town shall subscribe to the stock of the road. The first of these acts so referred to by section 4, provides for the manner of calling and holding elections for or against subscriptions, and applies only to counties and cities requiring the county judge or city council to give at least thirty days’ notice of the election, and the conditions of subscription. The other relates to the manner of issuing the bonds. Section 18 of the charter makes these acts applicable to towns at the ends or along the line of the road. When thus made applicable to such towns, on subscribing for such stock, the election is required to be called, by the president and trustees thereof. In giving the notice of the election, that body could order its town clerk to prepare and post the notices, and that would be in conformity with the requirement, as he who acts by another, acts by himself; but without such an order the clerk is as powerless to give the notice as any other person. So, an ordinance or order of the corporate authority, requiring or authorizing the clerk to give a notice of an election on the question of a-subscription to the stock of the company, and on what terms and conditions, is an indispensable prerequisite to the validity of any subscription, as much so as the election itself.
    Writ of Error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for the plaintiff in error:
    The town of Virden has no interest in this suit, and ban not maintain a hill to declare its bonds void. City of Waverly v. Auditor, 100 Ill. 354.
    The charter does not require the submission to a vote shall be by ordinance.- A resolution was sufficient to. call the special election. 2 Dillon on Municipal Corp. 360; Blanchard v. Bissell, 11 Ohio St. 96; State v. Jersey City, 3 Dutcher, 493; Sorrells v. Philadelphia, 35 Pa. St. 257.

      Where power is given, but the mode of exercising it is not defined, the election may be called by resolution. 2 Dillon on Municipal Corp. 711; Terre Haute v. Town, 36 Ind. 531; Delphi v. Evans, 36 id. 90.
    The court erred in holding section 18 of the charter invalid, and in enjoining the Auditor from levying taxes for the payment of the interest on the bonds in question.
    Messrs. Henry, Cook & Lord, for the defendants in error:
    The only authority for issuing these bonds is section 18 of the act to incorporate the Jacksonville, Northwestern and Southeastern Railroad Company. That section contains no express grant of the power, but refers to “An act supplemental to an act entitled ‘an act to provide for a general system of railroad incorporations,’ ” approved November 6, 1849, and, also, “An act to facilitate the construction of railroads,” approved March 1,1854, and declares they are made applicable to every town incorporated, situated at either end or near the line of the railway, as it may be located, etc.
    The first act referred to confers no authority upon towns, townships and villages to make subscriptions, and before one can be legally made there must be an express grant of power. Town of East Oakland v. Skinner, 94 U. S. 256; People v. Town of Waynesville, 88 Ill. 475.
    A charter is held to be a contract between the State and the corporation, and no clause of power or of privilege can be inserted by implication. Charles River Bridge v. Warren, 11 Pet. 420; Bank v. Commonwealth, 10 id. 422; Bradley v. Railroad Co. 21 Conn. 294; Bank of Chilicothe v. Swayne, 8 Ohio, 287; Trustees of Jacksonville v. McConnel, 12 Ill. 138; Bissell v. Kankakee, 84 id. 251; Pittman v. Freeburg, 92 id. 113.
    The legislature can not set aside the construction of the law already applied by the court to actual cases; neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. Cooley on Const. Lim. (2d ed.) 94; Ogden v. Blackleage, 1 Curtiss, 490; Dash v. Van Click, 7 Johns. 477; Bissell v. Tell. Ass’n, 29 Pa. St. 137; Louis v. Webb, 3 Greenlf. 326; Holden v. James, 11 Mass. 396; Durham v. Leivison, 4 Greenlf. 140; Powers v. Bergen, 6 N. Y. 358.
    The burden of showing that these bonds were issued in compliance with a vote of the people, had prior to the adoption of the constitution, in pursuance of some law then providing therefor, rests upon those affirming their validity. Jackson County v. Brush, 77 Ill. 191; Town of Prairie v. Lloyd, 97 id. 191.
   Mr. Justice Walker

delivered the opinion of the Court:

This case was before this court on an appeal by complainants,—the defendants in error- in this case. It was then assigned for error that the court below erred in dismissing the bill as to the non-resident holders of the bonds, and the refusal of the court to decree the payment of the taxes in the hands of the State and county treasurers, collected on the assessment for taxation, to the corporate authorities of the town. On a hearing, the assignment of errors was not sustained.

