author: Mr. Justice Baker

text:
    Abraham Brokaw v. The Commissioners of Highways of Bloomington Township.

      Filed at Springfield

      October 31, 1889.

    1. Mandamus—how far discretionary—in a doubtful ease. The writ of mandamus, since the revision of the statute relating to that remedy, is only issued in a clear case, and in the discretion of the court. When it is doubtful whether the act sought to be coerced will or will not make the party liable for a trespass, the court, in the exercise of its discretion,, will refuse the writ.
    2. Same—in case there is another remedy. The ground that there is-another remedy equally convenient and effectual, and therefore mandamus did not lié, is abrogated by section 9 of the act to revise the law in relation to mandamus, in force July 1,1874.
    3. Same—as to matters that are discretionary—in case of am abuse of discretion. In case of an abuse in the exercise of a discretionary power,, so that injustice will result, it is admissible that the exercise of the-power shall be controlled by mandamus.

    4. Same—obstruction in highway—mandamus to compel highway commissioners to remove it. Prior to the revision of the statutes in 1874,. the doctrine held by the courts was, that where a highway had been obstructed, after having been opened and traveled by the public, the proper remedy was by prosecution under the statute, against the party causing the obstruction, and not by mandamus to compel the commissioners of highways to open the road, principally for the reason that, there was a complete and adequate remedy at law by indictment.
    5. Same—former decision—distinguished. The case of Yorhtown v.. People, 66 HI. 339, to the effect that the court would not, by mandamus, compel commissioners of highways to open a road and remove obstructions therein, when such act might be a trespass, was made at a time-when there was no statute which expressly imposed such a duty, and' in a case where the obstructions were of long standing, and were maintained under a claim of right, while in this case, the facts admitted by the pleadings show the existence of the highway and an obstruction of the same.
    6. Highways—removing obstructions—duty of highway commissioners. Under the act of 1883, in regard to roads and bridges in counties under township organization, the commissioners of highways are given the charge of the roads and bridges of their respective towns. By section 2 of that act the commissioners of highways, after having given reasonable notice to the person obstructing the highway to remove the obstruction, are given the power to remove the same, and to recover the cost of such removal from the party so obstructing the same. And by section 74 of the act it is made their duty to seasonably prosecute for all fines and penalties incurred under such act.
    7. The provisions of section 71 of the Hoad law of 1883, “that the commissioners, after having given reasonable notice, etc., may remove any such fence or other obstruction,” etc., are intended to impose upon the commissioners the imperative duty of removing obstructions from the public highway. The word “may” in such section is to be construed as “shaU.”

      8. While it is the imperative duty of commissioners of highways to remove obstructions placed upon a public highway, they have a discretion as to the length of the notice they may first give the offending party to remove the same. It is as much their duty to exercise this incidental discretion for the public good, by determining what is a reasonable notice in the particular case, and by giving it, as it is to remove the obstruction from the road.
    9. Constettction of statutes—when the word “may” means “shall." The word “may” in a statute will be construed to mean “shall,” whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to wh^ch it refers; and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim, de jure, that the power shall be exercised. •
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    This is a petition filed in the McLean circuit court, by Abraham Brokaw, to compel the commissioners of highways of Bloomington township to remove an obstruction from a highway.
    The petition alleges that petitioner is the owner of the east half of section 27, township 23 north, range 2 east, in McLean county, and that there is a public highway running north and south on or near the center line of said section, which public highway has been in use for more than twenty years. The petition then proceeds as follows:
    “Petitioner further represents, that someone has built a stake-and-rider fence across said public highway, causing an obstruction therein, so that it is impossible to travel said highway. Petititioner is informed, and believes, that said obstruction was placed there by permission of the said highway commissioners, and by reason of the said obstruction, and the failure of said commissioners to keep said road in repair, the travel theretofore thereon has been directed and the most of it now passes through petitioner’s land. Petitioner further represents, that said highway commissioners have had full knowledge, for at least six months last past, of the existence of such obstruction in said public highway, and have taken no steps to cause the same to be removed. Petitioner further represents, that he has notified said commissioners, in writing, of the existence of such obstruction, and requested them to take steps to have said obstruction removed; that the said commissioners have failed, refused and neglected, and now absolutely refuse, to act in the premises, or to take any action with reference to said road whatever.”
    The prayer of the petition is for a writ of mandamus, “ordering and directing the commissioners of highways to proceed to have said obstruction removed.”
    Upon the demurrer of the commissioners of highways to the petition, there was final judgment in the circuit court in their favor, and against the petitioner, and that judgment was subsequently affirmed in the Appellate Court for the Third District. The case is now brought here by further appeal.
    Mr. James S. Ewing, and Mr. James S. Neville, for the appellant:
    Section 2 of the Boad and Bridge act of 1883 declares, that “the commissioners of highways shall have charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair, and to improve them as far as practicable;” and by section 5 they are “to exercise such care and supervision over them as the public good may require.”
    Section 67 provides a penalty against commissioners who willfully refuse or neglect their duties, and section 71 provides for a penalty against anyone encroaching upon a public road “with any fence," etc., a fine of not less than three dollars, and an additional "sum of not exceeding three dollars per day for every day he shall suffer such obstruction to remain after notice to remove the same; and further, “that the commissioners, after having given reasonable notice to the person so obstructing such road, may remove any such fence,” etc.
    Section 74 provides, that whenever any person shall enter complaint to any commissioner, it shall be his duty to proceed at once to investigate as to the reason of such complaint, and if the complaint is found to be just, he shall at once proceed to prosecution.
    The commissioners could enter upon the road and remove the obstruction, after proper notice. Appellant could not do this. Section 74 provides, that “all suits for the recovery of any fine or penalty shall be brought in the name of the town, and the commissioners shall prosecute.” In case of failure of the commissioners to do so, the petitioner might have brought a suit to recover the three dollars, in the name of .the town, by giving a bond for costs, etc.; but before doing so, he would have to obtain authority to sue, from the town authorities.
    It may be said that a remedy existed by indictment; but we submit that it would be very questionable whether the person obstructing the highway would be liable to indictment for placing this obstruction. Having done so by permission of the commissioners of highways, certainly no conviction could be had, under the circumstances.
    It is conceded by the demurrer to the petition that appel-lees refuse to perform any part of their duty; not only that, but lent the sanction of their permission to the violation of the law.
    The question here involved is different from that made in County of St. Clair v. People'ex rel. 85 Ill. 396, and Commissioners v. People, 66 id. 889, or any other case decided in this State.
    We can readily understand how mandamus might not be the proper remedy “to remove the obstructions of long standing, maintained as a matter of right by land owners, and believed by the right authorities not to be in the limits of the highway; ” but how it could be said it is not the duty of the highway commissioners to keep the public roads free from obstructions, under all the provisions of the law above referred to, we are unable to understand.
    Messrs. Tipton & Beaver, for the appellees:
    The petition is insufficient in this: that it fails to show that the obstruction complained of is an unlawful obstruction, or that the commissioners, appellees, have a right to remove the same, or that they could maintain an action for obstructing the highway.
    The law is inflexible that mandamus will not lie when a right sought to be enforced is doubtful. The principle is, that the party praying the writ must show a clear right to the remedy sought.
    That the commissioners have a discretion in the management of the highway is too well settled for argument,—in other words, they have control of the highway.’ Old Town v. Dooley, 81 Ill. 255.
    Failure to open and keep in repair a new road, is not, in itself, a breach of duty. Lequat v. People, 11 Ill. 330.
    In the case of Commissioners of Town of Hale ex rel. v. Welch, 73 Ill. 204, it is held: “When an indictment will lie for obstructing a public highway, and will afford a remedy convenient, beneficial and effectual in its nature, as, a mandamus to compel the opening of the highway, a mandamus will not be awarded; and when it appears that a highway has been obstructed after having been opened and traveled by the public, the proper remedy is by a prosecution, under the statute, against the party causing the obstruction, and not by mandamus to compel the commissioners of the highway to remove the obstruction and open the road.” To the same effect, see People v. Curyea, 16 Ill. 547; People ex rel. v. Klokke, 92 id. 138 ; Klokke v. Stanley, 109 id. 197; Hyde Park v. Thatcher, 13 Bradw. 616; Commissioners v. People, 2 id. 27; People v. Dulaney, 96 Ill. 512; People v. Village of Crotty, 93 id. 186;
      Trustees v. Kay, 8 Bradw. 32; Mulliner v. Bronson, 114 Ill. 514; 118 id. 239.
    As to when mandamus lies, see Vest v. Paddington Vestry, 9 B. & C. 461; People v. Davis, 93 Ill. 133; Commissioners v. People, 100 id. 574; County of St. Clair v. People, 85 id. 396 ; People v. Clayton, 88 id. 44; People v. Davis, 93 id. 133.
   Mr. Justice Baker

delivered the opinion of the Court:

Prior to the revision of the statutes, in 1874, the-doctrine as held in this State was, that where a highway had been obstructed after having been opened and traveled by the public, the proper remedy was by prosecution, under the statute, against the party causing the obstructions, and not by mandamus to compel the commissioners of highways to remove the obstructions and open the road. (Commissioners v. People, 73 Ill. 203; Commissioners v. People, 66 id. 339; People v. Curyea et al. 16 id: 547.) The ground upon which the doctrine was chiefly placed was, that there being a complete and adequate remedy by indictment, relief by mandamus was precluded; and another ground stated in some of the eases was, that no statute expressly imposed upon the commissioners the duty of removing such obstructions. .

