text:
    Percy E. North v. Lewis L. Lehman.
    1. Taxes — Right to Reimbursement by the Holder of a Tax Deed in a Partition in Which He Is Not a Party. — A person who holds what he claims to be an independent title in fee under a tax deed may intervene in a partition suit to which he is not a party and set up his deed as a complete defense, and when defeated, may ask and is entitled to re-imbursement for taxes paid by him in good faith on the lands in question.
    Partition. — Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the August term, 1901.
    Reversed and remanded with directions.
    Opinion filed October 31, 1901.
    Statement. — Appellee, Lewis L. Lehman,on November 24,1899, filed his bill for partition of the E. ½ of the N. E. ¼ and the E. ½ of the W. ½ of the N. E. ¼ of Sec. 18, Town. 9 S., range 3, W. of 3d P. M., in Jackson county, Illinois, making James M. Pulliam, William Pulliam, Ralph Boaz and L. DeWitt, parties defendant.
    The bill alleged title in fee, as heirs of John M. Pulliam, who died intestate in 1884, in complainant, James M. Pulliam, and in Ealph Boaz, subject to the dower interest of his father, William Boaz. DeWitt’s interest, if any, was that of tenant.
    On the 15th of January, 1900, Percy E. North, having obtained leave of court, answered said bill denying that said parties had title, and claiming title in fee in himself by virtue of a tax deed for the N. E. ½ of Sec. 18 in the town and range before mentioned. He claimed to have obtained said tax deed in 1896 and that DeWitt, party defendant to original bill, was his tenant.
    The answdr of appellant sets up a sale in 1896 for the taxes of 1895, to Wm. E. Jones; the assignment by him of the certificate of purchase to Elisha Dillon; assignment by him to Thomas E. North, and by him on January 4, 1898, to Percy E. North, and the issuance of the tax'deed on July 30.1898. Said answer purports to set up in Tiaee verba the notice, affidavit, etc., necessary to the issuance of the tax deed. '
    James M. Pulliam, William Boaz and L. DeWitt failing to answer, were defaulted. Ealph Boaz, a minor, answered by guardian ad litem.

    Upon the hearing of the cause the court found title as set up in complainant’s 'bill and appointed commissioners to partition. Upon their report that division could not be made, the land was ordered sold, and having been sold the proceeds were brought before the court for final distribution. The decree recites that the cause came for a final hearing upon the bill, the answer of the defendant, Percy E. North, and the answer of the guardian ad litem of the minor defendant, Ealph Boaz, etc. It finds title in fee in the parties as set up in the original bill, and that no other person or persons “ have any claim, interest in or title to the said lands,” and specifically finds that appellant, Percy E. North, has no interest in said lands.

      At the succeeding term of said Circuit Court, appellant filed his petition, setting up that upon the trial of the case, his tax title had been held so defective that he had no legal title to the premises sought to be partitioned; that at the time of the rendition of the decree, leave had been given until the first day of the next ensuing term to file his petition to be re-imbursed out of the proceeds of the sale of the land to the amount of the taxes and improvements he had paid and made while holding it under his tax title. The petition also sets up the sale of the land by the master for $1,200: the sale for taxes in 1896, during the lifetime of the owner, John W. Pulliam; that upon the hearing of the cause he had intervened and claimed title by virtue of his tax deed; states the amount of taxes he had paid since and including the year 1896, and claims to be re-imbursed with interest for such amounts. It appears to present in appropriate form the facts necessary to a recovery of the taxes paid by petitioner if such recovery can be had in this proceeding.
    To the petition a general demurrer was filed, which was sustained by the court, and petitioner appeals.
    F. M. Youngblood, attorney for appellant.
    James H. Martin, attorney for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

The grounds of appellee’s demurrer are set out in substance,- by counsel in their brief, as follows:

