author: Mr. Justice Shope

text:
    Myra A. Price et al. v. The Dime Savings Bank et al.

      Filed at Ottawa March 26, 1888.

    1. Pledge—suretyship—ledge for the debt of another—change in the contract of principal—extension of time—release of surety or pledge. Where a third person pledges his property as a security for the payment of a debt or obligation of another, such property will stand in the position of a surety of the debtor, and any change in the contract of the principal which- would discharge a surety, will operate to release and discharge the property so held as collateral. This rule also applies to mortgages made by one person to secure the debt of another.
    2. After the pledge of bank stock belonging to A, to secure a debt of B to C, a settlement was had between B and 0, and B gave C new notes falling due at later dates, and B left the bank stock as security for the new notes without the knowledge or consent of A: Held, that the change in the terms of the original contract without the consent of A, was sufficient to release his undertaking that his property should stand as security for its performance.
    3. Where, however, a debtor pledges collaterals of his own as security for the payment of a note or bill, the extension of the time of payment will not extinguish his creditor’s lien on the collaterals.
    4. If a creditor, by a valid and binding agreement, without the assent of a surety, gives further time for payment to the principal debtor, the surety will be discharged.
    5. Consideration—for extension of time of payment. The surrender of old notes secured by a pledge of collaterals belonging to a third person, and the cancellation of such notes, is a sufficient consideration for the giving of new notes of the principal debtor, payable at a certain date, and such surrender and cancellation will put it out of the power of the creditor to enforce payment of the old notes before the maturity of the new notes.
    6. Remandment oe cause—whether necessary. Where the Appellate Court reverses a decree of the trial court on the merits, holding there can be no recovery, it will not be necessary to remand the cause for further proceedings. If the grounds of the reversal, however, do not go to the extent of denying a right of recovery, the cause may properly be remanded.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Bureau county; the Hon. George W. Stipp, Judge, presiding.

      This is a bill filed in the circuit court of Bureau county, by Myra A. Price and Lydia A. Cramb, against Henry C. Reed,. Eugene C. Bates, his conservator, the Rlinois Trust Company, William K. Reed and the Dime Savings Bank, seeking to have-fifty shares of the stock of the Dime Savings Bank declared subject to a lien for the payment of a certain note of Henry C. Reed, and a decree for the sale of such stock.
    In May, 1872, Levi Kelsey, George M. Price, Lydia A. Cramb and E. S. Kelsey sold to Henry C. Reed, a nephew of Levi Kelsey, one hundred and sixty-six shares of stock of the Illinois Land and Loan Company, for the sum of $16,600, to-be paid in one year, and, as security for its payment, took from said Henry C. Reed an assignment of one hundred shares of stock in the Princeton Loan and Trust Company. On November 30, 1872, the amount due the several vendors had been paid, except the sum of $7331, which, by an arrangement between themselves, remained due to Levi Kelsey.. To settle this, Henry C. Reed gave to Levi Kelsey his four promissory notes of that date, bearing ten per cent interest,—the first for $1200, due in one year, the second for $1600, due in two years, the third for $2000, due in three years, and the last for $2531, due in four years, to secure which Henry C. Reed gave Kelsey various collaterals, which, from time to time, to suit the convenience of the parties, were exchanged for other collaterals.
    On August 7, 1874, Henry C. Reed, who lived at Princeton, Rlinois, wrote the following letter to his brother, William K. Reed, living in Chicago: “I wish you would send me the mortgage of which you spoke, right away, for I wish to get the Gudgell mortgage for the bank as soon as I can. I also wish you would send me $200.” August 21, 1874, Henry C. again wrote said William K., as follows: “Yours bringing the mortgage of a thousand dollars, indorsed to Walter Lister, and also a draft for $200, was quite timely. I went up to Mendota, Tuesday, and took up the $2000 mortgage made by Gudgell, and also one note, coming due September 1, for $500, of the J. G. Beed mortgage. ' I also got of Levi my stock, which was left with him to secure your Ill. L. & L. Co. matter. I have sent to George M. Beed the stock of Ill. L. & L. Co., twenty-three shares, and I suppose he has now got all of mine and Burnham’s, has he not ? If any is yet lacking, have him write me the number of certificate and number of shares. I expect I shall come up there some day next week, and settle up tax matters and other things with the Ill. L. & L. Co. It ought to be brought up to the first of last January, anyhow. I will then bring up the scrip, and trade for mortgages,” etc.
    It does not appear that Levi Kelsey had any knowledge of the writing or existence of these letters, but on October 16, 1874, William K. Beed wrote to said Kelsey, as follows: “Michael Buehler, whose note and mortgage you hold as collateral to H. C. Beed’s agreement, wishes to take up his note of $1000, and have the mortgage released. I send you certificate No. 12 of the Dime Savings Bank, for fifty shares stock, belonging to me, to hold in place of the mortgage. If agreeable, please return the note and mortgage to me.” In reply of date October 17, 1874, said Levi wrote to Henry C. Beed, as follows: “Henry, I have just received a letter from William K. Beed, asking me to send him the last mortgage that you left with me, and also a release of it, as the man wants to pay it. The release should be made by Walter Lister, if he can be found. William sends me fifty shares Dime Savings Bank to hold in lieu of it. Shall I send it? * * * Write me what I shall do about the mortgage,” etc. October 23, 1874, Levi Kelsey wrote to William K. Beed, as follows: “I received yours last Saturday, and wrote to Henry about sending the mortgage to you, and did not hear from him until yesterday. Inclosed I send the note and mortgage asked for, but no release, as it should be released by Lister, if he can be found.”
    It further appears, that on July 11, 1873, Michael Buehler gave his two promissory notes to Walter Lister, each for $1000, ■payable in one and two years, with six per cent interest, secured by mortgage' on real estate. The notes and mortgage were indorsed in blank and guaranteed by Lister, and on February 2,1874, they were sold and delivered to the Illinois Land and Loan Company, and by that company, May 16, 1874, were transferred to the Dime Savings Bank. At the time William K. Beed sent the Buehler note and mortgage to Henry C. Beed, the first note had been paid. The second of these notes shows, by the indorsements thereon, its guaranty by Lister, and its payment October 1, 1874, to “Wm. Kelsey Beed, cashier.” William K. Beed was a stockholder in the Dime Savings Bank, and its cashier. On December 1, 1876, there remained due on the notes of Henry C. Beed to Levi Kelsey $4600, for which Henry C. Beed, at that date, gave his five promissory notes to said Kelsey,—the first for $600, due in one year, the others for $1000 each, payable in two, three, four and five years, all bearing ten per cent interest, and took up and cancelled his note of November 30, 1872. The bank stock before referred to was again pledged to Kelsey, as collateral to these last five notes by Henry C. Beed, the certificate remaining with Kelsey, as before.
    October 21, 1879, these five notes of December 1, 1876, were taken up by Henry C. Beed, and four new notes were given by him to Kelsey for the sum then due,—the first for $300, due on demand, the second for $1000, payable in one year after date, the third for the same amount, payable two years after date, the fourth for a like amount, payable three years after date, all bearing eight per cent interest. Kelsey still retained the certificate of the fifty shares of the bank ■stock, with other collaterals; as security for the payment of these four notes. Levi Kelsey died testate, in December, 1879. ■George M. Price became his executor, and complainants, Myra A. Price and Lydia A. Cramb, were his residuary legatees.
    On May 13, 1881, the four notes last named were cancelled and delivered up to Henry C. Beed by said executor, and the three notes sought to be collected herein were executed by Henry C. Beed, for the balance due on said four notes. The three notes bear date May 13, 1881. One is for $1600, payable to the order of Myra A. Price one year after date, one was for a like sum, payable to the order of Lydia A. Cramb one year after date, and the third for $174.66, payable to Price, as executor of Kelsey, six months after date, and indorsed by Price to Myra A. Price and Lydia A. Cramb. Henry C. Beed pledged the same bank stock, with other collaterals, as security for the payment of these notes.
    There is no proof in the record that William K. Beed, the owner of such bank stock, ever consented to the several renewals mentioned, or the extension of time of payment to Henry C. Beed, or that he ever ratified the same, unless that may be inferred from his delay in asserting his rights.
    William K. Beed and the Dime Savings Bank severally answered, setting up that the certificate of fifty shares of bank stock belonged to William K. Beed, and had been sent by him to Levi Kelsey to hold as collateral security for the notes of Henry C. Beed to said Levi Kelsey, executed in 1872'; that the certificates had never been transferred by William K. Beed; that it had been pledged by William K. Beed to Levi Kelsey, in lieu of the $1000 Buehler note and mortgage; that the various extensions of time and renewals allowed by Kelsey and his executor had been without the knowledge or consent of William'K. Beed, and that by such renewals and extensions the fifty shares of stock became released from any lien as security for the note given by Henry C. Beed to the appellants. Upon hearing, a decree was rendered finding due the complainants, after" the sale and application of the stock of the Blinois Trust o Company, the sum of $4246.12, which was declared a lien on the said fifty shares of stock of the Dime Savings Bank, and a sale thereof was ordered, to satisfy the decree. From this decree William K. Beed and the bank appealed to the Appellate Court for the Second District. That court reversed the decree of the circuit court, and remanded the cause, with directions to dismiss the bill. Complainants below bring the ease to this court by appeal. The other facts material to a full understanding of the case appear in the opinion.
    Mr. F. P. Snyder, and Messrs. Mayo & Widmer, for the appellants:
    An extension of time by Kelsey would not have released the Buehler mortgage, having been placed with him, and owned, for aught that is known, by Henry C. Beed, for his debt. Then the legal status of the substituted collateral is the same as that for which it was exchanged. Therefore, the renewal of the note by Henry C. Reed did not discharge the bank stock. Goodman v. Simons, 20 How. 343; Park Bank v. Watson, 42 N. Y. 490; Jones on Pledges, secs. 89, 90, 541; Darst v. Bates, 51 Ill. 439; Bond v. Insurance Co. 106 id. 656; Manning v. McClure, 36 id. 490; National Bank v. Cheeney, 87 id. 602.
    A pledge is a security for the whole and for every part of the debt, unless otherwise stipulated. Baldwin v. Bradley, 69 Ill. 32; Story on Bailments, sec. 301.
    A waiver of any legal or equitable right, at the request of another, is - a sufficient consideration to support a promise. Miller v. Hawker, 66 Ill. 185; Buchanan v. Bank, 78 id. 500.
    The delivery of the certificate assigned in blank, was sufficient to pass the equitable title to. the pledgee. Kellogg v. Stockwell, 75 Ill. 68; Otis v. Gardner, 105 id. 436; Jones on Pledges, secs. 163, 165, 168, 169.
    The death of the pledgor will not revoke the pledgee’s authority to fill up a transfer to himself or another. Then why should the death of the pledgee ? Jones on Pledges, sec. 166.
    Mr. Allan C. Story, for the appellees:
    The attempted assignment of the Dime Savings Bank stock certificate to Levi Kelsey was void, and any authority to make a transfer of such stock ceased at his death. Chase v. Palmer,
      29 Ill. 306; Whitaker v. Miller, 83 id. 381; Wilson v. South Park Comrs. 70 id. 46; Gage v. Chicago, 2 Bradw. 332.
    A power of attorney is revoked by the death of either the agent or principal, Risley v. Fellows, 5 Glim. 531.
    The hank was released from all liabilities by the acts of George M. Price and Levi Kelsey .in extending the time of payment. If a debtor pledges collaterals belonging to himself for the payment of a note, and afterwards gives a renewal note, or extends the time of payment, the lien on the collateral is not extinguished. Banker. Bank, 35 Ohio St. 208; Moses v. Trice, 21 Gratt. 556; Pinney v. Kimpton, 46 Vt. 80; Jones on Pledges, sec. 541.
    An extension of the time of payment to a debtor by a binding contract, will release collaterals of a third person pledged as security for the payment of the debt. Burnap v. Bank of Potsdam, 96 N. Y. 125; Bank of Albion v. Burns, 2 Laws, 52; 46 N. Y. 170; Smith v. Townsend, 25 id. 479; Gahn v. Niemcewick, 11 Wend. 312; Calvo v. Davis, 8 Hun, 222; 73 N. Y. 212; Hawley v. Bradford, 9 Paige, 200; Rowan v. Manufacturing Co. 33 Conn. 18; Loomer v. Wheelwright, 3 Sandf. Ch. 148; Vartie v. Underwood, 18 Barb. 561; Steele v. Lord, 28 Hun, 27.
    The like rule applies where a person pledges his property as collateral security for the performance of a contract of a third person. Such property stands in the position of a surety, and any changes in the contract of suretyship which would discharge a surety, discharges the property held as collateral security. So where land subject to a judgment lien is sold by the judgment debtor to a third person, for its full value, it is regarded as standing in a suretyship relation, and is subject to be discharged from such lien, like any other collateral security, by the affirmative acts of the creditor or by his gross negligence. Burnap v. Bank of Potsdam, 96 N. Y. 125; White v. Ault, 19 Ga. 551; Rowan v. Manufacturing Co. 33 Conn. 18; Barnes v. Mott, 94 N. Y. 397; Christner v. Brown, 16 Iowa, 130; Ryan v. Town of Shawneetown, 14 Ill. 20; Crawford v. Richeson, 101 id. 351; Denison v. Gibson, 24 Mich. 187.
   Mr. Justice Shope