The ground there is another remedy equally convenient and effectual, and therefore mandamus did not lie, is abrogated by section 9 of the act to revise the law in relation to mandamus, in force July 1, 1874, which provides that “the proceedings for the writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy. ” Whether or not mandamus will lie since the revision of 1874, and under the present road laws, against highway commissioners, to .compel the removal of obstructions from a public road, and if so, under what circumstances it will lie, does not appear to have been passed upon by this court.

The second section of the act of 1883 in regard to roads and bridges in counties under township organization, provides that the commissioners of highways shall have charge of the roads and bridges of their respective towns. Section 71 of the act provides as follows: “If any person shall injure or obstruct a public road by felling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate or wash the same, or shall leave the cuttings of any hedge thereon for more than ten days, they shall forfeit for every such offense a sum not less than three dollars nor more than ten dollars; and in case of placing any obstruction on the highway, an additional sum of not exceeding three dollars per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by any of the commissioners, complaint to be made by any person feeling himself aggrieved. * * * And provided further, that the commissioners, after having given reasonable notice to the owners, or person so obstructing or plowing or digging ditches upon such road, of the obstruction, may remove any such fence or other obstruction, fill up any-such ditch or excavation, except ditches necessary to the drainage of an adjoining farm, emptying into a ditch upon the highway, and recover the necessary cost of such removal from such owner or other person obstructing such road aforesaid, to be collected by said commissioners before any justice of the peace having jurisdiction.” Section 74 provides for the recovery of fines and penalties in the name of the town, and that it shall be the duty of the commissioners to seasonably prosecute for all fines and penalties under the act, and that “in case of a failure of such officers to so prosecute, complaint may be made by any person, provided said person shall, before bringing suit in the name of the town, give a bond for costs, as is provided for in the case of nonresidents. But whenever any person shall enter complaint to any commissioner, it shall be the duty of such commissioner to at once proceed to .investigate as to the reasons of such complaint, and if such complaint is found to be just, he shall at once proceed to prosecution.”

The averments of the petition are not based upon the failure of the commissioners to sue for the fines and penalties imposed by section 71, but upon their neglect and refusal to remove the fence from the public road, and the only relief prayed for is a writ commanding them “to proceed to have said obstruction removed, as is their duty according to law. ”

It is urged, that as the commissioners have charge of the roads in their town, they have a discretion in respect to the matter of their management, and that the courts will not coerce them, by mandamus, in regard to matters that are placed under their control and left to their discretion. Many of the powers given to the commissioners are discretionary, but, in our opinion, the power here in question is not of that character. By section 2 of the act it is made their duty to keep the roads of their town in repair, and section 5 requires them to exercise such care and supervision over such roads as the public good may require. The language of section 71 is, “that the commissioners, after having given reasonable notice, etc.,, may remove any such fence or other obstruction,” etc. We think it was intended by the statute to impose upon the commissioners the imperative duty of removing obstructions from the public highway, and that the word “may” is to be construed as “shall.” The word “may,” in a statute, will be construed to mean “shall” whenever the rights of the public or of third persons depend upon the exercise of the power or the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a public duty is imposed upon public officers, and the public or third persons have a claim de jure that the power shall be exercised. Kane v. Footh, 70 Ill. 587; Fowler v. Pirkins, 11 id. 271; Gillinivater v. M. & A. R. R. Co. 13 id. 1; Schuyler County v. Mercer County, 4 Gilm. 20.

In the statute before us it is clear that a duty is imposed upon public officers, and that the rights and interests both of the public and of third persons are involved, and that they have a claim, as matter of right, that the highway commissioners should exercise the power given them, and the duty devolved upon them of keeping the public road clear and free from fences or other obstructions that render it impossible to travel thereon. It is to be noted that the statute provides the fences or other obstructions are to be removed by the commissioners after they have given the notice mentioned therein. The number of days’ notice thus to be given is not designated, and it is only required it shall be a reasonable notice. There is, then, necessarily some discretion in the commissioners, in this regard. The duty on them to act is imperative, and the discretion given them is merely in respect to a matter which is incidental to the performance of such duty. It is as much incumbent upon the commissioners to exercise this merely incidental discretion, for the public good, by determining what is a reasonable notice in the particular case, and by giving it, as it is to remove the obstruction from the road. When a discretion is abused, and made to work injustice, it is admissible that it shall be controlled by mandamus. Village of Glencoe v. People, 18 Ill. 382; Tapping on Mandamus, (Am. ed.) 66.

The claim is made by appellees, that the court can not tell, from the petition, whether they, appellees, in removing the fence, would be trespassers or not, and that the ease is like the case of Comrs., etc., of Yorktown v. People, 66 Ill. 339. At the time of that decision there was no statute which expressly imposed upon commissioners of highways the duty of removing obstructions in a highway. Besides this, the obstructions in that case were of long standing, were maintained under a claim of right by land owners, and were believed by the road authorities not to be within the limits of the highway. Here, the truth of all the averments in the petition is admitted by the demurrer, and the conceded facts are, that the fence and obstruction are across an existing public highway that has been used as such for more than twenty years, and that such obstruction makes it impossible to travel such highway. It is not perceived how it is possible, under such circumstances, the commissioners, in proceeding to remove the fence in conformity with the provisions of the statute, could be trespassers. The writ of mandamus, ever since the revision of the statute relating thereto, is only issued in a ejear case, and in the discretion of the court. (People v. Weber, 86 Ill. 283.) If, therefore, another case should arise which is like the Yorhtown case, supra, where the alleged obstruction is maintained by a third person under a claim of right, and is believed by the commissioners not to be within the highway, perhaps the court might, under its discretionary power, refuse the writ of mandamus, and leave the petitioner to the remedy by indictment, without he had, •by a suit prosecuted by him in the name of the town, under the privilege given him by section 74 of the Boad and Bridge act of 1883, first established, as against the person maintaining the supposed obstruction, that the locus in quo was in fact a part of the public highway.

Various minor objections are made to the petition. Suffice it to say, that we do not regard them as well made, and that, in our opinion, it shows a good prima facie case for the awarding of a writ of mandamus.

Our conclusion is, that it was error in the circuit court to sustain the demurrer to and dismiss the petition. The judgments of the circuit and Appellate courts are reversed, and the cause remanded to the circuit court.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Thomas F. McDonald et al. v. Mary White et al.

      Filed at Springfield

      October 31, 1889.