“Can.a person who holds what he conceives to be an independent and com píete title in fee, intervene in a partition suit to which he is not made a party, * * * set up his tax deed as a complete defense, and when defeated, then come in and ask re-imbursement for taxes voluntarily paid on the lands of another, and this, too, when there is no proceeding, prayer in bill, or order in the decree, seeking to set aside said tax deed, or setting the same aside ? ”

The answer to this is, that appellant, by leave of court, did intervene by way of answer to complainant’s bill, claiming title through his tax deed. Complainant filed his replication to appellant’s answer, thus making an issue on appellant’s claim of title. By thus attacking appellant’s tax deed, he did in effect what he would have done if he had filed a bill to cancel the tax deed as a cloud upon the title.

The court decided this issue in favor of complainant in the original bill. The decree finds that the case was heard upon the bill of complaint and the answer of appellant, and upon evidence, etc., to sustain both bill and answer. It finds that the court had jurisdiction of the subject-matter and of all parties to the proceeding; that title in fee was in the parties as alleged in the bill. It also finds that no person or persons, other than the complainant and the last named defendants (James M. Pulliam, Ralph Boaz and William Boaz,) have any claim, interest in or title to the said lands, or to any part thereof, in possession, remainder, reversion or otherwise, and that Percy E. North and L. DeWitt (his tenant), have neither any interest therein.

Appellant abides by the decree. This finding and decree as effectually disposed of appellant’s tax deed as if appellee had filed a bill to set it aside as a cloud upon his title and had obtained a decree to that effect. But if he had done so, the owners of the land would have been required to do equity by re-imbursing appellant for the taxes he had paid.

Appellant asks that they be required to do in the case at bar what they would have been required to do if they bad been complainants seeking to set aside his tax deed, inasmuch as in the case at bar his tax deed has been litigated and held for naught.

Why is he not entitled to the relief prayed? Courts of equity look to substance rather than to form. It is also a well established rule of practice, that when a court of equity has before it the necessary parties and has jurisdiction of the subject-matter, that it will not leave another tribunal to finish its work, but will do complete justice to all parties upon all matters involved in the case.

Nor was appellant an improper party defendant in the case. Sec. 6 of Chapter 106, Hurd’s Stat., entitled Partition, provides “that every person having any interest, whether in possession or otherwise, and who is not a petitioner, shall be made a defendant to such petition.”

Appellant claimed title and seems to have been in possession through this tenant, De Witt, who was made a party defendant to the original bill.

Sec. 15 of the same chapter provides: “The court shall ascertain and declare the rights, titles and interest of all the parties to such suit, the petitioners as well as the defendants, and shall give judgment according to the rights of the parties.” Appellant by his petition asks that this shall be clone; “ only this and nothing more.”

Counsel for appellant quote from Gage v. Eddy, 186 Ill. 432:

There is no rule of law or maxim of equity which he (the purchaser at a tax sale) may invoke, to compel the owner of property to re-imburse him the amount he has invested in the venture, except in the event the property owner asks the aid of a court of equity to cancel the tax purchases, as clouds upon his title to his property.”

Admitting this to be the law, we think that the action of appellee in replying to appellant’s answer, and thereby making an issue upon his tax deed, trying that issue and obtaining a decree that virtually cancels such deed, in effect brings this case within the exception stated in the above quotation.

The judgment of the Circuit Court will therefore be reversed and the case remanded, with directions to ascertain and decree to be paid to appellant such amounts, if any, as the owners of the land partitioned would have been required to pay him if they had filed a bill to cancel his tax deed as a cloud upon their title, and had secured a. decree to that effect. .Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Gerhard Schottman v. L. H. Clearwater.
    1. Findings— Of a Chancellor on Conflicting Oral Evidence Conclusive. — The findings of a chancellor based on conflicting oral testimony will not be disturbed on appeal, in the absence of clear and palpable error.
    2. Costs — In Chancery Proceedings. — In all cases in chancery not otherwise directed by law, it is in the discretion of the court to award costs or not, and the exercise of such discretion will not be reviewed except for abuse.
    Bill for an Injunction. — Appeal from the Circuit Court of Jasper County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 21, 1901.
    George W. Fithian, R. J. Kasserman and II. M. Kasserman, attorneys for appellant.
    Gibson & Johnson and I. D. Shamhart, attorneys for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery, in the Circuit Court of Jasper County, by appellant against appellee, to enjoin appellee from constructing a certain ditch and from discharging ■water upon the lands of appellant, and a cross-bill by appellee against appellant to enjoin appellant from maintaining certain headlands, dams, dikes and obstructions. Upon final hearing the Circuit Court denied the relief prayed by appellant, dismissed his bill, granted the relief prayed by appellee in his cross-bill, and decreed that appellant pay the costs.