delivered the opinion of the Court:

There can be no question that the certificate of fifty shares ■of stock in the Dime Savings Bank was the property of William K. Beed,' and that Kelsey had notice of that fact when he accepted the same as collateral security for the payment of Henry C. Seed’s note of November 30, 1872, in lieu of the Buehler note and mortgage. When a third person pledges his property as a security for the payment of a debt or obligation of another, such property will stand in the position of a surety of the debtor, and any change in the contract of surety-ship which would discharge a surety, will release and discharge the property so held as collateral. This rule also applies to mortgages made by one person to secure the debt of another. Burnap v. National Bank of Potsdam, 96 N. Y. 125; Rowan v. Sharpe Rifle Manufacturing Co. 33 Conn. 18; White v. Ault, 19 Ga. 551; Barnes v. Mott, 64 N. Y. 397; Christner v. Brown, 16 Iowa, 130; Ryan v. Town of Shawneetown, 14 Ill. 20; Crawford v. Richeson, 101 id. 351; Bank of Albion v. Burns, 46 N. Y. 170; Colebrook on Collateral Securities, sec. 239.

The rule is well settled in this State, that if a creditor, by a valid and binding agreement, without the assent of a surety, gives further time for payment to the principal debtor, the surety will be discharged. Dodgson v. Henderson, 113 Ill. 360; Davis v. People, 1 Gilm. 409; Waters v. Simpson, 2 id. 570; Crossman v. Wohlleben, 90 Ill. 537; Myers v. Bank, 78 id. 257; Danforth v. Semple, 73 id. 170; Montague v. Mitchell, 28 id. 481; Kennedy v. Evans, 31 id. 258. See, also, Brandt on Suretyship, secs. 301, 304, 307; Bayliss on Sureties and-Guarantors, 240, et seq.

The. surrender of the old notes, and their cancellation, was a sufficient consideration for the new notes given, and the holder, by such surrender and cancellation, put it out of his power to sue on the indebtedness or enforce its collection until the maturity of the new notes. After the pledging of the certificate of the bank stock in October, 1874, as collateral security, Kelsey, the creditor, on December 1, 1876, had a settlement with Henry C. Beed, the debtor, on which it was found there was a balance of $4600 due from the latter to the former upon the original indebtedness, and new notes, extending the time of payment for five years, were taken by Kelsey for such balance, and the note for the payment of which this collateral was pledged, was cancelled and surrendered. To this, William K. Beed is not shown to have consented, or that he had any knowledge of it, or notice that his stock was pledged for the payment of the new notes. It is not shown that he authorized Henry 0. Beed, or any one else, to make such new pledge of his property. But if he had made or authorized the making of said pledge of his property in October, 1879, it appears that two years before the maturity of the last of these notes, Kelsey-surrendered them to the maker, and again extended the time-, of payment to his debtor by accepting in lieu four other notes,, the first for $300, due on demand, and the other three for $1000 each, due in one, two and three years, respectively,, from their date, the last of which did not fall due until im October, 1882. This material change in the terms of the contract, without the consent of William K. Beed, was sufficient .to release the undertaking that his property should stand as security. As before said, the record fails to show that he had any knowledge of, or assented to, any of these extensions, or authorized Henry. C. Beed or any other person to use his bank stock as a pledge for the performance of such new contract.

It is, however, urged, that the pledge of the bank stock was made by William K.- Beed on a valuable consideration moving from Henry C. Beed; that it was substituted for the Buehler note and mortgage of $1000, the property of Henry C. Beed, and therefore the bank stock is to be treated as the property of the latter, and therefore the various extensions given to him. would not operate to release the collateral. It is true, that if a debtor pledges collaterals of his own as security for his note or bill, the extension of the time of payment will not extinguish his creditor’s lien on the collaterals. If Henry C. Beed owned the Buehler note and mortgage, and consented to its exchange for the bank stock, this rule might be invoked, and become decisive of the question being considered. Did he own such note and mortgage? In October, 1874, Kelsey held in his hands various collaterals to secure the payment of the Henry C. Beed note of $7331, among which was the Buehler note and mortgage for $1000, payable to Walter Lister, dated July 11, 1873, payable two years after the date thereof. This note was indorsed by Lister, and its payment guaranteed by him. The record fails to show how it came into the hands of Kelsey, but it is fairly inferrable, from the evidence, that Henry C. Beed procured the note and mortgage from or through his brother, William K., and pledged the same to Kelsey. It appears from the testimony of George W. Beed and that of L. B. Shattuck, that this note and mortgage were, on February 2, 1874, taken by the Illinois Land and Loan Company in part payment of a debt due from Walter Lister, the payee, and that this com-” pany, on May 16, 1874, sold the same to the Dime Savings Bank, with which bank William K. Beed was connected, and of which he was an officer.

On August 2, 1874, as appears by the correspondence, Henry C. Beed requested William K. Beed to send to him (Henry) the mortgage he had spoken of, and $200 in money. That this was the Buehler mortgage, is apparent from the letter of Henry C. Beed acknowledging its receipt, and the subsequent correspondence between William K. and Kelsey, and the letter of the latter to Henry G. Beed. William K. Beed wrote to Levi Kelsey of the date of October 16,1874: “Michael Buehler, whose note and mortgage you hold as collateral to H. C. Beed’s agreement, wishes to take up his note of $1000, and have the mortgage released. I send you certificate No. 12 of the Dime Savings Bank, for fifty shares stock belonging to me.” This shows that its hypothecation was known to William K. Beecl, and tends to strengthen the view that it had originally come from him to Kelsey. This letter was received by Kelsey, for in his letter of October 17, 1874, to Henry 0. Beed, he says: “Henry, I have just received a letter from William K. Beed, asking me to send him the last mortgage that you left with me, etc. William sends me fifty shares Dime Savings Bank, to hold in lieu of it. Shall I do it?” The note and mortgage were sent October 23, 1874, to William K. Beed, by Kelsey. It also appears from the note, duly proved, that it was paid to “William K. Beed, cashier,” and that on the same day of its payment Buehler procured a loan bn the same property from the Dime Savings Bank. The record nowhere shows that William K. Beed or the bank was ever called upon to account for the money received on this Buehler note and mortgage. If, as shown, this note and mortgage belonged to William K. Beed, no accounting would be expected, but if it belonged to Henry 0. Beed or to some other person, and had been accounted for, it could have, in some way, been made apparent.