    1. Cloud upon title—adverse claim wider a will. Where the adverse party in a suit to remove a cloud upon title is in the possession of the land in dispute, claiming to hold the same under a will which is alleged to be invalid for want of testamentary capacity on the part of the testator, a bill can not be maintained by another claimant to set aside the will as a cloud upon his title.
    2. Probate op will—who may object. A person not pecuniarily interested in the estate of a deceased person at the time of the probate of the will of such decedent, is not entitled to file a bill in chancery for the purpose of contesting the will. A purchaser after the probate of such will can not maintain such a bill.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    This was a bill in chancery, filed in the circuit court of Sangamon county, to contest the validity of the will of Catherine McDonald, deceased. Its allegations are substantially as follows:
    “Tour orators, Thomas F. McDonald and William Kane, respectfully represent unto your Honor that one John McDonald, late of said county, departed this life on or about the first day of December, 1877, testate; that said John McDonald left Catherine McDonald, his widow, and James H. McDonald, Margaret McDonald, (now Margaret Stubblefield,) Patrick McDonald, Andrew McDonald, and your orator, Thomas McDonald, his children, as his only heirs-at-law; that by his will, which said will was duly probated in the county court of San-gamon county, Illinois, said John McDonald bequeathed to his wife, Catherine McDonald, all his real estate of which he died seized, to have and to hold the same for and during her natural life, giving her the rents and profits arising therefrom, and with power to dispose of said real estate by her last will and testament as she should deem proper, but not the power of sale; that among other things it was in said will provided, that in case his wife should fail, neglect or refuse to make a will or testament, he then made this disposition of his estate: To James McDonald, his son, he willed and bequeathed lot 5, of block 3, 'of J. W. Crosby’s addition to the city of Springfield, Sangamon county and State of Illinois.
    “Your orators further represent that on the 16th day of September, 1885, said Catherine McDonald departed this life, leaving what was claimed to be her last will and testament, which said pretended last will and testament was, on the 22d day of September, 1885, admitted to probate by the county court of Sangamon county, Illinois; that by said pretended will of Catherine McDonald, she gave and bequeathed to Mary White, of Springfield, the said lot 5, in block 3, in Crosby’s second addition to the city of Springfield, and all right and interest that she may have in said land. But your orators represent, and charge the fact to be, that at the time of the making of said pretended will, said Catherine McDonald was not of sound mind and memory, or capable of making a will; that on the 21st day of January, 1884, in the county court of San-gamon county, State of Illinois, said Catherine McDonald was, by jury, found to be a distracted person, and a conservator was appointed for her on the 22d day of January, 1884; that after said Catherine McDonald became a distracted person the pretended will was claimed to have been executed, but your orators allege, and state the facts to be, that at the time said pretended will was made she was not of sound mind or memory, or capable of making a will; that the will was not executed by her in the presence of two witnesses, as required by law; that the witnesses did not attest said pretended will in her presence, nor did she declare it to be her last will and testament.

      “Tour orators further aver that the pretended will not being valid, the property before described, under the will of John McDonald, became, on the death of Catherine McDonald, the property of said James McDonald, son of John. McDonald; that James M. McDonald, on the 7th day of May, 1887, conveyed to your orator, Thomas F. McDonald, all his interest in lot 5, block 3, Crosby’s second addition to the city of Springfield, Illinois, and that said Thomas F. McDonald conveyed to William Kane his interest in said real estate, but that said Thomas F. McDonald yet has a half interest in said estate, although it stands in the name of William Kane upon the records.
    “Tour orators further represent said Mary White is in possession of said premises, claiming them under the pretended will of Catherine McDonald.
    “.Tour orators further represent that no parties, except your orators and the said Mary White, whose husband is George M. White, have any interest in said will or in said real estate, and that your orators are the persons interested in said will, and have the right, under the statute of the State of Illinois, at any time within three years after the probate of such will, to appear, by their bill in chancery, and contest the validity of the same, and have an issue at law made up whether the writing purporting to be the will of Catherine McDonald is her will or not.
    “Tour orators further represent that George M. White was appointed administrator of Catherine McDonald by the county court of Sangamon county, with the will annexed, on the 25th day of September, 1885; represent that Patrick McDonald, one of the children of John McDonald, has since died, and left as his children and heirs-at-law, Annie McDonald and Katie A. McDonald.
    “Forasmuch, therefore, as your orators are without remedy in the premises except in a court of equity, and to the end that the said Mary White, and George M. White, administrator, with the will annexed, of Catherine McDonald, deceased, George M. White, who are made parties defendant to this bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived, and to the end that the said instrument in writing, and the probate thereof, may be set aside and declared null and void, as not the last will and testament of the said Catherine McDonald, and that the said real estate before described may be freed from the operation of said pretended will, and that said pretended will may be set aside as a cloud upon the title, and that your orators may have such other and further relief in the premises as equity may require and to your Honor seems meet: May it please your Honor to grant the writ of summons in chancery, directed to the sheriff of Sangamon county, commanding him to summon the said Mary White, George M. White, and George M. White, administrator, with the will annexed, of Catherine McDonald, deceased, to be and appear before this court on the first day of the next September term thereof, to be held at the court house in said county, then and there to answer this bill.”
    The defendants demurred to the bill, and for cause of demurrer alleged that the complainants have not now, nor did they have at the time of thq filing of said bill, any interest in the last will and testament of. the said Catherine McDonald. The court sustained the demurrer, and the cause is here by the appeal of the complainants.
    Messrs. Conkling & Grout, for the appellants.
    Messrs. Patton & Hamilton, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Since it is alleged in the bill that Mary White is' in possession of the premises, claiming under the will, the bill can not be sustained as a mere bill to remove a cloud from the title, (Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Gage v. Griffin, 103 id. 41; Gage v. Schmidt, 104 id. 106;) and therefore it only remains to determine whether the bill can be sustained as a bill to contest a will, under section 7, chapter 148, of the Revised Statutes of 1874, entitled “Wills.” We think it very clear that it can not, and that the demurrer to the bill was properly sustained by the court below.

It is provided in that section, that “when any will, testament or codicil shall be exhibited in the county court for probate, * * * it shall be the duty of the court to receive probate of the same without delay, * * * to grant letters, * * * and to do all other needful acts to enable the parties concerned to make settlement of the estate at as early a day as shall be consistent with the rights of the respective persons interested therein: Provided, however, that if any person interested shall, within three years after the probate of any such will, * * * appear, and by his or her bill in chancery,” etc., then an issue shall be made whether the writing produced is the will of the testator or testatrix. The section also provides: “But if no such person shall appear within the time aforesaid, the probate, as aforesaid, shall be forever binding and conclusive on all parties concerned.”

Manifestly, the words “parties concerned,” mean those upon whom the law imposes the duty of settling the estate, and the words “interested therein,” mean those interested in the settlement of the estate,—that is, those who will be directly affected, in a pecuniary sense, by its settlement; and the words, “any person interested, ” can only mean one of the same class of persons. The interest must be a direct pecuniary interest affected by the probate of the will, for the reference is to an existing interest, and not to an interest which may be subsequently acquired, since, in that event, the language would have been, “or if any one who shall, within three years, be interested, and appear, and by his or her bill in chancery, ” etc. That this is the correct meaning of the words is further manifested by reference to section 14 of the same chapter, where it is provided that “appeals may be taken from the order of the county court, allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace,” etc. It is impossible, in the very nature of things, that others than parties interested in the will.at the time of probate can here be intended; and yet precisely the same reasons exist why the legislature should restrict the right of contest under section 7, as the right of appeal under section 14.

Appellants were not interested in the probate of this will. They were deprived of nothing by it. Their interest was derived by purchase long subsequent to the probate of the will, and is, therefore, not such as is within the contemplation of the statute. Moreover, James M. McDonald never had possession of this property. He never had any apparent title to it. At most, all that he had was the bare right to establish title by successfully contesting this will. But such a right is not assignable, and can not therefore be the subject of a conveyance. Norton v. Tuttle et al. 60 Ill. 130.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    John H. Leslie v. Charles E. Bonte et al.

      Wiled at Springfield

      October 31, 1889.

    Former recovery—judgment in favor of defendant, on the merits— in suit by an assignee. A judgment in favor of the maker of a note, on the merits, in an action by an assignee, is a bar to a subsequent action brought by the payee against the maker. The payee having, by his indorsement, authorized his assignee to sue upon the note, is bound by the judgment against the assignee, upon the merits.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Gabnett, Judge, presiding.
    This was an action of assumpsit, brought by George and John H. Leslie, in the Superior Court of Cook county, on the following promissory note:
    “$3000. Cincinnati, Ohio, August 29, 1888.