The errors assigned are :

“ First. The court erred in dismissing the original bill and denying to the complainant the relief prayed therein. Second. The court erred in decreeing to the cross-complainant the relief prayed in the cross-bill. Third. The court erred in decreeing to the cross-complainant any relief whatever. Fourth. The court erred in decreeing the complainant to pay the costs of suit. Fifth. The court erred in not decreeing the cross-complainant to pay the costs of suit. Sixth. The court erred in denying to the complainant the relief prayed for in his original bill.”

The respective bills and answers raised controlling issues of fact. To resolve these issues, some thirty witnesses were produced and testified pro and con. The testimony was conflicting and in some instances directly contradictory. The case must turn wholly upon the weight of the evidence as to the various controlling issues of fact involved.

The testimony was taken orally in open court. The presiding judge heard' and saw the witnesses. The findings of the chancellor based on conflicting oral testimony will not be disturbed on appeal, in the absence of clear and palpable error. Hawley v. Hawley, 180 Ill. 594; Village of Itasca v. Schroeder, 182 Ill. 192; Kinnah v. Kinnah, 184 Ill. 284.

Concerning costs in chancery cases, the statute, Chap. 33, Sec. 18, Hurd’s, 1899, provides that in all cases in chancery, not otherwise directed by law, “ it shall be in the discretion of the court to award costs or not.” The exercise of the discretion provided for in this statute will not be reviewed, except for abuse. Askew v. Springer, 111 Ill. 662; Rodgers v. Tyley, 144 Ill. 652.

We find no substantial- error in this record. The decree of the Circuit Court is affirmed.

CASES IN THE APPELLATE COURT OF ILLIIOIS. First District — March Term, 1901.


author: Mr. Justice Sears Mr. Presiding Justice Windes :

text:
    Chicago Yacht Club v. Clarence W. Marks.
    1. Riparian Rights —Former Decisions — Application of the Case of The City of Chicago v. Ward (169 Til. 392). — Where the allegations of a bill for an injunction disclose that the structure sought to be enjoined is neither within the lake front park, as at present existing, nor within the tract included by the proposed extension of it, but on the contrary, is outside the government breakwater and the harbor line established by the Federal government, the decision in the case of The City of Chicago v. Ward, 169 Ill. 392, has no application.
    2. Same — Upon Lake Michigan. — The rights of a riparian owner on Lake Michigan, as announced by our Supreme Court, are limited to the boundaries of his land extended, and consist only of the common law rights of access to the lake from his property, within its width, and to natural accretions.
    3. Riparian Owners — Rights of View. — No authority is cited in this case applicable to riparian rights of owners, which holds that a riparian right owner can protect his view over the water, except it may be in cases where he is the owner of the soil under the water to the center of a stream, and such authorities have no application to the owners of riparian rights upon Lake Michigan. 1
    4. Injunctions — Restraining Interference with Riparian Rights.— The builders of a structure which in no measure interferes with an owner’s access to his land or to the natural accretions incident thereto will not be enjoined at the suit of a private owner.
    Bill for an Injunction. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Mr. Justice Windes concurring in part.
    Opinion filed October 10, 1901.