It does not appear that Kelsey, when this note and mortgage were pledged to him, had notice that they belonged to William K. Beed. Henry G. Beed being the holder and clothed with the evidence of ownership of said note and mortgage, and the same being indorsed in blank by the payee, Lister, might have passed the title to the note to any innocent purchaser for value, and vested the title as against William K. Beed. This being so, Kelsey might properly take the same in pledge of Henry 0. Beed as collateral security for his debt, and no extension of the time of payment, before notice of its being the property of William K. Beed, would have released it from the pledge. After notice that it belonged to William K. Beed, it was the duty of Kelsey, the pledgee, to do nothing prejudicial to the rights of William K. Beed as owner of such collateral. The letter of William K. Beed of October 16, 1874,' to Kelsey, in which he sends the certificate of the bank stock, notified Kelsey that the shares of stock were the property of William K. Beed. By the same letter, Kelsey was requested to return the Buehler note and mortgage to him. Kelsey, acknowledging the receipt of that letter, on October 23, 1874, says: “I received your letter last Saturday, and wrote to Henry about sending the mortgage to you, ” etc., and inclosed the note and mortgage, as requested. We think the' correspondence, when considered in connection with the letter of Kelsey to Henry 0. Beed, to know if he should return the same, was sufficient notice to Kelsey of the claim of William K. Beed to the note and mortgage. Whatever is sufficient to put a reasonably prudent man upon inquiry, is to be regarded as notice of the facts such inquiry will disclose. Such inquiry, if made by Kelsey, clearly would have shown him that the note and mortgage belonged either to William K. Beed or to the bank, of which he was cashier. That Kelsey had notice of the ownership of the fifty shares of bank stock hypothecated in lieu of the Buehler note and mortgage, is clearly apparent. It can not, therefore, be said, that William K. Beed pledged his bank stock in consideration of the surrender to Henry 0. Beed of the note and mortgage as his property. We have seen that the note and mortgage were not the property of Henry 0. Beed, but that of William K.. Beed, or of the bank, and if the latter, William K. Beed would be responsible to the bank for it. No consideration passed from Henry 0. Beed for the exchange of collaterals, as neither belonged to him. It follows, therefore, that the certificate of bank stock pledged in lieu of the Buehler note and mortgage must be regarded as the property of William K. Beed, pledged as security for the payment of the note of Henry C. Beed made in 1872, and that the several extensions of the time of payment must be held to have discharged the pledgee’s lien on the same.

It is insisted that the Appellate Court should have remanded the cause generally, so as that the complainant might have proceeded further in the court below. If the decree had been reversed for variance between the allegations of the bill and the proofs, or for any reason not going to the merits of the-right of complainant to recover, the practice indicated would have been proper. But the proof showing that the lien on-the collateral, in respect of which relief is sought by the bill, had been released, thereby defeating the complainant’s right of relief, there was no reason for remanding the cause generally. The views expressed render it unnecessary to consider the other question discussed by counsel. Perceiving no substantial error in the judgment of the Appellate Court, it must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Calumet River Railway Company v. Clara Moore et al.

      Filed at Ottawa March 26, 1888.

    1. Eminent domain—measure of damages—present value as the basis. In a proceeding to condemn land for a public use, the damages to be . awarded as compensation to the land owner must be based upon the fair cash value of the land at the time of the condemnation.
    2. Same—adaptation to particular use—as an element of damages. The compensation is to be estimated with reference to the uses for which the property is suitable in its then condition, having regard to its location, situation and quality, and to the business wants in that locality, or such as may reasonably be expected in the near future.
    3. If lots abutting upon a river are available for dock purposes, for which there is no present demand, their value when improved by the building of docks, the profits that might be derived therefrom, or the value of the lots at some future time, as, when business or the wants of the community may make profitable the building of docks or slips on the lots, is merely conjectural and remote, forming no proper element in estimating the damages to be paid.

      4. But if the fact that lots are located with a frontage on a river, at a place where they can, at some future time, when demanded, be made available as dock property, enhances their present market value in their then condition and state of improvement or want of improvement, that fact will be competent, and proper to be shown and considered by the jury in estimating the damages.
    5. In such case, it can make no difference that there may be no present demand for docks upon the lots. If, in consequence of their supposed adaptation to such use, they have an increased market value above what they otherwise would have, such value forms the proper basis of a recovery.
    6. Same—evidence—plan of proposed improvement of property by the owner. On the assessment of compensation and damages in a proceeding to condemn for a right of way a strip across lots abutting upon a river, the court allowed the lot owner'to introduce in evidence a plat of a proposed improvement, showing water fronts of proposed docks along the river. The court, in admitting the plat, and in an instruction, limited this evidence to the "question of what uses the lots might or might not be adapted to: Held, no error in its admission.
    7. Instructions—whether authorizing a belief outside of the evidence. An instruction in a condemnation proceeding, telling the jury that they are to assess the damages at such sum as in their judgment the defendants are entitled to under the evidence, is not open to the criticism that it authorizes the jury to make up a belief and judgment outside of the evidence.
    8. Same—whether assuming a fact. An instruction that if the jury believe the damages, in a condemnation proceeding, exceed the benefits, provided they believe there are benefits, they should assess the damages in excess of benefits at such sum as in their judgment the defendants are entitled to, under the evidence, is not open to the objection that it tells the jury positively that there are damages, but that the benefits are doubtful. The words, “under the evidence,” relate to and govern both antecedent propositions, damages as well as benefits.
    9. New trial—excessive damages. Where there is a great disparity in the evidence as to the value of the land sought for a right of way for a railroad, and as to damages to land not taken, this court will not feel justified in reversing the judgment on the verdict, unless it appears that the result reached by the jury is clearly unreasonable, and the damages awarded are grossly excessive, so as to evince that the verdict was the result of passion, or undue and improper motive or influence.
    Appeal from the County Court of Cook county; the Hon. Elbert H. Gary, Judge, presiding.
    This was a proceeding brought in the Cook county court, ".by the Calumet River Railway Company, to condemn a right ■of way one hundred feet wide, across certain lots in the division of the north one hundred and ten acres of the north-east fractional quarter of section 19, township 37 north, of range 15 •east, in Cook county. The particular lots involved in this ■appeal were lot 2, containing five acres, and owned by Clara Moore, lot 3, containing eighteen acres, and owned by John Leffler, and lot 4, containing fourteen acres, and owned by ■Jeannette Freeman. The relative positions of the river and .railroad to these lots is well shown by the following plat: ■

    The jury, on the application of the appellant, viewed the premises. The verdict found the damages for land taken and to land not taken, as to each tract and lot owner, severally, and judgments were rendered thereon. The railroad company appeals.
    Mr. Frank J. Loesch, and Mr. Charles A. Allen, for the-appellant.
    Mr. Seth F. Crews, for the appellees.

       The following cases were also considered in the same opinion: Calumet River Railway Co. v. John Leffler, and Same v. Jeannette Freeman.

   Mr. Justice Shope

delivered the opinion of the Court:

The three .cases of Calumet River Railway Co. v. Clara Moore et al., Same v. John Leffler, and Same v. Jeannette Freeman, involving the condemnation of the right of way of appellant company’s railway across adjoining tracts of land, and presenting substantially the same questions, will be considered together. An objection common to each case is, that the damages awarded were excessive, and the judgments severally rendered should be reversed.

As is not unusual in cases of like character, there was wide-divergence in the evidence of the witnesses, both as to the value of the land taken and as to damages to adjacent lands, of the several owners not taken. The estimates of the value of lot 2 ranged from $100 to $1500 per acre, and of lots 3 and 4 from $100 to $2500. In respect of the damages to-portions of the lots not taken, there was equally wide disparity. The jury seem to have considered this evidence, and fixed the damages to be awarded to appellees, in each instance, at a. sum far below the highest estimates, and somewhat above the lowest; given by the witnesses. Ample evidence is disclosed, independently of the personal inspection of the jury, upon which the verdict as to each tract may rest. In such cases,, this court will not be justified in reversing, unless it appears that the result reached by the jury is clearly unreasonable, and the damages awarded are grossly excessive, so as to evince that the verdict has been the result of passion, or undue and. improper motive or influence. Nothing of the kind is apparent here.

Counsel concede that this rule is applicable to land taken, but question its applicability to land damaged but not taken. We are unable to perceive upon what principle the distinction suggested can rest. The rule has its basis in the office performed by the jury. It is then: special province to weigh and consider the evidence, and so long as their action is based upon evidence, and is free from the taint of corruption, passion or prejudice, and within reason, courts must accept and give effect to it. Chicago and Evanston Railroad Co. v. Blake, 116 Ill. 163.