    “Six months after date, we jointly or severally promise to pay to Geo. and Jno. H. Leslie, or order, three thousand dollars—value received. Payable at Third National Bank of Cincinnati, Ohio. Chaeles E. Bonte,
    J. Welleb,
    Geoege H. Bonte.”
    Indorsed on back: “Please pay to William Grant, or order. Geo. and Jno. H. Leslie.”
    The note was given for shares of stock in a mining company known as the “Santos Manufacturing and Mining Company.” The note was indorsed and transferred, in Chicago, to William Grant, and delivered to him. After Grant had procured the note, he brought suit upon it in Hamilton county, Ohio, where the makers resided. All of the makers were defendants in that suit, and on February 25,1885, filed an amended answer therein, in which they denied that Grant had received the note before maturity, and set up as a defense, want of consideration, alleging, among other things, that the stock of the Santos Manufacturing and Mining Company which they received from the payees of the note, was fraudulently represented by them to be of value, when in fact it was worthless. To this answer Grant filed a reply, traversing the averments of the answer, and upon the issues thus made up, a trial was had before a jury, upon the merits of the case, resulting in a verdict and judgment in favor of the defendants to the action. October 16, 1886, a year and a half after the rendition of the judgment in Hamilton county, Ohio, George and John H. Leslie brought this action upon the same note, the indorsement which they had originally made on the note, to William Grant, having been erased.
    To the declaration, the defendants filed, with others, a special plea, setting up the judgment rendered in Ohio in bar of the action, and to this plea plaintiffs replied nul tiel record. The case was submitted to the court without a jury, by agreement, and upon the issue presented by the plea setting up the Ohio judgment, after the evidence was all in, the court held the following: “And the court finding that the note was made and assigned in the State of Illinois, and that at the time the note became due, and ever since hitherto, the makers thereof were residents of the State of Ohio, and not of the State of Illinois, held, as a legal conclusion, that a judgment in favor of the defendants, upon the merits, in the suit brought in the State of Ohio, against them, by the assignee, was no bar to the action by the payees, and therefore the plaintiff was entitled to recover.” On appeal to the Appellate Court the judgment of the Superior Court was reversed.
    Messrs. Tenney, Driggs & Hawley, for the appellant :
    As no propositions of law were submitted to the trial judge to preserve his rulings on the questions of law involved, this court must presume that he found the law correctly. Association v. Hall, 118 Ill. 169.
    The payee of the note being no party to the suit in Ohio by the assignee, is not concluded by the judgment therein. Freeman on Judgments, sec. 259; Bigelow on Estoppel, 69, 70; Steinbach v. Insurance Co. 77 N. Y. 498; Drennan v. Bunn, 124 Ill. 175.
    The note not being a payment of the original debt, the creditor may sue upon either the note or the original consideration. 2 Daniell on Neg. Inst. sec. 1272; Stone Co. v. Iron Works, 124 Ill. 623; Archibald v. Argall, 53 id. 307; Eastman v. Porter, 14 Wis. 39.

      Mr. Francis A. Riddle, and Mr. John S. Stevens, for the appellees:
    The trial court having found that the judgment in Ohio was in favor of appellees, upon the merits in the suit brought there by the assignee of the note here sued on, was bound, in law, to hold such judgment a complete bar to the plaintiff’s action. Parks v. Brown, 16 Ill. 454; Zimmerman v. Zimmerman, 15 id. 84; Drake v. Perry, 58 id. 122; Levy v. McCrancy, 1 Morris, (Iowa,) 124; 1 Herman on Estoppel, sec. 144.
   Mr. Justice Craig

delivered the opinion of the Court:

There is but one question presented by this record, and that is, whether the judgment rendered in Hamilton county, Ohio, is a bar to this action. The Appellate Court held that it was. If Grant had recovered judgment on the note in the action in Ohio, the note would have been merged in the judgment, and no other action could be maintained against the defendants, on the note. This principle was clearly established in Wayman v. Cochrane, 35 Ill. 152, where it is said: “The general rule is, that by a judgment at law or a decree in chancery, the contract or instrument upon which the proceeding is based becomes entirely merged in the judgment.” In Freeman on Judgments, (sec. 216,) in discussing this question, the author says: “The weight of authority in the United States shows that whatever may be a cause of action, will, if recovered upon, merge into the judgment or decree.” No judgment was rendered upon the note, against the makers, but the validity of the note was in issue, and the makers had judgment against the owner of the note, upon the merits. The judgment thus rendered, on principle ought to be treated as a satisfaction of the note, and a complete bar to any subsequent action brought upon it by any person in whose hands it might be found.

Zimmerman v. Zimmerman, 15 Ill. 84, is an authority in point. There, Jacob Zimmerman executed his note, payable to Burnley. He assigned it to Peter Zimmerman, and Peter assigned the note to Thomas Croft. Thomas Croft brought suit before a justice of the peace, on the note, and on a trial, judgment was rendered against him for costs. Subsequently Peter Zimmerman brought suit on the note, before a justice, and this court held that the first action brought on the note was a bar to any other action which might be brought on the note against the maker. If the action brought by the second indorsee, on the note, was a bar to a recovery on the instrument in a second action by the first indorsee, upon the same principle, had the payee of the note brought the action, he would have been barred. In Drake v. Perry, 58 Ill. 122, a judgment in favor of the maker, in an action on a note in the name of the payee for the use of the holder, was held to be a bar to a second action on the same note, in the name of the assignee. In Iowa, the Supreme Court of that State, in Levi v. McCraney, 1 Morris, 91, held that a judgment in favor of the maker of a note, on the merits, in an action by the assignee, was a bar to a subsequent action brought by the payee. The same doctrine has been held by the Court of Appeals of Kentucky in'the late case of Seward v. Coppage, 9 S. W. Rep. 389.

No reason occurs to us why the Leslies should not be bound and concluded by the judgment. They indorsed the note, and delivered it, indorsed, to Grant, thus placing the absolute title and ownership in him. By this act they clothed him with authority to sue, in his own name, the makers, on the note. He brought an action on the note, and upon a trial, on the merits, he was defeated. After judgment was rendered, Grant returned the note to the Leslies. Under what arrangement he obtained possession of the note, and returned it, is not shown by the evidence, nor is it material. They can only be regarded as purchasers from Grant. He had the title when the trial occurred in Ohio, and when the judgment was rendered against him. This title he transferred to the Leslies. They, after purchasing the note from him, stood in his shoes. If he could not maintain a second suit on the note, neither could they. They acquired Grant’s title to the note, subject to all defenses the makers might interpose against him. Among these defenses was a judgment in bar of the note.

We think the judgment of the Appellate Court correct, and it will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Minnie Lowentrout et al. v. Robert Campbell et al.

      Filed at Springfield

      October 31, 1889.

    1. Fbaudulent conveyance—subsequent creditors. "Where a debtor makes a conveyance of his property for the purpose of defrauding his creditors, they, whether to be regarded as then existing or subsequent creditors, (if there was, in fact, a fraudulent purpose in making the conveyance,) may have it. set aside. Existing creditors may avoid the conveyance for mere fraud in law, without there being actual or express fraud.
    2. Same—property purchased with money of a wife—title in the husband—subsequent creditors of the latter. Although real estate is paid for out of the separate property of a wife, or with money acquired by her from a source other than her husband, yet if such property is deliberately placed in the name of her husband, a part of which, at least, is so placed there for the very purpose of giving him credit, then, so far as subsequent creditors are concerned, the property will be regarded as that of the husband.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    The following is the opinion of the Appellate Court, filed at the time of rendering the judgment upon which this appeal is prosecuted:

      Wall, P. J.: “In the year 1887, Lowentrout & Shausten were sub-contractors, under one Eager, in the building of a portion of the Lake Erie and Western railroad. Shausten had no property. Lowentrout had the legal title to four lots in the city of Bloomington. One of these lots was purchased from one Miller in 1880, at the price of $3000, and was deeded to the wife of Lowentrout. In 1883 Mrs. Lowentrout conveyed this lot to her husband. The other lots were conveyed, at different times, to the husband. It is contended that all this property, which was quite valuable, really belonged to the wife, because acquired with her means, though the title was in the husband.
    “The contract held by Lowentrout & Shausten proved unprofitable, and it was finally abandoned by them, the unfinished work being completed by Eager, the chief contractor. ■The employes of Lowentrout •& Shausten, who were mostly day laborers and men with teams, quit work some time in July, 1887. They had been at work for months, but the balance due was for the months of June and July. There was a claim, also, in favor of. Harber & Co., who had furnished some scrapers in May. On the 20th of June, 1887, Lowentrout conveyed the real estate above mentioned to his wife, for the expressed consideration of one dollar. The creditors of Lowentrout & Shausten, having obtained judgments on their claims before a justice of the peace, caused transcripts to be filed in the office of the circuit clerk, and obtained executions to the sheriff. These executions were returned nulla bona, and a bill in chancery was filed for the purpose of setting aside the conveyance from Lowentrout to his wife, on the ground that it was fraudulent as against these creditors, complainants in the bill. Upon a final hearing, a decree passed according to the prayer of the bill, and the present appeal questions the propriety of that decree.
    “It is not necessary to consider the question of fact as to whether the property in controversy was purchased with the money of the wife. The evidence on this point, though quite positive and circumstantial, presents a very unusual condition of affairs, and much of it is hard to believe. All the circumstances taken into accoúnt, the story seems unreasonable in many of its details. But conceding that the money did belong to the wife, and that she acquired it from a former husband and by her own exertions, as she claims, it can not be doubted that the property was deliberately placed in the name of the husband, and that a part of it, at least, was so placed for the very purpose of giving him credit. It must therefore be regarded, so far as these creditors are concerned, as his property. Hochett v. Bailey, 86 Ill. 74.
    “The evidence leaves no doubt that the conveyance was for the purpose of defrauding the creditors of Lowentrout & Shausten, and whether they are to be regarded as existing or subsequent creditors, if there was, in fact, a fraudulent purpose in making the conveyance, they may have it removed out of their way. Morrill v. Kilner, 113 Ill. 318; Moritz v. Hoffman, 35 id. 553; Bump on Fraud. Con. chap. 13.
    “We think, however, the creditors may well be regarded as existing at the time of the conveyance, and though there was no express fraud, but merely fraud in law, they might ask the relief here granted. Ibid. chap. 18.
    “The decree is responsive to the merits of the case, and must be affirmed.”
    Mr. James S. Ewing, and Mr. William E. Capen, for the appellants:
    The proofs show that the property belonged to Minnie Low-entrout—that it was purchased with her money, and that even when the legal title was in her husband, the equitable title was in her.
    Even if the grantor be the owner of real estate, having both the legal and equitable title thereto, a voluntary conveyance to his wife is not void, if the grantor does not intend to1 hinder and delay his creditors at the time of making the conveyance ; and in any case, such conveyance is not fraudulent as to debts afterward contracted by the grantor.
    Mere indebtedness at the time will not, per se, establish that a voluntary conveyance was void, even as to existing creditors, unless the other circumstances of the case justly create a presumption of fraud, actual or constructive. Wooldridge v. Gage, 68 Ill. 157; Moritz v. Hoffman, 35 id. 553; Uhlich v. Muhlke, 61 id. 440; Harman v. Harman, 63 id. 582; Patrick v. Patrick, 77 id. 555; 2 Kent’s Com. p. 174.
    Complainant must prove that the grantee knew of the insolvency and indebtedness of the grantor, and that the grantor intended to hinder, delay or defraud creditors. Trustees of Schools v. Mason, 11 Bradw. 454; 15 id. 386.
    In any event, equity will uphold title in the wife as against creditors not misled by the title standing in the husband. Sweeney v. Damron, 47 Ill. 450.
    As to existing creditors, fraud is an inference of law, while as to subsequent creditors there must be fraud in fact. Wait on Fraud. Con. see. 89, p. 138; Cook v. Johnson, 12 N. J. Eq. 54; Baker v. Gilman, 52 Barb. 38; Quimby v. Dill, 40 Me. 528.
    A subsequent creditor acquiring his claim with notice of the conveyance, can not attack it as fraudulent. Kane v. Roberts, 40 Md. 590 ; Sheppard v. Thomas, 24 Kan. 781; Williams v. Banks, 11 Md. 198.
    An unbroken guaranty for the payment of a debt, a warranty of title to land, and the like, are not subsisting debts, within the meaning of the cases as to which a voluntary conveyance by the grantor, warrantor, etc., would be fraudulent per se, but in such cases actual fraud should he proven. Jackson v. Meyers, 18 Johns. 425; Steward v. Jackson, 8 Cow. 406.
    Debt for costs does not accrue until judgment is rendered for them, and claimants for costs are subsequent creditors. Inhabitants v. Aldrich, 8 Gray, 515; Ogden v. Prentice, 33 Barb. 160.

      . The case in 8 Gray, above referred to, also decides that a conveyance, only voluntary, can only be impeached by creditors who were such at the time of the conveyance.
    In the case of Miller v. Miller, 23 Me. 22, it is decided that credits must be applied to extinguish the earlier items in the account, and must be applied to the extinguishment of the oldest debts. This, of course, is the general rule laid down by all the decisions.
    Messrs. Williams & Capen, Messrs. Benjamin & Morrissey, Mr. J. P. Lindley, Mr. W. B. Carlock, Mr. H. R. Benson, and Mr. E. E. Donnelly, for the appellees:
    The conveyance made June 20, 1888, by Lowentrout to his wife, of all his property, worth several thousand dollars, for the nominal consideration of one dollar, only, as expressed in the deed, was prima facie fraudulent as to his then existing creditors, without reference to his intent or that of his wife. Freeman v. Pope, (L. R.) 5 Ch. 545 ; Kehr v. Smith, 20 Wall. 21; Kipp v. Hanna, 2 Bland, 33; Emerson v. Bemis, 69 Ill. 541.
    When the circumstances surrounding the execution of a conveyance lead to the inference of fraud, the burden of disproving. it is on those upholding the conveyance as against the grantee’s creditors. Zimmer v. Miller, 64 Md. 296; Bushaner v. Geilfuss, 65 Wis. 377; Frank v. King, 121 Ill. 250 ; Beeson v. Eveland, 26 N. J. Eq. 468; Post v. Stiger, 29 id. 556.
    Where the husband has taken.the title to property in his own name, with his wife’s knowledge, and she has for years permitted him to represent the property to be his, and, upon such apparent ownership, to obtain credit and standing, equity will not protect the property from the husband’s creditors, even if the design to create a trust in favor of the wife were clearly established by the evidence. Beeson v. Eveland, 26 N. J. Eq. 468; Hockett v. Bailey, 86 Ill. 74; Budd v. Atkinson, 30 N. J. Eq. 530.

      All the appellees were creditors, within the meaning of the Statute of Frauds, although portions of the claims of most of them were not due, and, to a certain extent, were contingent at the time of the transfer. Walradt v. Brown, 1 Gilm. 397; Bongard v. Black, 81 Ill. 186; Choteau v. Jones, 11 id. 318; Hatfield v. Merod, 82 id. 113; Jackson v. Seward, 5 Cow. 71; Howe v. Ward, 4 Greenlf. 195; Van Wyck v. Seward, 18 Wend. 375; McLaughlin v. Bank, 7 How. 229; Bibb v. Freeman, 59 Ala. 615; Mattingly v. Wulke, 2 Bradw. 169; Bay v. Cook, 31 Ill. 336; Ridor v. Kidder, 10 Ves. 360.
    When a deed is set aside as void as to existing creditors, all the creditors, prior and subsequent, share in the fund pro taxito. Weber v. Smith, 20 Wall. 31; Whittington v. Jennings, 6 Sim. 493; Freeman v. Pope, (L. R.) 5 Ch. 538; May on Fraud. Con. (2d ed.) 62.
    A conveyance intended to defraud creditors is voidable, not only as to existing, but as to future, creditors. Partridge v. Stokes, 66 Barb. 586; Morrill v. Kilner, 113 Ill. 318; Shand v. Hanley, 71 N. Y. 319; Horn v. Volcano Co. 13 Cal. 62; Hutchinson v. Kelly, 1 Rob. 123; Stileman v. Ashdown, 2 Atk. 481; Freeman v. Pope, (L. R.) 5 Ch. 538.
    A conveyance intended to defraud creditors is not relieved of its fraudulent character by the mere fact that it is placed upon record, if the creditor has no actual notice, and the conveyance, without his negligence, operates as a surprise upon him. Bump on Fraud. Con. (3d ed.) 319; Moore v. Blondheim, 19 Md. 175 ; Burdick v. Gill, 7 Fed. Rep. 670; Churchill v. Wells, 7 Cold. 372.
   Per Curiam :

We fully concur in the foregoing opinion, and we find it unnecessary to add anything to what is therein said.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Daniel R. Klinger v. The People ex rel. Elijah Conkle et al.

      Filed at Springfield

      October 31, 1889.