      Statement. — This is an appeal from, an interlocutory order of injunction, restraining appellant from proceeding with the erection of a club house in the Chicago harbor of Lake Michigan at a place east of the lake front park of the city of Chicago.
    The appellee, upon whose bill of complaint the order was issued, is the owner of premises located at the southwest corner of Michigan avenue and Washington street, fronting upon the lake front park. These premises are a part of the Fort Dearborn addition-to Chicago.
    The bill of complaint alleges that appellee derives his title to the premises through mesne conveyance from the United States, and that the premises were purchased by his grantórs and himself by reference to the plat of Fort Dear-born addition, which showed the land lying east of these premises, between them and Lake Michigan, i. <?., the lake front park, to be a public park to be forever free from any buildings, and that by reason of such restriction upon building upon the said lake front park, the premises of the appellee have an enhanced value; that said Fort Dearborn addition extended from Randolph street on the north to Madison street on the south, and prior to the filing of said plat or subdivision, the canal commissioners of the Illinois & Michigan Canal, acting as agents for the State of Illinois, laid out, acknowledged and filed a plat of fractional section 15, which property bounded the Fort Dearborn addition on the south and extended from Madison street on the north to Park Bow on the south, and that the eastern part of said plat was designated as Michigan avenue; and that said commissioners sold lots facing upon said open space marked Michigan avenue with reference to said plat, and announced to the purchasers and the public that Michigan avenue and the land east thereof was an open, public park; that the city of Chicago has accepted such dedication of the lake front park as a public park, and has expended large sums of money in the maintenance and improvement of said park; that the submerged land' lying east of the right of way of the Illinois Central Bailroad to the government breakwater established by act of Congress in the year 1890, and from Randolph street on the north to Park Row on the south, had been added to said park by appropriate acts of the common council and the State of Illinois, and the city of Chicago and the South Park commissioners are filling in and reclaiming said land for the purpose of adding the same to lake front park. That said portion added to the original limits of lake park is impressed with the same conditions, restrictions and prohibitions that attach to and impose upon the original limits of lake front park; that appellant is causing to be constructed upon piles immediately east of and adjoining said breakwater, which defines the eastern boundary of said lake park, and at the foot or about the foot of Monroe street, and opposite the lots of appellee, and is continuing to build and erect a certain frame club house or building to the height of about sixty feet above the sur- ' face of the water, and of a length horth and south of about eighty feet, and proposes to use said building and club house for the purpose of a club house for its members; that the. erection of said building prevents and obstructs the uninterrupted view of the waters of Lake Michigan from the lots of appellee and the right of ingress and egress from Lake Michigan to appellee’s lots and the lots of other owners abutting on Michigan avenue, and interferes with the rights of appellee which exist by reason of representations made by the United States Government and the canal commissioners, as aforesaid.
    The bill alleges that appellant, being fully advised of the character of lake front park and of the rights of abutting property owners thereon, conspiring to evade the law, has caused its club house to be located just east of the defined limits of the lake front park.
    The bill also sets up the decree in the suit of Montgomery Ward et al. v. The City of Chicago, in relation to the lake front park, and the decision of the Supreme Court of Illinois affirming such decree. The prayer of'the bill as ' against appellant is for temporary and permanent injunction, restraining it from continuing with the erection of its club house.

      Upon the exhibition of the bill of complaint, the court below granted the temporary injunction as prayed for, and it is from that order that the appeal here is prosecuted.
    The history of the lake front park and the various legislation which has been enacted in relation to it, will be found set forth at length and with great care in the statement preceding the opinion of the Supreme Court in City v. Ward, 169 Ill. 392.
    George B. Shattook, N. W. Hacker and Charles E. Kremer, attorneys for appellant; Robert Rae, John C. Black and Harry S. Mecartney, of counsel.
    George P. Merrick, attorney for appellee; John P. Altgeld, of counsel.
   Mr. Justice Sears

delivered the opinion of the court.