The decree finds there was never recorded any ordinance of the town authorities, or any record of authorhy for the clerk to give notice of an election; that the bonds were issued to become due the 1st of January, 1892; and-it. was found that the-18th section of the charter, under which the election was held, was unconstitutional. It was decreed they were null and void, and were issued without authority of law, and it enjoins the Auditor from levying a tax with which to pay the bonds, or interest thereon, and enjoins the clerk from extending them on the collector’s books, and the collector of the township from collecting such taxes.

The findings of the court are not material, as the bill was taken pro confesso. On such a decree all of the material allegations of the "bill are taken as true, and such a decree as they warrant will be sustained. The only question, then, presented by this record is, whether the bill warranted the relief granted. It is urged by plaintiff in error that it did not, and the decree is therefore erroneous, and should be reversed. It is no doubt true that the bill, in some of its allegations, is inartificially drawn, and the allegations immaterial. The allegation that there is no record that the town authorities empowered the clerk to give notice calling the election, or of the notice, can not invalidate an election legally called and held. The rights of bondholders and creditors do not depend upon the performance of such a duty of the town clerk. That depends upon whether there has in fact been a substantial compliance with the requirements of the law authorizing the election to be held, otherwise it would be in the power of the clerk to invalidate bonds clearly legal and binding, by refusing to make a record that the order was made or notice given.

But does the bill contain allegations that support the decree? We think it does. It is alleged that no ordinance was ever passed requiring or authorizing an election, or the town clerk to give a notice of an election, to determine whether the subscription should be made, and on what terms and conditions. These, under the statute, were indispensable to the validity of the subscription. The 18th section of the charter of the railroad provides, that the acts for a general railroad system,- of November 6, 1849, and one to facilitate the construction of railroads, of the 1st of March, 1854, are made applicable to any election to determine whether any town shall subscribe to the stock of the road. The first of these acts, by section 4, provides for the manner of calling and holding the election for and against subscription. It provides that the county judges or city council shall give at" least thirty days’ notice of the election, and the conditions of subscription. The other act relates to the manner of issuing the bonds of the city or county. These acts relate only to county and city subscriptions, but the 18th section of the charter makes them applicable to towns at the ends or along the line of the road. When thus made applicable to such towns, in subscribing for such stock, the election was required to be called by the governing authority of the town, as it was by the authorities of the county or city. In a city, the common council was required to order the election, and the 18th section of the charter .imposes that duty on the president and trustees. Under these acts a legal election could not be held without such an order. That, under the statute, invokes and brings the power into action, and that was the only mode in which, it could be exercised. This was the first, and one of the most important, acts by which authority could be acquired to subscribe. None is more important to authorize the exercise of the power, unless it be a majority vote in favor «of subscription. The president and trustees, in giving the. notice of the election, could order the town clerk to prepare and post the notice, and that would be in conformity to the requirement. He who acts by another, acts by himself. • Without such an order the town clerk was as powerless to give the notice as any other person in the town.

It has been frequently held that the election can be ordered only by the persons or functionaries designated by the law,— that an election called by any other person or body is absolutely void, and so of all acts growing out of or performed under it. See Schuyler County v. Farwell, 25 Ill. 181, Clarke v. Hancock County, 27 id. 305, and Marshall County v. Cook, 38 id. 44. These cases are decisive of this question.

The allegation standing confessed, that no election was ordered by the president and trustees, is fatal to' the validity of the bonds involved in this case, and being void, there was no error in enjoining the collection of taxes for their payment, or interest thereon, and the decree of the court below must be affirmed.

Decree affirmed.