    1. Drainage law—the different systems—“combined drainage,” and '"individual drainage”—of their respective qualities. There is a distinction between the “system of combined drainage” and that of “individual drainage.” Under the latter, an individual may drain his own land, if necessary, through the lands of others, whether the latter are benefited or not, by making compensation therefor as the law provides. This system requires no district organization.
    2. Where there are lands so related that the same system will benefit all of them, more or less, and it is proposed to construct the system at the expense of all the owners, in proportion to the benefits to their respective lands received, they may proceed to accomplish it without resort to condemnation, in the mode prescribed; and this is the system of combined drainage.
    3. The combination referred to is not of ditches, though that will generally be required, biit of contribution to the expense of constructing, extending, improving and maintaining them; hence, organization is necessary, since a number of persons have a commpn, though not necessarily an equal, interest. All who are so concerned have a right to be heard, and may favor or oppose the proposition.
    '4. Same —formation of district—what lands a district may include. If the requisite proportion, in number and interest, of the owners of lands petition for it, a district may be formed, which is by the law intended to embrace the lands to be benefited, and none other. The lands are required to be classified according to the relative benefit they receive, and assessments are made upon them in that proportion for the necessary means to carry on and complete the work.
    5. A drainage district was attempted to be organized, embracing all the lands of a township, and the commissioners divided the same into four areas of land or districts, one of which embraced sixty-four sections of land, and included an incorporated village having independent powers of its own in respect to drainage, and much land requiring no drainage. The ditch for one shed was about five miles long, and did not and could not, by any connection or combination, be made to aid in draining an acre of either of the other areas or districts: Held, that the districts so attempted to be formed were not such, as is contemplated by,the law, the owners of land in any one of the sheds not being -taxable for the ditches or drains in either of the others.

      6. Ail the lands in the township could not be embraced in one district, because so small a portion of them would be benefited by the same work or system of works; and as the affairs of such a district could not be administered according to the provisions of the act of 1879 or that of 1885, the formation of such a district would not be validated by the later act.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Piatt county; the Hon. James F. Hughes, Judge, presiding.
    Mr. A. T. Pipher, and Mr. S. R. Reed, for the appellant.
    Mr. Charles Hughes, State’s Attorney, and Mr. William: E. Lodge, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court:

When this ease was decided by the Appellate Court of the Third District, the following opinion was delivered by Mr. Justice Pleasants of that court:

“This was an information in the nature of a quo warranto, filed by the State’s attorney of Piatt county, against Klinger, Vandervort and Wooding, charging, in separate counts, that respondents usurped the office of drainage commissioners of the town of Blue Ridge; of drainage commissioners of drainage district No. 1, of said town; and of drainage commissioners of, in and for certain pretended drainage districts or systems of drainage, which they have designated as drainage system No. 1, No. 2, No. 3-and No. 4, respectively, and without right or authority have proceeded to lay out, survey, plat and construct ditches therein, and to levy taxes, assessments, etc., therefor.

“Respondents filed a plea averring that Blue Ridge was a town in Piatt county; that said county has for years been under township organization; that in 1883 there was presented to the town clerk of said town, with the requisite bondj. a petition, signed by a majority of adult owners of all the lands in said town, being also owners, in the aggregate, of more than one-third of all said lands, praying that a drainage district he organized, embracing all the lands in said town, for the purpose in that behalf in the statute mentioned; that due notice thereof was given to the then commissioners of highways of said town; that they proceeded regularly under the provisions of the Drainage act,-approved May 29, 1879, to organize, and did so organize, the district prayed for, as drainage district No. 1, in said town; that no other drainage district has been organized in said town, and that respondents are now the commissioners of highways of said town. The pleas set out at great length the several steps and proceedings taken by all concerned in the alleged organization, and the several provisions of the act above referred to, and of that approved June 27,1885, by which, as they claim, the same were respectively directed or authorized.

“A demurrer to the plea, assigning divers causes therefor, was sustained. ¡Respondents Vandervort and Wooding then filed a disclaimer, and declined to defend "further, and Klinger abiding by the plea, a judgment was entered of ouster and for costs against Klinger and Vandervort, Wooding having only just succeeded Wheeler (a former co-respondent) as commissioner of highways, and been substituted for him as respondent herein. From that judgment Klinger appealed, and brings the record here for review.

“On the part of the People it is contended that the plea shows the district therein referred to, never had a legal organization; and further, that if it had,, the respondents abandoned it, and have undertaken, of their own motion, without any petition, to create four distinct districts, under the name of ‘Systems of Drainage.’

“The plea states, that upon the organization of said district, the commissioners, in the discharge"of their duties, went upon and examined all the lands within it, to determine upen a plan of drainage therein, and upon such examination, being aided therein by a competent engineer, found the surface of the land in said district, embracing the whole town, was such as to constitute four distinct water sheds, having different directions for the natural flow of the surface waters thereof, respectively; that the highest land was near the center of said district, east and west, but considerably south of the center, north and south, and extended thence northward, from which divide the natural flow of such water was about as follows: From the east and south-east parts of said district to the south or east of south, into Madden Eun; from the north-east part to the north-east through a natural depression leading into the Sangamon river; and on the west side of the divide from the northern part to the south-west, by way of Trinkle slough, into Salt creek, and from the central and southern parts also, to the south-west, into Goose creek; that to provide a complete system of drainage for the district it would be necessary to construct main ditches for outlets, commencing at the divide near the center' of the township, and leading, respectively, into Madden Eun, Sangamon river, Goose creek and Salt creek; that no one continuous line of ditch could be constructed so as to provide efficient means of drainage for the lands embraced in the district, as organized; that the commissioners determined upon a plan of work for chief or main outlets for the water of the district which flowed by way of Goose creek and Trinkle slough, and found it would require four main ditches as outlets to four separate areas of low and wet land, having divides or swells of higher land between them,—two of said areas flowing their water into Goose creek, but discharging at different points, and the other two into Trinkle slough, but also at different points.

“From these statements in the plea we understand it to be conceded, as it clearly is in the argument, that it is not practicable to connect or combine a system of ditches that would drain the land of the district, as organized, or any two of the four water sheds first above mentioned. Each of these will require a system of drainage entirely separate from and independent of those of all the others.

“The question, then, is, whether the statute authorized the organization into one drainage district of lands so related, or, rather, so unrelated, with respect to drainage. We are of the opinion it did not. We understand that the ‘system of combined drainage’ is distinguished by the statute from the system of ‘individual drainage,’ which is therein recognized, though not specifically so named. An individual proposing to drain his own lands at his own expense, may do so, if necessary, through the lands of others, whether the latter are thereby benefited or not, making just compensation therefor, as the law provides. The drain or drains constructed for that purpose will constitute a system no less than in the case of combined drainage, but it will require no district organization. But where there are lands so related that the same system will benefit all of them, more or less, and it is proposed to construct it at the expense of all the owners, in proportion to the benefits to their respective lands received, they may proceed to accomplish it without resort to condemnation, in the mode prescribed. That is the system of combined drainage. The combination referred to is not of ditches, though that will generally be required, but of contribution to the expense of constructing, extending, improving and maintaining them. Here organization is necessary, since numbers of persons have a common, though not necessarily an equal, interest. All who are so concerned have a right to be heard, and may favor or' oppose the proposition, as each sees fit. If the requisite proportion, in number and interest, of the owners of such lands petition for it, a district is formed, which is by the law intended to embrace the lands to be benefited, and no other. Commissioners are provided to plan and execute. The lands are classified according to the relative benefit they receive, and assessments are made upon them in that proportion for the necessary means, and so the work is done and maintained.

“Without referring specifically to the provisions of the statute, or stating more minutely its practical operation, it must 1 be obvious, from this general view of the scheme, that for a good many reasons the district No. 1, in this case so-called, can not be such as is authorized or contemplated by it. As attempted to be organized, it is uncommonly large of its class, embracing about sixty-four sections of land, and including an incorporated village having, by law, independent powers of its own in respect to drainage, besides , much that needs no drainage and will not be drained. The ditch proposed for the north-eastern water shed will be about five miles in length. It will not, of itself, nor can it by any connection or combination, be made to aid in draining an acre of either of the others. On principle, the owners of lands in the south-western water shed should have nothing to say about nor should their lands be taxed for it. So of those owning lands in each of those four water sheds as to all the others. We think the statute conforms to this principle, and therefore that the plea shows no proper or sufficient petition for a district comprising the whole four or either of the areas affected by the separate systems, respectively; that all the lands in the town can not be embraced in one district, because so small a portion of them would be benefited by the same work or system of works; that the affairs of such a district could not be administered according to the provisions of the act of 1879 or of that of 1885, and hence the proceedings taken for its organization can not have been validated by the later act.”

Concurring in the reasoning of the foregoing opinion and in the conclusion reached therein, we adopt the same as the opinion of this Court. Thé judgment of the Appellate.Court is affirmed.'