It is sought by the learned counsel for appellee to sustain the order of injunction appealed from upon the ground that appellee, as owner of premises abutting upon the lake front park, is entitled, as if he were shore owner, to protection against the encroachment by appellant’s club house. In this behalf it is argued that the city of Chicago is the riparian owner as trustee, and that appellee, as one of cestui que trust, may maintain this bill to protect riparian rights. It is also contended that by reason of the representations of the United States government and the canal commissioners, appellee bought these premises relying upon the lake front, park being kept free from all buildings, and that this building of appellant is an invasion of appellee’s rights thus acquired.

These contentions are based upon the supposed application of the decision in City v. Ward, 169 Ill. 392.

We are unable to assent to these contentions of counsel, or to either of them, and we are of opinion that the decision in the Ward case is not applicable to the facts disclosed by this bill of complaint.

The substance of the decision in the Ward case, so far as need be here considered, is to the effect that the lake front park was dedicated to the public as an open park; that in the absence of consents from abutting property owners, the city of Chicago has no right to erect or permit the erection of any building upon the lake front park, and that owners of lands abutting upon this park may maintain a bill in equity to enjoin the city from using the park for purposes prohibited by the terms of the trust under which the dedication was accepted. It is also held, in effect, that the city of Chicago is vested with the riparian rights incident to the land embraced in the lake front park, and that the city holds such riparian rights in trust in the same manner that it holds title to the land composing the lake front park itself.

In the opinion delivered by Mr. Justice Carter, speaking for the court, it is said :

“ The main question involved in this litigation is, has the city of Chicago a right to erect, or to permit to be erected, any buildings on the tract of land known as lake park.”

If, in this cause, the right of appellant to erect a building on the tract of land known as lake park was involved, we would have no hesitation in holding that the decision in the ■ Ward case applied and governed here. But there is no allegation in this bill of complaint that appellant is causing any building to be placed upon the park. On the contrary, it is specifically alleged that appellant is building “ at the foot of Monroe street ” and “ upon piles immediately east of and adjoining the said breakwater which defines the eastern boundary line of said park,” and, further, that appellant, its agents, officers and representatives, “ being fully advised of all the provisions, inhibitions and purposes of said decree, and conspiring and conniving and seeking to evade the same, have caused said building, in so far as it has progressed, to be located just east of and adjoining the defined limits of said lake park, but immediately adjacent or contiguous thereto, so that said building, although not actually upon said land or waters of the park itself, or within the exact limits thereof, is so immediately adjacent or connected therewith, that its existence in its present location obstructs the view of Lake Michigan in the same way and substantially to the same effect as if placed adjacent to the western wall of said breakwater and within the defined limits of said lake park.”

It is alleged in the bill that an ordinance of the city of Chicago, enacted on October 21,1895, provided that for the purpose of providing suitable public landing places for steam vessels and other crafts employed in navigation on Lake Michigan, the public grounds of the city of Chicago, known as lake park, lying east of Michigan avenue, between the south line of Randolph street and the north' line of Lake Park Place, formerly known as Park Row, shall be extended east of the tracks and grounds of the Illinois Central Railroad Company, by inclosing and filling all that space in the shallow waters of Lake Michigan within the outer harbor, so-called, included within the following boundary lines, to wit: The south line of Randolph street produced on the north; the harbor line established by the secretary of war September 22,1890, on the east; the south line of Lake Park Place produced, on the south, and the present westerly shore line of the said outer harbor on the west; and that by virtue of said ordinance the city proceeded to fill in the submerged portion of said park, together with the South Park commissioners, and they are now actively engaged in the work of filling in said park.