It is said that improper elements of damage were permitted to be shown by the- evidence, and the court improperly instructed the jury in respect thereto. Two of these parcels of land abut upon Calumet river, and the other one is.cut off from the river about four hundred feet. This river falls into .Lake Michigan at South Chicago. The north line of lot 2 is ■One hundred and Fourteenth street, and the distance by the river, from thence to the river mouth, is three and a half miles. From the mouth of the river south, as far as Ninety-fifth street, more or less of the river front appears to have been docked, and from Ninety-fifth street to the property in question it is equally available for dock purposes, though as yet no Improvements of that character have been constructed, •except one at Cummings, half a mile north of this property. “It was conceded,” counsel for appellant says, in his brief, “by all the witnesses, that this river property had a value as possible dock property,” and the evidence clearly tended to show that fact. But it is said that the evidence does not show that there is now any demand for docks at this point on Ihe river, and that the consideration of such possible demand introduced speculative elements, and that the estimates in respect thereof were speculative and remote, and therefore improper.

In proceedings for condemnation of private property for public use, as is here sought to be done, the damages to be-awarded as compensation to the land owner must be based, upon the fair cash value of the land at the time of the condemnation thereof. The questions ordinarily to be determined by the jury are, first, what is the present market value of the land taken; and second, to what extent, if at all, will the remainder of the tract of land not taken be depreciated in its market value by reason of the taking and appropriation of the-land taken to the proposed use. The compensation is to be estimated with reference to the uses for which the property is suitable in its then condition, having regard to its location, situation and quality, and to the business wants in that locality, or such as might reasonably be expected in the near future. If these lots were available for dock purposes, (for which, as-shown, there was no immediate demand,) their value, when improved by the building of docks, the profits that might be-derived therefrom, or the value of the lots at some future time, as, when business or the wants of the community might make profitable the making of docks or slips on this property, would be merely conjectural and remote, forming no proper element in estimating the damages to be paid. But if the fact that-these lots were located with a frontage on this river, at a place-where they could, at some future time, when demanded, be-made available as dock property, enhanced their present market value in their then condition and state of improvement, or want of improvement, that fact would be competent and proper to be shown, and be considered by the jury in estimating the damages. It can make no difference that there might be no present demand for docks upon these lands. If, in consequence of their supposed adaptation to such use, they had an increased market value above what they otherwise would have, such value forms the proper basis of recovery. We said in Chicago and Evanston Railroad Co. v. Jacobs, 110 Ill. 414, that in these cases “the real issue was, what was the market. value of the property for any purpose for which it is adapted or might he used.” And so, in Dupuis v. Chicago and North Wisconsin Railway Co. 115 Ill. 97, we held that if lands were valuable, by reason of their location on or near a river, for the purposes of operating a saw mill or factory, or any other purpose, testimony to prove the same was proper for the consideration of the jury, in determining the fair market value of the premises. Jacksonville and Southeastern Railway Co. v. Walsh, 106 Ill. 253; Washburn v. Railroad Co. 59 Wis. 369.

The evidence in this case shows that these lots 3 and 4 had a market value, based upon their availability to be put to the purpose indicated, and so far as the evidence tended to show the present market value of the lots, we are of opinion it was competent, and that damages based thereon are neither remote nor speculative. The jury were expressly told that in determining the value of the lots for dock purposes, the value should be estimated at their present cash market value. It is evident that the jury estimated the damages from the present cash market value of the land, as they found it to be from the evidence, as they were instructed by the court to do. The jury had before them evidence tending to show the capabilities and adaptability of these parcels of land to dock purposes by reason of their location and their abutting on this river, and that the market value thereof as then situated was enhanced by this fact. It clearly appears that their availability for dock purposes is wholly destroyed by the taking and appropriation of the right of way across the lots by petitioner’s road. The injury is permanent, and viewing the case and all its facts, we can not say that the damages awarded were grossly excessive or unreasonable.

It is argued that the jury must have considered improper elements in the cases of Leffler and Freeman, from the fact that there is great disparity between the damages awarded them and the damages awarded appellees Moore and others; but it will only be necessary to say that lot 2, owned by the latter, is not shown to be adapted to dock purposes, to account for the difference in the damages awarded, if there were no other reason therefor.

On the trial, appellees Leffler and Freeman offered, and the court permitted to go to the jury, over appellant’s objection, a plat of a proposed improvement, viz., a slip one hundred feet wide,—fifty feet on lot 3, and fifty feet on lot 4,—and extending back from the river about one thousand feet, and showing the water fronts of proposed docks along the river. In admitting this plat the court said: “The court receives the map merely as an illustration of one of the uses, for which it is claimed the property is adapted, and expressly limits it to that object.” And at the request of appellant, the court gave the following instruction:

“The court instructs-the jury, that the evidence of the plans or intention of the owners of lots 3 and 4 in question, to construct a slip between said lots, or to make dock property of said lots, or either of them, should not be considered by the jury to enhance or increase the damage of said owners, by showing such construction of a slip or dock would he a profitable investment, but the jury should consider the evidence of such plans or intentions merely on the question as to what uses said lots might or might not be adapted, giving to such evidence such weight as- the jury believe it is entitled to; and the court further instructs the jury, that they must find the just compensation to be paid for each of said lots in its present condition, separately.”

The introduction of this plat, for the purposes named, and limited by the trial judge at the time, in connection with the instruction given the jury in respect thereto, can not, under the authority of Chicago and Evanston Railroad Co. v. Blake, 116 Ill. 163, be regarded as erroneous. It was not pretended that the slip had been constructed or the docks erected. Indeed, it was a fact known to the jury, from their inspection of the premises, that the land was in its natural state, unimproved in any way. This being so, the exhibiting of a plat showing no more than a contemplated improvement to which it was thought the premises were well adapted, and which the construction of the proposed railway would render impossible or seriously interfere with, could not have misled the jury into allowing damages for an improvement not in existence.

The remaining objections of appellant relate to instructions given on behalf of the appellees. While it is true that the finding of the jury is always to be based upon the evidence, and great care is to be used, in drawing instructions, not to exclude this principle, it is the judgment of the jury, based upon and springing out of the evidence, that takes form in the verdict. Hence an instruction which tells the jury that they are to assess damages at such sum as, in their judgment, the defendants are entitled to under the evidence, is not open to the criticism that it tells the jury they may make up a belief and judgment outside the evidence. Nor is an instruction which tells the jury, that if they believe the damages exceed the benefits, provided they believe there* are benefits, then they should assess the damages in excess of benefits at such sum as, in their judgment, the defendants are entitled to under the evidence, open to the objection that it tells the jury positively that there are damages, but that the benefits are doubtful. The concluding words, "under the evidence,” relate to and govern both antecedent propositions,—damages no less than benefits,— and must have been so understood by the jury.

Finding no error in the record, the judgments of the county court of Cook county, in the cases named, will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Amos J. Stillwell v. John W. Brammell.

      Filed at Springfield March 28, 1888.

    1. Tax title—of the strictness required. A title to be made under a tax deed is one stricti ju/ris, and a strict compliance with the law must be shown.
    2. Same—notice of tax purchase—its requisites. A notice of a tax purchase which states the sale of the land for delinquent taxes or special assessments levied for a certain year, but fails to specify whether for taxes or special assessments, is defective, and will not authorize a deed.
    3. Same—affidavit of service of notice—its requisites. An affidavit of the service of notice, to entitle the purchaser to a deed on a tax sale, must show the names of all persons in the actual possession of the land, the person in whose name it was taxed, and the names of the owners or parties interested in the premises, and the service of the proper notice on them. Leaving the names of such persons blank is a fatal omission.
    4. An affidavit for a tax deed of the service of notice to B, in the actual possession' or occupancy of the premises, “ and as owner or party interested therein,” and “ as the person in whose name it (land) was assessed,” is fatally defective. The affidavit must show that the person served was in fact the owner or person in whose name the property was taxed. It is not sufficient that he was regarded as such.
    5. Same—affidavit of service—construed. An affidavit of the service of notice of a tax purchase read: “That the said S. caused to be served written or printed, or partly written and partly printed, notices of his purchase at said tax sale upon............. the only person in actual possession or occupancy of said............; also upon............, the person in whose name the same was taxed or specially assessed; and also, a like notice was given to............. the owners or parties interested in said land, in the manner stated in the affidavit of W., hereto attached,” etc.: Held, that the affidavit indicated that more than one notice was served, aud that there was more than one owner or party interested, and that the person in possession was different from the one in whose name the land was taxed, and that the reference to the affidavit of W. was for the purpose of indicating merely the manner of the service, and could not cure the defect in the first affidavit in failing to give the names of the persons served.
    Writ of Error to the Circuit Court of Pike county; the Hon. Charles J. Scofield, Judge, presiding.