Judgment affirmed

      Daniel R. Klinger, Impl., v. The People, etc.
      Magbudeb, 3.: All the questions involved in the present case are discussed and decided in the foregoing case of Klinger, Impl. etc. v. The People, etc. The rulings in that case must govern in this case. The judgment of the Appellate Court is, therefore, affirmed.

        Judgment affirmed.


author: Mr. Justice Bailey

text:
    Emily A. Green et al. v. The City of Springfield.

      Filed at Springfield

      October 31, 1889.

    1. Practice—after reversal and remandment—of further proceedings in the trial court. Where the judgment of the county court dismissing a proceeding to confirm a special tax for the paving of streets is reversed, and the cause remanded, with direction to allow an amendment which had been refused, and for further proceedings in conformity with the views of this court as expressed in its opinion, the remanding order will not preclude the filing of further objections or the raising of new issues in the trial court.
    2. In case of a reversal and remanding order with specific directions, the court below will have no discretion, but must carry out the mandate of this court. Beyond such directions the lower court is at liberty to take further proceedings, with this limitation, that in so doing it must be guided by the rules of law established by this court in its decision.
    3. After judgment of reversal by this court, and a remanding order for further proceedings in conformity with the opinion, the parties will not be allowed to present the same objections or issues as before, although in a different form. Only as to such questions as are substantially new, will the case be open for further consideration.
    4. Appeals—of a second appeal—what questions to be considered. Where the question of the constitutionality of an ordinance for the levy of a special tax to improve certain streets is necessarily involved in the decision of this court, and the question is settled thereby, it can not be again considered when the case is brought to this court a second time.
    5. Special taxation—for local improvement—of the ordinance—-its sufficiency. A city ordinance, after providing for the construction of pavements of a certain kind upon certain streets, and for the payment of the amount required for paving the street intersections, etc., by general taxation, directed as follows: “The remainder of the cost of said improvements shall be paid for by special taxation, and for that purpose a special tax, equal in amount to the whole cost of paving that portion of said streets, or parts of streets, and alleys, not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse or street railway company, and the cost of all materials required therefor, and all other expenses connected with the same, in-eluding the cost of levying and collecting said special tax, is hereby ordered to be levied, assessed and collected upon and from the real estate, lots, etc., abutting upon the line of said streets, etc., in proportion to the frontage thereof upon the streets, or parts of streets, and alleys, ordered to be paved as aforesaid," and also provided the usual steps for the making and levy of such tax, etc.: Held, the ordinance was in substantial conformity to the law, and was not open to the objection that it failed, in legal effect, to levy the tax.
    6. Where the cost of a local improvement is to be raised, in whole or in part, by special taxation, the ordinance itself must either state the sum or give the data by which the commissioners can fix the amount to be raised, and when so fixed and ascertained in conformity with the ordinance, it is conclusive upon the property owners.
    7. Where the ordinance directs to be levied the total cost of the improvement, not including the cost of fiaving street intersections and the right of way of railway companies, and provides for its assessment upon the abutting property in proportion to frontage, it fixes the total tax to be levied. The statute provides for the ascertainment of such cost after the passage of the ordinance, viz., by a committee.
    8. , Same—/roroiage—os the basis of the assessment. On a proceeding to confirm the assessment of a special tax upon contiguous property to pay for the paving of streets, evidence tending to show that the taxes levied were unequal, on the basis of the superficial area of the property, its value, or the amount of the benefits resulting to it, is wholly immaterial, as the proper basis of the assessment is the frontage of the property on the street to be improved.
    9. In such case, however, a property owner may show that his lot assessed has a smaller frontage than that estimated by the commissioners, and therefore the assessment is too high.
    10. Same—commissioners’ report—as evidence. In a proceeding of that character, the commissioners’ report of their assessment is prima facie evidence of a valid assessment, and when there is no evidence tending to rebut the same, an instruction to the effect that their report is competent evidence, the same as if the commissioners were on the stand testifying to the facts therein stated, even if erroneous, is harmless, and no ground of reversal of a judgment of confirmation.
    Appeal from the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding.
    Messrs. Gross & Broadwell, for the appellants:
    The first question is, does the ordinance make a special tax levy. In City of Sterling v. Galt, 117 Ill. 11, this court clearly intimates that the ordinance must fix the amount. A tax levy imports the ascertainment and fixing of the amount to be raised. This is essential to a valid levy. Moore v. Foote, 32 Miss. 469.
    Until the report of the committee, of the cost, had been made to and approved by the city council, there was no basis of a tax levy. The ordinance was but a preliminary, when its language is considered.
    The ordinance is void, because it does not conform to the constitutional provision and the statute thereunder. Const. 1870, art. 9, sec. 9; 1 Starr & Curtis, p. 487, sec. 117.
    This court has never held, in terms, that the apportionment of a special tax levy, in proportion to the feet of abuttal, is a “just and equitable mode” of securing practical equality and uniformity in the distribution of a tax levy.
    The burden of proof was on the city to show the assessment was right, and the report is only prima facie evidence of that fact. Fagan v. Chicago, 84 Ill. 227.
    The court instructed the jury, “that the report of the commissioners herein is competent evidence of the facts therein stated, as if the commissioners were upon the stand testifying to the facts therein stated.” This was erroneous, as the report was only prima facie evidence. It could not have the weight of the evidence of these men testifying on the stand.
    Messrs. Conkling & Grout, and Mr. T. McGrath, for the appellee:
    All the questions as to the validity of the ordinance and the special tax by frontage, were fully and fairly before this court, and considered by it, when the case was here before. The objections filed in the county court since the case was here, while couched in new language, present no new question. See Newberry v. Blatchford, 106 Ill. 593.
    It seems to us beyond question, that the former decision of this case as to the validity of the ordinance and the special tax is conclusive on the present appellants. They have no right to bring the case here again for a re-trial of this question, or for the purpose of assigning, error on any question then before the court, or which might have been raised, or which did not arise since it was here. This court has repeatedly So held. Ogden v. Larrabee, 70 Ill. 510; Rising v. Carr, id. 596; Moshier v. Norton, 100 id. 63 ; Newberry v. Blatchford, 106 id. 584; Smyth v. Neff, 123 id. 310.
    The first question presented is, does the ordinance, in legal effect, levy a special tax. As to the form and language of the ordinance, it is the same as those sustained in Enos v. Springfield, 113 Ill. 65, Springfield v. Green, 120 id. 269, and Wilbur v. Springfield, 123 id. 395.
    Under their second head, counsel for appellants discuss the question of the inequality of taxation by frontage. This question has been so often passed upon by this court, and this mode of special taxation sustained, that we will simply cite the following cases: White v. People, 94 Ill. 604; Craw v. Tolono, 96 id. 255; Enos v. Springfield, 113 id. 65; Galesburg v. Searles, 114 id. 217; Watson v. Chicago, 115 id. 78; Wilbur v. Springfield, 123 id. 395; Springfield v. Green, 120 id. 269.
    The only proper question before the jury was, whether the basis of the assessment was upon the frontage of the lots, and the evidence on that question was the roll itself.
    The instruction, if erroneous, did no harm, because, under the testimony, no other finding could possibly be made.
   Mr. Justice Bailey

delivered the opinion of the Court:

This is an appeal from an order of the County Court of Sangamon county, confirming a special tax levied upon the property of the appellants, for the purpose of paying the expense of paving certain streets and alleys of the city of Springfield. • This is the second time the case has been before this court. The former appeal was brought by the city of Springfield, and was from an order of the county court sustaining certain objections to said tax and ordering the same to be annulled and the proceeding dismissed. Upon full consideration of the questions then presented, said former order was reversed and the cause was remanded to the county court with directions to allow a certain amendment to the assessment which that court had refused, and for further proceedings in conformity with the views expressed in the opinion delivered upon the decision of that appeal. City of Springfield v. Green, 120 Ill. 269. The cause being reinstated in the county court, said amendment was allowed, and the appellants, at the same time, by leave of the court, filed various other objections to said tax, in addition to those upon which the former hearing" was had. At the subsequent hearing, these, as well as those previously filed, were overruled, and the order from which the present appeal was taken was thereupon entered.

The point is made that the remanding order precluded the filing of further objections or the raising of new issues. With this view we do not concur. In so far as the remanding order contained specific directions, the court below had no discretion, but was bound to carry out the mandate of this court. Such however was not the character of the order, except so far as it directed the allowance of the amendment. Beyond that, the county court was at liberty to take further proceedings, with this limitation, 'that in so doing, it should be controlled and guided by the rules of law established by this court in its decision. That certainly did not preclude the parties from raising questions, if any existed, which had not been submitted to and had not received the consideration of this court.