But the allegations of the bill disclose that appellant’s structure is neither within lake front park as at present existing, nor within the tract included by the proposed extension; and that on the contrary, it is on the outer harbor, outside of the government breakwater, and outside of the harbor line established by the Federal government. We are unable, therefore, to see the application of the'decision in the Ward case to the present appeal. The right of Mr. Ward to maintain his suit, as sustained by the decision of the Supreme Court, is the right of an abutting property owner on Michigan avenue to protect the lake front park from any use contrary to the uses and purposes to which it was dedicated and for which the city of Chicago holds it in trust. The enactment of the legislature of the State reducing the act incorporating the city of Chicago and its various amendments to a single act (Section 43 of chapter 7, enacted February 12, 1863), provided :

“ No encroachments shall be made upon land or water west of a line mentioned in the second section of an ordinance concerning the Illinois Central Railroad (which line is not less than 400 feet east from the west side of Michigan avenue, and parallel thereto), bv any railroad company, nor shall any cars, locomotives, engines, machines or "other things belonging to any railroad or transportation company be permitted to occupy the same, nor shall any cars or machinery be left standing upon said track fronting any part of Michigan avenue, nor shall the city council eve"r allow any encroachments west of the line above described. Any person being the owner of or interested in any lot or part of a lot fronting on Michigan avenue shall have the right to enjoin said company, and all other persons and corporations, from any violation of the provisions of this section or of said ordinance, and by bill or petition in chancery, in his or their own name or otherwise, enforce the provisions of the said ordinance and of this section, and recover such damages for any such encroachment or violation as the court shall deem just. The State of Illinois, by its canal commissioners, having declared that the public grounds east of said lots should forever remain open and vacant, neither the common council of the city of Chicago, nor any other authority, shall ever have the power to permit encroachments thereon without the assent of all the persons owning lots or land on said street or avenue.”

By force of this provision Mr. Ward had standing in a court of equity to maintain his bill, and the decision in the Ward case sets forth this provision in the statement preceding the opinion. But whether the holding in the Ward case that Ward was entitled to maintain his bill was based upon this provision, or upon the broader ground of his right as cestui que trust, irrespective of the enactment, in either event it would not seem to apply in aid of the appellee here. For the appellee is seeking to prevent the construction of a building which, according to .the allegations of his bill of complaint, “ is not actually upon said land or ■waters of the park itself,” but is on the outer harbor and outside of the government breakwater.

If appellee was in fact the owner of the riparian rights incident to his lots, yet it is difficult to see how he could, in ■that event, maintain this bill. The rights of a riparian owner on Lake Michigan, as announced by our Supreme Court, are limited to the boundaries of his land extended, and consist only of the common law right of access to the lake from his property, within its width, and to natural accretions. Revell v. The People, 177 Ill. 468.

We can not find any allegation of facts in the bill of complaint here which would warrant the conclusion that the structure in question would in any measure interfere with appellee’s access to his land or accretions thereto, if he, instead of the city, were the owner of the riparian rights incident to the land in front of his lots and of the width thereof. This structure, built in front of Monroe street, about two blocks south of the lots of appellee, could not have any such relevancy to appellee’s lots. But it is insisted that the structure impedes or will impede the view over the waters of Lake Michigan from appellee’s premises. Ho authority is cited to us which holds that a riparian right owner can protect his view over the water, except, it may be, in cases where he is the owner of the soil under the water to the center thread of a stream. Such cases do not apply to an owner of riparian rights upon Lake Michigan. Revell v. The People, supra.

Moreover, the view from appellee’s premises at the corner of Washington street and .Michigan boulevard can scarcely be said, from the allegation of facts in the bill, to be obstructed by a building in the lake opposite the foot of Monroe street. If appellee could maintain this bill at all, it would be as a cestui que trust of the city and for the protection of the public park which the city holds in trust. We are of opinion that the allegation of the bill of complaint ' that the building of appellant is not upon the land or waters of the park precludes us from sustaining the bill upon this ground. This is not a procedure by the State of Illinois, as owner of land covered by the waters of Lake Michigan, to abate a purpresture; it isa suit sought to be maintained upon the basis of the rights of appellee as owner of premises abutting upon the lake front park, or as a cestui que trust of the city of Chicago, which holds that park in trust.