      Mr. J. S. Irwin, for the plaintiff in error:
    A tax deed made by the county clerk is, under the Revenue act of 1879, prima facie evidence of all antecedent proceedings, and dispenses with proof of such proceedings. Revenue act, sec. 224; Ransom v. Henderson, 114 Ill. 528.
    And this act applies to sales made for special assessments, as well as for State and county taxes. McCauley v. People, 87 Ill. 123; People v. Sherman, 83 id. 168.
    There is no particular form of notice required by the statute. It is sufficient if it communicates notice of the facts required by section 216, and a general notice “to whom it may concern” is sufficient. Frew v. Taylor, 106 Ill. 159; Price v. England, 109 id. 394.
    The statute nowhere requires the county clerk, before making a deed, to visit the land to see whether there is an occupant, or to make any other inquiry as to whether the affidavits presented are true, but it is his duty to make the deed on the prima facie case made by the affidavits.
    If there is but one person interested in the land, and he is, first, the owner; second, the person in whose name the land was assessed; third, the occupant; and fourth, the only person interested, then, if the notice is in conformity to the statute, its service on him by name is sufficient, and the affidavit need not state the different relations he bore to the land, and if it does, it is but surplusage. The word “as,” in the affidavit, is but descriptive of these relations, and enables the clerk to ascertain that the persons sustaining each of these relations have been notified.
    The statute does not require that any one should swear positively to the ownership of the land, or that certain persons are interested, and none others, in the land.
    What is sufficient affidavit as to caption, etc., see Kruse v. Wilson, 79 Ill. 233; Harris v. Lester, 80 id. 307.
    As to description of land, see Kruse v. Scripps, 11 Ill. 98; Swift v. Lee, 65 id. 336; Billings v. Coal Co. 67 id. 489.

      The wife of Brammell was not entitled to notice, because •during the life of the husband she has no estate of homestead, (Exemption act, sec. 2,) and because she is not an occupant •entitled to notice. (Whelan v. Fish, 2 Bradw. 447.) But if, because of her homestead right, she is entitled to notice, then her right should be restricted to the forty acres embracing the homestead. Aldrich v. Thurston, 71 Ill. 324; Brock v. Leighton, 11 Bradw. 361; Hill v. Bacon, 43 Ill. 477; Gardner v. Eberhart, 82 id. 316; Linton v. Quimby, 57 id. 272.
    Mr. A. C. Matthews, Messrs. Orr & Crawford, and Mr. H. D. L. Grigsby, for the defendant in error:
    The law makes it a prerequisite to the validity of a tax deed, when sought to be relied on as evidence of title, that the purchaser, or his assignee, shall have served, or caused to be served, notice of his purchase “on every person in actual possession or occupancy of such land or lot; also, on the person in whose name the land was taxed or specially assessed; also, on the owner of or parties interested in said land, if they can be found in the county, at least three months before the expiration of the time of redemption on such sale,” in which notice he shall' have stated when he purchased the land, in whose name taxed or specially assessed, a description of the land purchased, for what year taxed or specially assessed, and when the time of redemption would expire. Revenue law, sec. 216; Starr & Curtis, 2098; Price v. England, 109 Ill. 394; Davis v. Gossnell, 113 id. 121.
    Every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of said section 216, •stating fully the facts relied on as such compliance. Revenue law, sec. 217; Smith v. Hutchinson, 108 Ill. 662; Eagan v. Connelly, 107 id. 458; Wallahan v. Ingersoll, 117 id. 123; Gage v. Waterman, 121 id. 115.

      Under these sections of the statute, the uniform holding of this court has been, that the purchaser must show that the-notices have been served upon, first, every person in actual, possession or occupancy of the same; second, the person in_ whose name the same was taxed or specially assessed; and. third, the owner of or parties interested in said land; and he must further show that the service was a personal service on each of the parties, if such party could be found in the county. Price v. England, 109 Ill. 394; Davis v. Gossnell, 113 id. 121.
    The service of notice must be upon all persons in possession or occupancy. Const. 1870, sec. 5, art. 9; Gage v. Reid, 118 Ill. 35; Revenue law, sec. 216.
    The plaintiff in error seems to insist that if the affidavit would warrant the county cleric in issuing the deed, the deed must of necessity be good. This can not be the law of the case. McAlpine v. Zitzer, 119 Ill. 273.
    To maintain a suit in ejectment, based on a tax deed, the-plaintiff must introduce, among other things, a judgment for the amount of the tax or special assessment for which the land-was sold. (Adkins v. Hinman, 2 Gilm. 437; Holbrook v. Dickinson, 46 Ill. 285; Bell v. Johnson, Ill id. 374.) And while-the plaintiff in error insists that this is not necessary, and-cites the case of Ransom v. Henderson, 114 Ill. 528, in support", of the position, a reference to that case will show that that: precise point was not before the court. It was held in that case that a precept was not necessary,—that the affidavit should show that the person served was, first, the only owner; second, the only person in whose name the land was assessed; third, the only person in possession or occupancy of the land; and fourth, the only person interested in the land. And the affidavit must be taken, like a plea, most strongly against the party making it.
    Land sold at tax sales should be described with reasonable certainty. The title to be made under a tax deed is one stricti juris. Therefore, a non-compliance with anything the law makes a condition precedent to the right to have a deed, is fatal, and the court will not look to see whether the omission has misled or injured any one. Wisner v. Chamberlin, 117 Ill. 568.
    The validity of a tax title depends upon a strict compliance with the statute, in all respects, and parol evidence can not be received to supply defects or omissions in the affidavit. Gage v. Meyer, 117 Ill. 632.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of ejectment brought by plaintiff in error against defendant in error in the circuit court of Pike county to recover the possession of the west half north-east quarter section 20, town 5 south of range 6 west of the fourth principal meridian, in that county. A jury was waived by agreement and the case tried by the court, who found the defendant not guilty, overruled the motion for a new trial, and rendered judgment for the defendant and that he recover and have execution for his costs.

4

Upon the trial the plaintiff submitted to the court written propositions to be held as law in the decision of the case, which the court declined to hold as law and marked “refused.” The points hereinafter discussed arise upon these propositions.

Plaintiff sought to recover upon a tax deed; It was admitted on the trial that the land was sold for the non-payment of a special assessment for the year 1880 made for the purpose of repairing a levee located in the Sny Island levee drainage district, and that the State and county taxes had been paid.

In connection with the tax deed plaintiff introduced in evidence two affidavits, one by B. S. Wills for the purpose of showing compliance with section 216 of the Revenue act, and one by I. S. Irwin for the purpose of showing compliance with section 217 of that act. The latter section provides, that every purchaser at a tax sale or assignee of such purchaser, by himself or agent, “shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, (216) stating particularly the facts-relied on as such compliance,” etc.

The material part of Irwin’s affidavit, which he made as agent of Stillwell was as follows: “That the said Stillwell caused to be served written or printed, or partly written and partly printed, notices of his purchase at said tax sale upon ............. the only person in actual possession or occupancy of said............; also, upon............. the person in whose name the same was taxed or specially assessed ; and also, a like notice was given to........... the owners or parties interested in said land, in the manner stated in the affidavit of B. S. Wills, hereto attached, at least three months,” etc., prior to the time of redemption.

This affidavit is defective in not giving the names of the parties upon whom the notices were served. By the use of the word, “notices,” it would appear that more than one notice was served. By the use of the words, “owners or parties interested,” it would appear that there was more than one owner or more than one party interested. The phraseology of the affidavit implies that the person in possession or occupancy was a different person from the one in whose name the land was taxed or specially assessed, and that the latter was a different person from either of the owners or parties interested. Section 216 requires that the notice of the purchase shall be served on every person in actual possession or occupancy of the land, also on the person, in whose name the same was taxed or specially assessed, if he or she can be found, etc., also on the owners or parties interested in said land, if they can be found, etc. If the affidavit made under section 217 does not show the names of the parties belonging to these several classes,- upon whom notices have been served, it omits to state one of the most important facts, which can be relied on to show a compliance with section 216.

It is claimed, however, that the failure too give the names in Irwin’s affidavit of the parties.served is cured by the reference made therein to the affidavit of Wills thereto attached. The affidavit of Wills is as follows:

“Robert S. Wills, being duly sworn, states, that at the request of A. J. Stillwell, he served, on the 13th day of February, 1883, the foregoing notice, which was partly printed and partly written, by delivering a duplicate copy thereof to J. W. Brammell, in actual possession or occupancy thereof, and as owner or party interested therein, and as the person in whose name it was assessed. He was living on the land at the time of serving the notice. R. g. Wills.
“Subscribed and sworn to before me on this 23d day of August, 1883. . a L g CTerfc."
[Seal.]

The Irwin affidavit merely refers to the Wills affidavit for the purpose of indicating the manner, in which the service of the notice or notices was made. The manner of service, as shown by the latter affidavit, was by handing a duplicate copy of the notice to the person intended to be served. The Wills affidavit does not supply the name of more than one person nor mention the service of more than one notice.

But the affidavit of Wills is insufficient, even if it be regarded as a part of the affidavit of Irwin and as supplying all the omissions noticeable in the latter. Wills swears that he delivered a copy to Brammell “as owner” and “as the person in whose name it (the land) ivas assessed.” This does not meet the requirements of section 216. That section says that the owner must be served. It is not sufficient that service is had upon some one whom the party making the service may choose to designate as owner. The person to be served is he, in whose name the land is taxed or specially assessed, and not some individual who may be regarded as the person contemplated by the statute. There is no allegation that Brammell was owner, or that he was the person in whose name the land was taxed or specially assessed.

Again, the notice, referred to in Irwin’s affidavit, was defective. It was as follows:

“Notice is hereby given, that at the sale of lands, town and city lots, made pursuant to law, in Pittsfield, in the county of Pike, and State of Illinois, for the delinquent'taxes and special assessments levied for the year 1880,1 became the purchaser, on the 6th day of June, A. D. 1881, of seventy-four acres,—the west half north-east quarter of section 20, township 5, range 6, which was assessed to J. W. Brammell for the year 1880. The time of redemption (two years) will expire on the 6th day of June, 1883. Thereafter, I will be entitled to a deed for the same. . A. J. Stillwell.”