It should be observed, however, that a very considerable portion, at least, of the objections filed since the decision of the former appeal, are, in substance, but repetitions, with various changes of phraseology, of the identical objections formerly urged, or a statement, in more ample form, and largely by way of argument, of the grounds upon which said objections are sought’ to be based. It is manifest that a mere change or amplification of the statement of an objection, so long as the objection itself remains in substance the same, can not take it out of the rules of law already established in this case. It is only as to those which are substantively new, that the case is still open for consideration.

The first of the objections recently filed and now insisted upon is, that the ordinance under and by virtue of which said special tax is sought to be enforced, is unconstitutional, illegal and void, the ground of the objection, when shorn of its verbiage, being, simply, that the tax which it imposes is not assessed upon “contiguous property,” within the meaning of the constitution. The levy ordered by the ordinance was upon the property “abutting” upon the streets and alleys to be paved, such levy to be in proportion to the frontage of the property on such streets and alleys. The point now made is, that the “abutting property” is not the “contiguous property” upon which section 9 of article 9 of the Constitution permits special taxes for improvements to be levied. While the constitutional question was not discussed in this precise aspect in our former opinion, that aspect of the question was necessarily involved in the decision, and is therefore as completely settled as it would have been if it had been made the subject of special discussion. If this were otherwise doubtful, it becomes very apparent upon examination of the long line of decisions cited in the opinion. In those decisions, the constitutionality of special taxes is considered in all its aspects, including the one above suggested, and is so thoroughly and irrevocably settled as to preclude all further argument.

The next objection is, that the special tax in question has not been legally levied. The point of the objection seems to he, that the provisions of the ordinance are only preliminary to the imposition of the tax, but do not, in legal effect, levy the tax. The ordinance, after ordering the construction of pavements of a certain description upon certain specified streets and alleys, and providing for the payment of the expense of paving the street intersections and crossings by general taxation, and also for the payment of the expense of paving the right of way of so much of said streets as were included in the right of way of steam, horse or street railway companies by such companies, it provides and directs as follows: “The remainder of the cost of said improvements shall be paid for by special taxation, and for that purpose, a special tax, equal in amount to the whole cost of paving that portion of said streets or parts of streets and alleys, not included in the intersections and crossings aforesaid, nor in the right of way of any steam, horse or street railway company, and the cost of all materials required therefor, and all other expenses connected with the same, including the cost of levying and collecting said special tax, is hereby ordered to be levied, assessed and collected upon and from the real estate, lots, parts of lots and tracts of land abutting upon the line of said streets so ordered to be paved, in proportion to the frontage thereof upon the streets or parts of streets and alleys ordered to be paved as aforesaid.”

The ordinance also appointed a committee consisting of three men, and instructed and directed them to make a separate estimate of the cost of paving the several streets, parts of streets and alleys ordered to be paved, including the cost of the labor and materials and all other expenses attending the same, and also a separate estimate of the cost of paving the intersections or street crossings, and report the same to the city council at its next subsequent meeting, or as soon thereafter as might be. It also provided that, upon the filing of the report of said committee and the approval thereof by the city council, the city attorney be directed to file the proper petition in the County Court of Sangamon county, for proceedings to assess that portion of the cost of said improvements required to be raised by special taxation, in the manner provided by article 9, of the general law for the incorporation of cities and villages.

It appears that said committee made its report, and that said report was approved by the city council. A petition was thereupon presented to said county court on behalf of said city by the city attorney, reciting said ordinance, the report of said committee and its approval by the city council, and praying that the cost of said improvements be assessed in the manner provided by law. Upon the hearing of said petition, the court appointed three commissioners to make the assessment, and said commissioners having made the assessment of a special tax upon the abutting property, in accordance with the provisions of said ordinance, and said assessment having been reported to said court, an application was made by said city for the confirmation of said assessment, resulting in the entry of the order brought to this court by the present appeal.

The proceedings in relation to the assessment and levy of said special tax seem to have been conducted in substantial conformity with the provisions of article 9 of the general law in relation to the incorporation of cities and villages, and we are therefore unable to see any force in the objection to said proceedings raised by the appellants. There can be no doubt we think of the sufficiency of the ordinance. As we said in City of Sterling v. Galt, 117 Ill. 11: “When the cost of a local improvement is to be raised' in whole or in part by special taxation, the ordinance itself must either state the sum or give the data by'which the commissioners can fix the amount to be raised, and when so fixed and ascertained, in conformity with the ordinance, it is' conclusive on the property owners. In such case, the municipal authorities, by ordinance, practically fix and determine in advance the amount the property specially benefited is to pay, and the amount thus fixed is not open to review. This being done, all the commissioners have to do is to so assess the property benefited as to raise the required sum.” We are of the opinion that the ordinance in the present case was a compliance with all the requirements of the rule as above stated. It fixed the total tax to be levied, viz., the total cost of the improvement, not including the cost of paving street intersections and the right of way of railway companies, and provided for its assessment upon the abutting property in proportion to frontage. If it be said that the amount of the tax can not be regarded as being definitely fiied until the total cost of the improvement is ascertained, it may be answered that the statute provides for the ascertainment of such cost after the passage of the ordinance, viz., by a committee, and that mode was pursued in this case. It may be further observed that assessments of special taxes by ordinances substantially like the one in this case have been repeatedly sustained by this court. Enos v. City of Springfield, 113 Ill. 65; Wilbur v. City of Springfield, 123 id. 395.

The only remaining question pressed upon our attention relates to the decision of the court overruling the appellants’ motion for a new trial. It is urged that said motion should have been granted, first, because of an erroneous instruction given to the jury at the instance of the city, and second, because the verdict was contrary to the evidence. Some complaint in this connection is made of the rulings of the court in admitting evidence on behalf of the city.

Objection was made to the admission of the ordinance in evidence before the jury, the objections urged being in substance the same already considered. Said objections being, as we have seen, without foundation, there was no error in overruling them. Objection was also made to the admission of the assessment roll, the grounds of objection urged being, that it failed to show an assessment upon all the property “in contiguity” with the proposed improvement; and also that the commissioners had no power or authority under the law to levy any special assessment. The first of' these objections has already been shown to be groundless, and all that need be said in relation to the second is, that as there was a valid ordinance imposing the special tax, the authority of the commissioners to make the assessment was clearly given by the statute. It follows that these objections also were properly overruled.

The evidence offered on behalf of the appellants consisted of the evidence of six witnesses, who testified that, in their opinion, the property of the appellants was assessed more than it should be, or, in other words, that the tax on their property -was more than their just proportion of the entire cost of the improvement. These witnesses all admit, however, in substance, that the tax was levied on the appellants’ property in proportion to'its frontage upon the streets to be improved. The inequality therefore of which these witnesses complain was based, not upon the frontage of the property assessed, but upon its superficial area, its value, or the amount of the benefits resulting to it from the proposed improvement. It is clear that evidence of this character was wholly immaterial. It had no tendency to show that any of the appellants’ property was assessed more than its just proportion basing the estimate upon its frontage, and that was the only inquiry properly open to the appellants. For instance, they might have shown, if they could, that any particular property assessed had a smaller frontage than that estimated by commissioners, and that the assessment was therefore too high, but tha testimony offered had no such tendency. It was in the nature of an attack upon the policy of the Constitution and statutes authorizing the levying of special taxes upon contiguous property, rather than upon the accuracy or fairness of this particular assessment. The evidence then offered by the appellants being wholly immaterial, there could be no question before the jury as to the preponderance of the evidence. The assessment roll was prima facie evidence of a valid assessment, and there being no evidence having any legitimate tendency to the contrary, the only possible verdict was the one given by the jury.

The instruction complained of was, in substance, that the report of the eommissiouers was competent evidence, the same as if the commissioners were upon the stand testifying to the facts therein stated. It is unnecessary for us to determine whether this instruction was proper or not. The commissioners’ report was undoubtedly prima facie evidence, and as there was no material evidence tending to rebut it, the instruction, if erroneous, can have wrought no prejudice to the appellants. Had the jury been properly instructed, or had they "been permitted to consider of their verdict without instruction, we can not presume that any different result would have been .reached.

We are of the opinion that there is no material error in the record, and the order of the county court confirming the assessment will be affirmed.

Order affirmed.