We are unable to find any way by which appellee’s right to thus maintain the suit may be sustained.

Therefore the order is reversed.

Mr. Presiding Justice Windes :

I have grave doubt as to the correctness of the conclusion reached in this case, but in the absence of any precedent which sustains the injunction, I concur. The city, as a riparian owner of the park in trust for appellee and other lot owners abutting the park, as well as for the public in general, seems to be neglecting its duty to protect its beneficiaries, the lot owners included, from an encroachment upon their right of ingress to and egress from the lake. To hold, as we do, that this appellee must await the action of the public authorities to repress this violation of his right, is certainly a conservative ruling.


author: Mr. Justice Sears

text:
    Malcolm McDonald and Allan C. Durborow, Impleaded, etc., v. Walter C. Judson.
    1. Proceeding for Mandamus — A Common Law Action. — The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure.
    2. Practice — At Common Laio — Taking Judgment Against a Part of the Defendants Only. — At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants.
    3. Same — Two Several Judgments in One Action. — Two several judgments in one action could not be taken at the common law, and there is no provision of our statute regulating proceedings for mandamus which in any way modifies this rule.
    ,4. -Same— In Proceedings for Mandamus. — Under the statute there is no provision regulating the proceedings in applications for mandamus, and the procedure after pleading is to be the same as in other cases at common law.
    5. Same — Illustration of the Rule as to Several Judgments in Mandamus Proceedings. — A party filed a petition for a writ of mandamus against a number of defendants as directors of a corporation. The defendants served with process demurred to the petition and upon their demurrer being qverruled, all the defendants answered but two of them, who elected to abide by their demurrer, and judgment was rendered against them awarding the writ and for costs. Held, upon appeal, that the awarding of the judgment against the defendants abiding by the demurrer was in effect a discontinuance of the proceeding.
    Mandamus. — Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed July 18, 1901.
    Rehearing denied October 7, 1901.
    Appellee filed bis petition for a writ of mandamus to compel appellants and Bonney, Champlin, Clark, Paine, Rollins and Mackenzie, as directors of a corporation known as the Cold Dredging "Co., “to cause to be kept at 511 Tacoma Building, Chicago, Illinois (where the corporation’s office is located), correct books of account of all the business of said company, and there to allow forthwith the appellee (who is a stockholder of said corporation) at all reasonable times, by himself or by bis attorney, to examine the record and books of account of said company.”
    Champlin was not served with process. Bonney, Clark and Paine, after having demurred and their demurrers having been overruled, answered the petition. Mackenzie and Rollins demurred, and upon their demurrer being overruled by the court, they elected to stand by their demurrer. Thereupon the court entered judgment against them, which judgment is in form as follows:
    “ This cause coming duly on to be heard, on the motion of petitioner to dispose of the demurrers of defendants filed herein, and all parties demurring being represented before the court, and after arguments of counsel, and the court being fully advised in the premises, doth overrule each and every of said demurrers, and on motion of petitioner rules the said defendants to plead or answer said petition within fifteen days of this date. Said defendants Mackenzie and Rollins, in open court, refuse to plead or answer same, and except to said ruling of said court, and elect to stand by their said demurrers. Whereupon the court hereby enters judgment on said petition in favor of said petitioner, and against said defendants Mackenzie and Eollins, for his damages and costs of suit, and orders that the said peremptory writ of mandamus, as prayed for in said petition, forthwith issue- against said defendants Eollins and Mackenzie.”
    Appellants, after their demurrer to the petition had been overruled, filed a plea to the petition, which, in effect, set forth that petitioner ought not to be allowed to further prosecute or maintain his said suit against these defendants because they say that since the beginning of this suit and on, to wit, Saturday, the 17th day of February, 1900, of the J anuary term, petitioner recovered a judgment in this cause against two of the defendants herein, to wit, George S. Mackenzie and Charles E. Eollins, for the issuance of a peremptory writ of mandamus against said Mackenzie and Eollins, as prayed for in said petition, without any disposal of this cause against these defendants McDonald and Durborow, as appeared by the record herein, wherefore these defendants say that said petitioner ought not to be allowed to further prosecute or maintain his said action against these defendants, etc., and concluding with verification.
    Appellee demurred to this plea, and the court sustained the demurrer. Thereupon appellants elected to stand by their plea, and the court rendered judgment against them, awarding the peremptory writ, and for damages and costs.
    The judgment against Mackenzie and Eollins was entered on February 17, 1900.
    The judgment against appellants was entered on June 23, 1900.
    Lyman M. Paine, attorney for appellants.
    C. Van Alen Smith, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