Section 216 requires that the notice shall state when the purchaser “purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased; for what year taxed or specially assessed; and when the time of redemption will expire.” There is a difference between a tax and a special assessment. The notice above quoted fails to inform the land owner whether his property was sold for a tax or a special assessment. It was therefore defective under the ruling made in Gage v. Waterman, 121 Ill. 115.

“The title to he made under a tax deed is one stricti juris.” (Wisner v. Chamberlin, 117 Ill. 568.) As plaintiff in error was not entitled to a deed until he made the affidavit required by section 217, and as the affidavit delivered by him to the county clerk did not comply with the provisions of that section, the ruling of the trial court upon the propositions submitted to it was correct.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    William S. Vinyard et al. v. Jacob H. Barnes, for use, etc.

      Filed at Springfield March 28, 1888.

    1. Surety—liability—strict construction. The undertaking of a surety is to be construed strictly, and can not be varied or enlarged by judicial ■construction.
    2. Replevin—of the judgment, as fixing the rights of the pan-ties— presumption, when no retwn is awarded. The right of the defendant in replevin to the possession and return of the property is determined by the judgment. When no return is awarded in a judgment for the defendant, it will be presumed that it was made to appear that the plaintiff had become •entitled to the possession of the property.
    3. Replevin bond—two-fold character of its conditions—breach. The conditions in a replevin bond to prosecute the suit to effect, and to make return of the property, are distinct ones, and the condition is broken and the bond forfeited by a failure in either; but evidence of a breach of the former condition can not be held sufficient proof of a breach of the latter.
    4. Same—measure of damages im suit on the bond, in case no return is muarded. Under a replevin bond conditioned that “the plaintiffs shall prosecute their suit to effect and without delay, and make return of the said property if return thereof shall be awarded,” there can be no recovery •of the value of the property replevied, without proof of a judgment awarding its return.
    5. Presumption—in support of the judgment below. In the absence of any showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right one to be rendered in the case.
    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.
    Messrs. Moses & Newman, for the appellants:
    There was, substantially, but one breach alleged in the ■amended declaration, viz., that the defendants did not prosecute their suit with effect. The usual practice, when the defendant is found not guilty on a contesting plea, is to award a retorno habendo; but it is not necessary the writ shall in fact issue. Manning v. Pierce, 2 Scam. 6; Hunter v. Sherman, id. 543; Anderson v. Talcott, 1 Gilm. 370; Johnson v. Howe, 2 id. 342.
    The court must presume there was a legal reason for a dismissal without an award. If there were but a plea of non cepit or non detinet on file, there could be no award for a return. Johnson v. Howe, 2 Gilm. 345.
    As to presumption in favor of the judgment, see Camp v. Small, 44 Ill. 37; Morton v. People, 47 id. 468; Hermann v. Pardrige, 79 id. 471; Clark v. Norton, 6 Minn. 418.
    As to liability on replevin bond, see Perreau v. Bevan, 5 Barn. & Cress. 284; Turner v. Turner, 2 Brod. & Bing. 107; Page v. Evans, 1 Boss. & Pull. 378; Yea v. Lethbridge, 4 T. R. 433; Brown v. Parker, 5 Blackf. 291; Thomas v. Irwin, 90 Ind. 557.
    The condition to return the property, if that is awarded, is not the same as that covered by the condition to prosecute the action with effect. Brown v. Parker, 5 Blackf. 291; Cleary v. Noland, 24 Cal. 148; Clark v. Norton, 6 Minn. 412; Badlam v. Tucker, 1 Pick. 284; Gallarati v. Ovser, 27 N. Y. 324; Cooper v. Brown, 7 Dane, 333; Ashley v. Peterson, 25 Wis. 621; Hollinsbee v. Ritchey, 49 Ind. 261; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 id. 392; Tuck v. Moses, 58 Me. 474; Broadwell v. Paradice, 81 Ill. 476; Ladd v. Prentice, 14 Conn. 116; Langdoc v. Parkinson, 2 Bradw. 136; Goodhead v. Bowen, id. 578; Prentiss v. Mone, 3 id. 539; Troutman v. Hill, 6 id. 396; Kimball v. Citizens’ Savings Bank, 3 id. 321; Matson v. Hanisch, 5 id. 102; Robinson v. People, 8 id. 281; Ledford v. Weber, 7 id. 87; Widdecombe v. Dietsch, 12 id. 157; Sermon v. Allan, 15 id. 569; Kantzler v. Albertson, 18 id. 314; Nickerson v. Co. 10 Cal. 521.
    Mr. S. R. Reed, also for the appellants:
    The statute, in cases of replevin, provides that “if the plaintiff fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property,” etc., “unless the plaintiff shall in the meantime have-become entitled to the possession of the property, when judgment may be given against him for cost,” etc. Starr & Curtis, chap. 119, sec. 22, p. 2016.
    The replevin suit was dismissed. Now, what was the duty of the court in the premises, by the provisions of this statute, to award a return of the property, unless it appeared to the court that the defendant was not entitled to it ? And as no-return of the property was adjudged, the presumption is that, the defendant in the replevin was not entitled to it. Clark v. Norton, 6 Minn. 418.
    It will be presumed that courts of general jurisdiction perform their duty and try causes according to the due course of law. Camp v. Small, 44 Ill. 37; Morton v. People, 47 id. 468; Hermann v. Pardrige, 79 id. 471.
    The principal was not in this case adjudged to return the property, and no action can be sustained for failure to prosecute with effect when the right of the defendant in replevin to a return is gone. Clark v. Norton, swpra; Pettygrove v. Hoyt, 2 Fairchild, (Maine,) 68; Chambers v. Waters, 7 Cal. 390; Kimmel v. Hint, 2 Watts, 432.
    When the court failed to order the sale of the property seized under the writ, it operated as a dismissal of attachment. It operated to release the property from the levy, under the writ of attachment. Wasson v. Cone, 86 Ill. 48.
    The defendants in a suit on the replevin bond may show that the interest of the plaintiff, in whole or in part, had, since that time, ceased to exist. Tuck v. Moses, 58 Me. 476; Davis v. Harding, 3 Allen, 302; Bartlett v. Kidder, 14 Gray, 449.
    Mr. W. E. Lodge, and Mr. H. E. Huston, for the appellee:
    We thin It the record of the dismissal of the replevin, suit shows on its face that it is no legal judgment at all; that the ■clerk, in writing np his record, has simply copied the judge’s minutes, and that it lacks all the essentials of a judgment. Martin v. Barnharrdt, 39 Ill. 13; Faulk v. Kellums, 54 id. 191; Edwards v. Evans, 61 id. 493.
    The condition to prosecute with effect is separate and absolute. If, for any cause, the plaintiff fails, or suffers a non-suit, or verdict in judgment against him, it is- a breach of this ■condition, for which an action lies for the full penalty of the bond. Humphrey v. Taggart, 38 Ill. 229; 2 Sutherland on Damages, 42, 43. See, also, Wasson v. Cone, 86 Ill. 48; Kerr v. Swallow, 33 id. 380; Stevison v. Earnest, 80 id. 519.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The question is presented by the rulings below, whether, ■under a replevin bond, conditioned that “the plaintiffs shall prosecute their suit to effect, and without delay, and make return of the said property, if return thereof shall be awarded, ” "there can be a recovery of the value of the property replevied, without proof of a judgment awarding its return. The principle, that the undertaking of a surety is construed strictly, :and can not be varied or enlarged by judicial construction, (Mix v. Singleton, 86 Ill. 194,) would seem to require that a negative answer be given, unless the duty to return the prop■erty necessarily results from the failure to prosecute the suit.It would seem quite clear that that can not be true, because it is provided by section 22, chapter 119, of the Revised Statutes of 1874, that “if the plaintiff, in an action of replevin, .fails to prosecute his suit with effect, * * * judgment shall be given for a return of the property, and damages for the use ■thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the meantime have be■come entitled to' the possession of the property, when judgment may be given against him for costs, and such damages as the -defendant shall have sustained.”

The right of the defendant to the possession and the return of the property is finally determined by the judgment. (Warner v. Matthews, 18 Ill. 83.) And since the record here in evidence awarded no return, we must assume that it was made-to appear to the court that the plaintiff in the suit had become-entitled to the possession of the property, for, in the absence-of anything showing to the contrary, it is always to be assumed that the judgment rendered by the court was the right judgment to be rendered in the case. St. Louis and Southeastern Railway Co. v. Wheelis, 72 Ill. 538; Camp v. Small, 44 id. 37 Morton v. People, 47 id. 468.

The conditions to prosecute the suit to effect, and to make return of the property, are distinct, and the condition is broken and the bond forfeited by a failure in either, (Perrean v. Bevans, 5 Barn. & Cress. 284, Brown v. Parker, 5 Blackf. 291,) and so, evidence of a breach of the former condition can not therefore be held sufficient proof of a breach of the latter condition. Thomas v. Irwin, 90 Ind. 557; Way v. Barnard, 36 Vt. 370; Collamer v. Page, 35 id. 392; Clark v. Norton, 6 Minn. 419; Pettygrove v. Hoyt, 2 Fairfield, (11 Me.) 66; Badlaw v. Tucker, 1 Pick. 284; Kimmel v. Kent, 2 Watts, 432; Ladd v. Prentice, 14 Conn. 116; Cooper v. Brown, 7 Dana, (Ky.) 333; Clary v. Roland, 24 Cal. 148; Gallarati v. Orser, 24 N. Y. 324.

Counsel for appellee say that the record of dismissal “shows on its face that it is no legal judgment at all,”—that “the clerk, in writing up his record, has simply copied the judge’s minutes.” If this be true it can hardly help them. If they seek a recovery of the value of the property, the onus is on appellee to show a judgment awarding its return.

The judgments of the circuit and Appellate courts are reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion. Appellant’s costs in the Appellate Court will be taxed by the clerk of this court, on certificate of clerk of the Appellate Court.

Judgment reversed.


author: Mr. Justice Scott

text:
    Cortez B. O’Hair v. William H. Wilson.

      Filed at Springfield March 28, 1888.

    1. Elections—voting in another State—effect upon the right to vote here. The fact that a citizen and legal voter of this State, while temporarily engaged in business in another State, voted at some election there without right, will not deprive him of his right to vote in this' State.
    2. Same—failure to n/amber ballot. The failure to number the ballot of a voter at an election, while an irregularity, it is not of such a character as to deprive the voter of his vote.
    Appeal from the County Court of Coles county; the Hon. S. C. Hensley, Judge, presiding.
    Messrs. Craig & Craig, and Mr. A. J. Fryer, for the appellant.
    Mr. F. K. Dunn, and Mr. T. Stoddert, Jr., for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This proceeding was commenced in the county court of Coles county, by petition, under the statute, to contest an election. At an election for town officers, held on the fifth day of April, 1887, Cortez B. O’Hair and William H. Wilson were opposing candidates for the office of town clerk of the town of Seven Hickory. The canvassing board of the town gave the certificate of election to O’Hair, and Wilson then filed the petition herein to contest his election. On the hearing of the cause the court found that each candidate had received the same number of legal votes, and thereupon entered an order on the opposing candidates “to draw lots” to decide the contest, which they did, and as Wilson was successful, the decree of the court was in his favor, establishing his right to the office. To the findings and decision of the court O’Hair excepted, and brings the case to this court on appeal.

All the questions discussed as arising on this record, with perhaps a single exception, are purely questions of fact, concerning which the evidence is quite conflicting. In such cases the rule most commonly observed is to allow the determination of the trial court to stand. It is for the reason that court has some advantages for settling controverted questions of fact not possessed by this court.

It is assigned for error, the court improperly found that James McCoy, Charles Wood, Dennis Tehan, Paddy Tehan and John Tehan, all of whom voted for, and whose votes were counted for, O’Hair, were not legal voters. On the testimony submitted, the court found the five persons named were not legal voters at the election in question, and on a careful consideration of the evidence this court can not say that finding was incorrect, or that it would have found otherwise had the question of their qualifications to become voters at that election been submitted to it as on first impression.

It is also assigned for error, the county court improperly found that Ed Sharp, who voted for Wilson, and whose vote was counted for him, was a legal voter. As respects this voter the testimony is full to the point he had been a citizen of this State for a great many years. He enlisted in the military service of the government, in this State, and after his term of service expired he returned to this State, and distinctly testifies it has been his home ever since. He was temporarily in the State of Indiana, engaged, perhaps, in getting out railroad ties for some contractor. While in that State it seems he voted once at some election, but he had no right to do so. He was at the time a citizen of Illinois. That fact sufficiently appears from the testimony, and there was no error in the court in holding he was a legal voter.

Lastly, it is said the court erred in counting the unnumbered ballot for contestant, Wilson. As respects this ballot, defend-» ant was himself a witness, and stated he acted as clerk of the election; that when the moderator called off the number, he “told him it showed there was a mistake,—one number too high; he said the last ballot put in the box numbered one next lower number than that; consulted about the matter; did not know how to fix it; consulted with the board; we almost came to the conclusion the way to fix it, put that unnumbered,— that would make the number in the ballot-box and the poll-list correspond; put the number on the poll-list.” This explanation as to how the unnumbered ballot came to be placed in the ballot-box is copied literally from the transcript of the record, and while it must be conceded the statement in regard to it is not very lucid, it does show it was done with the best intention, and with an honest purpose to correct what was thought to be a mistake. It was done after consultation by the board. Such an irregularity as that will not and ought not to deprive the citizen of his right to have his vote counted for the candidate of his choice. The case of Hodge v. Linn, 100 Ill. 397, is conclusive as to this view of the law.

After deducting from the number of votes cast for defendant the votes of the five persons found not to be legal voters, and counting the vote of Sharp for contestant, the court found the vote to be a tie, and ordered the parties to settle the contest by “lot,” as the statute provides shall be done, under the direction of the town clerk, in case two or more persons shall have an equal number of votes for the same office, which was done, and as the result was in favor of contestant, the court decreed in his favor.

No material error appearing on this record, the decree of the county court must be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Julia C. Schimp v. The Cedar Rapids Insurance Company.

      Filed at Springfield March 28, 1888.

    1. Insurance—premium note—when payable—a condition in such a note construed. A promissory note for a part of a premium of insurance, payable nearly a year after date, provided that in case of a loss under the policy it should become due and - payable on the date of such loss: Held, that if a loss occurred for which the company was liable, the note was to become due on the date of such loss.
    2. Same—waiving a right of forfeiture—accepting a maturing premium. Where a party insured has been guilty of some breach or breaches of the conditions of his policy, and the insurer, with full knowledge thereof, during the pendency of the risk, accepts a maturing premium, or does any other act recognizing the continued existence and validity of the policy, such acceptance or other act. will operate as a waiver of the right of forfeiture occasioned by such breaches, unless something appears to show it was not intended to have that effect, and the assured so understood it.
    3. But upon the delivery of a policy of insurance and commencement of the risk, an insurance company acquires a present vested right in the premium as an entirety, and a loss and termination of the risk before payment of a part of the premium, upon which credit was given, will not deprive the company of the right to receive the unpaid premium.
    4. In this case, a person in obtaining insurance against loss by fire gave his promissory note for a part of the premium, payable about one year after its date, with a clause therein making the same fall due sooner in case of a loss. A loss occurred, and at the time of the loss the company had a complete defence to any suit on the policy, based on a breach of the conditions of insurance. After suit brought on the policy, the insured paid the insurance company the premium note: Held, that the company, by receiving payment of the note on the balance of • the premium, did not, in any way or manner, abandon or waive its defence to the action.
    5. Same—right of forfeiture—when and how asserted. An insurer is not required to formally declare a forfeiture of a policy of insurance upon the breach of a condition therein contained, but it will be sufficient to set up such breach in defence when sued for the loss.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

      Mr. J. S. Wolfe, for the appellant:
    By accepting payment of the premium note after the grounds of forfeiture were known to the company, it waived its right to insist on the forfeiture. Insurance Co. v. Spankneble, 52 Ill. 57; 16 Bradw. 528; Mershon v. Insurance Co. 34 Iowa, 87; Walt v. Insurance Co. 19 Barb. 440; 2 Wood on Insurance, 1163, note 2; Webster v. Insurance Co. 36 Wis. 67; Insurance Co. v. Insurance Co. 20 Barb. 468.
    Messrs. Gere & Philbrick, and Mr. C. J. Deacon, for the appellee:
    The acceptance of the premium money, secured by note, was not a waiver of the defence, which was already a perfect one. It could not mislead the assured or change her conduct. Insurance Co. v. Amerman, 119 Ill. 329; May on Insurance, 507; Davidson v. Young, 38 Ill. 152; Flower v. Elwood, 66 id. 447; Powell v. Rogers, 105 id. 318; Insurance Co. v. Paul, 10 Bradw. 440; Insurance Co. v. Schimp, 16 Bradw. 264; Insurance Co. v. Reddin, 120 U. S. 183; Smith v. Insurance Co. 64 Iowa, 728; Beatty v. Insurance Co. 68 Pa. St. 9; Flanders on Insurance, 593, note.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action of assumpsit, brought by the appellant, Julia C. Schimp, in the Champaign circuit court, against the; Cedar Rapids Insurance Company, to recover-a loss by fire,, under a policy issued to her by the company, June 16, 1882, on her dwelling, furniture, etc., to the amount of $1500. The-premium ivas $21.50, $10 of which was paid in cash, and a, note given for $11.50, payable June 1, 1883, with this provision in it: “This note is given for insurance, and in case of loss under the policy for which it is given, becomes due and payable on the date of such loss,”—which we understand tornean, that if a loss occurred for which the company was. liable, the note was to become due'on the date of such loss. ’The property covered by the risk was destroyed by fire on the 18th of February, 1883. Suit was commenced on the 12th of April, following, and the premium note was paid by appellant to appellee, through a bank, on the 28th day of May, 1883, being a month and a half after the suit was commenced. The plaintiff having been unsuccessful in both the lower courts, brings the case here for review.

Appellee set up as a defence, in the trial court, certain breaches of the conditions in the policy. Appellant’s counsel do not question the truth of the facts constituting the defence thus set up, but insist. that the company is not in a position to avail itself of that or any other defence, by reason of its having accepted payment of the premium note after having obtained full knowledge of all the facts and circumstances constituting the defences made to the action. Indeed, it is conceded that if the company has not waived the right to set up the defences relied on, by reason of having accepted such payment, the judgments below are right, and ought to be affirmed. A recurrence to a few well settled principles, it is believed, will relieve the question thus presented of all real or apparent difficulty.

That the company had a complete defence to the action ofi the policy at the time the suit was commenced, is admitted. But this, like most other rights, is one that might be abandoned, released or waived. There is no pretense that it has been released, intentionally abandoned, or expressly waived, so that if there has been a waiver at all, it is what is known to the law as an implied waiver. This class of waivers is frequently to be met with in the law of insurance. Thus, where the assured has been guilty of some breach or breaches of the conditions of the policy, and the insurer, with full knowledge thereof, during the pendency of the risk, accepts a maturing premium, or does any other act recognizing the continued existence and validity of the policy, such acceptance or other act will operate as a waiver of the right of forfeiture- occasioned by said breaches, unless something appears to show that it was not intended to have that effect, and that the assured so understood it. This well recognized rule in the law of insurance is founded, at least in part, upon the fundamental principle, that one having the exclusive right to terminate art executory contract, must abrogate it altogether, if at all. He can not be heard to say it is valid for one purpose, and, in the-same breath, that it is invalid for all other purposes, but it is. founded chiefly upon the general principles of common honesty and natural justice, which the law exacts of mankind in their intercourse and dealings with one another.

The doctrine of waiver, however, in our opinion, has no application whatever to the facts of this ease. The act of the company relied on as a waiver of its right of defence, occurred long after the risk under the policy had terminated by the happening of the contingency insured against,—long after the-defendant had refused payment of the loss, on the ground there had been a forfeiture of the policy, and in the face of an. action brought to enforce the payment of such loss. {

The cases relied on by appellant’s counsel differ materially in their facts from the present case, and, in our opinion, fall far short of sustaining the position in support of which they are cited. The policy being a valid obligation and binding contract between the parties, upon its delivery to the assured the risk attached, and commenced running, and would have continued to run until the loss occurred, but for the breach of its conditions by the assured, which rendered it void at the election of the company, and it is not claimed that there was any waiver of such breach until after the commencement of the present suit. The insurer is not required, in such case, to formally declare a forfeiture. It is sufficient to set it up by way of defence when sued for the loss, as was done in this ease.

The waiver or estoppel relied on can not prevail. It is destitute. of that element which is most essential to either. It does not appear, nor is it claimed, that the assured has been misled in any manner, to her prejudice, by the company accepting payment of the note. "What other course of conduct could the appellant have pursued than that which she did? She simply prosecuted the suit previously commenced by her against the company, to its termination, the company, from the beginning, denying its liability. As the payment of the note is the only ground on which she now claims she ought to recover, it is clear such payment could not have contributed to her failure to succeed in the courts below. The ground of recovery now urged is, in legal effect, an admission that there was no right of recovery when her suit was commenced. The payment to the company, therefore, so far from misleading her, to her injury, has, according to her present contention, greatly improved her prospect of success. Upon the "delivery of the policy and commencement of the risk, the appellee acquired a present vested right in the premium, as an entirety. The payment of part of it was merely postponed, and consequently the company had the right to receive the money. But' however this may be, we are clearly of opinion that the receiving of it did not operate as a waiver of the breaches of the conditions of the policy.

The view here taken is fully supported by, the late case of Northwestern Mutual Life Ins. Co. v. Amerman, 119 Ill. 329, and the authorities there cited.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Jesse Kinsley v. The City of Chicago.

      Filed at Springfield March 28, 1888.

    X. Municipal corporations—license for the sale of meats, etc.—power to require license to he taken out. Under the grant of power “to regulate the sale of meats, poultry, fish, cheese, lard, vegetables, and all other provisions, and to provide for a place and manner of selling the same,” a municipal corporation may require that a license shall be obtained for the selling of such articles.
    2. An incorporated city having the power “to make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease,” has the right to require all sellers of meats to take out a license. Regulations in respect to the selling of meats have relation to health and disease.
    3. Same—license fee—whether it may he exacted—and as to the amount. Under a power to regulate a calling or business, merely, with no express powers of taxation, a license fee may be exacted, and the fact that such fee may exceed the necessary or probable expense of issuing the license and inspecting the business it covers, will not render the fee exacted illegal or unreasonable.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Bollen S. Williamson, Judge, presiding.
    Mr. C. B. Sampson, and Messrs. Barnum, Rubens & Ames, for the appellant:
    Municipal corporations must in all cases show a plain and clear grant for the authority they assume to exercise. 1 Dillon on Mun. Corp. secs. 16, 87, 89.
    The enumeration of the occupations that cities may license implies the exclusion of all others. Thomas v. Railroad Co. 101 U. S. 82; City of Cairo v. Bross, 101 Ill. 475.
    In clauses 9, 13, 14, 15-22, 24, 33, 34, 49, 50, 52, 53, 54, 57, 58, 60, 65, 66, 79, 81, 82, 92 and 93, of section 1, article 5, of the Incorporation act, the word “regulate” is not coupled with either the words “to license,” “or to tax.” This would seem to indicate that by the use of the words “to regulate,” no power to license or tax is conferred.
    Mr. Frederick S. Winston, and Mr. John W. Green, for the appellee:
    The power to exact a license in this case is found in article 5, section 1, clauses 50 and 78, of the act relating to cities and villages. Licensing is one of the proper modes of regulating an occupation.
    In some of the States a license is issued under the police .power, but the exaction of a license fee with a view to revenue would be an exercise of the power of taxation, which must be clearly given. Cooley’s Const. Lim. sec. 201.
    In this and some other States, under the power to license, the city is not confined to the exacting of a mere nominal sum. Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560; Howland v. Chicago, 108 id. 500; Braun v. Chicago, 110 id. 186; Distilling Co. v. Chicago, 112 id. 19; Dennehy v. Chicago, 120 id. 627.
    The power to regulate a business or Occupation includes the power to license, as one of the appropriate means of regulation. Provision Co. v. Chicago, 88 Ill. 221.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of affirmance by the Appellate Court for the First District, of a judgment of the Criminal Court of Cook county, for a penalty for keeping a meat market in the city of Chicago, and selling meats without a license, in violation of sections 1575 and 1579 of the revised ordinances of said city, as amended by the ordinances of July 10,1882, and February 26, 1883. The'only question presented by the record in this case is as to the validity of the aforenamed sections, in imposing a license fee of fifteen dollars per annum upon vendors of meats.

The city’s claim of authority for the requirement of the license is under the two following grants of powers of the general Incorporation act, under which the city of Chicago is organized:

“Fiftieth—To regulate the sale of meats, poultry, fish, cheese, . lard, vegetables, and all other provisions, and to provide for a place and manner of selling the same.”

■“Seventy-eighth—To do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.”

Although there is nokhere given, in express terms, the power to license, it is insisted, on-behalf of the city, that as the power to regulate is expressly given, that power includes the power to license. This precise point was so adjudged by this court in Chicago Packing Co. v. City of Chicago, 88 Ill. 221, where it was held, that the 81st clause of section 62 of the general Incorporation act, giving cities and villages the power to direct the location of, and regulate the management and construction of, packing houses, etc., confers the power to license such establishments, as one of the means of regulating the same. It is admitted by appellant’s counsel, that if that decision be adhered to, the judgment here must be affirmed, and a reconsideration is asked of the doctrine announced in that case.

It is said, that in examining the terms used in conferring the various powers as enumerated in the general Incorporation act, we find, in many instances, the words “to regulate” stand alone, not coupled with either of the words “to license” or “to tax;” that in other instances the words “to license” or “to tax,” or both,' are added to the words “to regulate,” whence it is argued that the legislature did not intend that the power “to regulate” should carry with it and include, ipso facto, the power to license,—that the power here containing merely the words “to regulate,” reading it in the light of the whole act, and applying the canons of interpretation applicable to municipal charters, the omission of the words “to license” is tantamount to an express denial of a power to license. We think this a too technical construction to be applied. After an attentive consideration of the ingenious argument of counsel in this respect, we fail of being satisfied that our former construction of the power in question, in 88 HI., was erroneous, and we must still adhere thereto, regarding to license a business a legitimate means of the regulation of the business. All licenses issued by the city are made subject to the ordinances of the city, and upon a licensee violating any of the provisions of such ordinances, his license may be revoked by the mayor. The issuance of a license which may be promptly revoked upon the failure of the licensee in the observance of the regulations of the city concerning his occupation, is an efficient means of securing the faithful observance of such regulations. Regulations in respect to the selling of meats have relation to health and disease, and we think the city of Chicago has the power to require all sellers of meats to be licensed, under the charter power to regulate the selling of meats, and under the power to “make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.”

It is next insisted, that if the power “to regulate” confers the power to require a license, then the license fee can not be fixed at such a sum as will result in producing a revenue for the city; that to sanction such a result there must be expressly given the power “to tax.” Cooley on Taxation, (1st ed.) 408, in speaking of grants of power to license, remarks: “Where the grant is not made for revenue, but for regulation, merely, a much narrower construction is to be applied. A fee for the license may still be exacted, but it must be such a fee, only, as will legitimately assist in the regulation, and it should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers. If the State intends to give broader authority, it is a reasonable inference that it will do so in unequivocal terms.” Under the narrow rule of construction thus laid down we would not regard the amount of the license fee in this case as obnoxious to objection. But this court has always applied a more liberal rule of construction in reference to license fees. Wiggins Ferry Co. v. East St. Louis, 102 Ill. 560; Howland, v. City of Chicago, 108 id. 500; Braun v. City of Chicago, 110 id. 186; Distilling Co. v. City of Chicago, 112 id. 19; Dennehy v. City of Chicago, 120 id. 627. In the above cases license fees in quite large amounts, and, manifestly, in part, at least, for revenue, were sustained. And the force of those decisions, in their application to the present case, is not avoided by the fact that there was given, there, express power to tax, license and, regulate, as the license fees were sustained under the power to license, and not under the power to tax.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.