The only question presented which it is necessary to determine in disposing of this appeal, is as to the sufficiency of appellant’s plea, i. e., as to the effect of the judgment rendered on February 17, 1900, upon the suit as pending against appellants.

Counsel for appellants contend that the effect of this judgment against two of the defendants was to work a discontinuance as to the other defendants. We regard this contention as sound.

The proceeding for a writ of mandamus is a common law action, and except as may be otherwise provided by statute, it is governed by the rules of common law procedure. Bolton v. The People, 95 Ill. App. 285, and cases therein cited.

At common law, in a suit where it is permitted to take judgment against a part only, of the defendants, the taking of such judgment operates to discontinue the suit as to all other defendants. Davis v. Taylor, 41 Ill. 405; Callaghan v. Myers, 89 Ill. 566; Vieths v. Skinner, 47 Ill. App. 325.

Without considering the propriety of the judgment which was rendered against the defendants Mackenzie and Eollins alone, a question which is not presented by this record, it is enough for the decision of this case that the judgment against them, while it stood of record, operated to preclude the appellee from a further maintenance of this suit against the other defendants. Two several judgments in the one action could not be had at the common law, and we find no provision of our statute regulating proceedings for mandamus which in any manner modifies this rule. On the contrary the statute in terms provides that the procedure after pleading shall be as in other cases at common law. Sec. 4, Chap. 87, R. S.

It is urged by counsel for appellee that the judgment of February 17, 1900, against Mackenzie and Eollins, is not a final judgment, but interlocutory only. To this we can not assent. The judgment is that the peremptory writ of mandamus issue against the defendants named, which is precisely the judgment in this proceeding, to which a petitioner is entitled when he prevails in his suit. The record discloses that the writ did afterward issue in conformity with the judgment.

It is difficult to perceive in what respect this judgment lacks the essentials of a final judgment.

We are of opinion that it was error to enter the judgment against appellants. Therefore the judgment is reversed and the cause is remanded.


author: Mr. Justice Adams

text:
    National Commission Co. v. P. E. Lane, use of, etc.
    1. Appeals — Must Conform to the Order Allowing Them. — An appeal must conform to the order allowing it.
    Appeal from the Superior Court of Cook County; the Hon. Axel Chytratjs, Judge, presiding. Heard in this court at the October term, 1900.
    Dismissed.
    Opinion filed October 10, 1901.
    Colin C. H. Fyffe, attorney for appellant.
    King & O’Connor, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Hamilton and Young, judgment creditors of P. E. Lane to the amount of $1,470 and costs, sued out, in Lane’s name, a summons in garnishment on the judgment against appellant, the National Commission Company, as garnishee. Interrogatories -were filed and appellant stated in answer to the first interrogatory, that at the time of service on it of the writ, and also at the time of filing its answer, October 4, 1899, it was indebted to P. E. Lane or to William H. Sheibner in the sum of $851.33; that the account stood in the name of said P. E. Lane, but was claimed, and for some time past had been claimed, by both Lane and Sheibner, to be due to Sheibner.

October 11, 1899, Lane and Sheibner-filed in the cause the following;

"State oe Illinois, 1 County of Cook, ss.

In the Superior Court of Cook County.

October term, A. D. 1899.

P. E. Lane, for the use of Tunis Young and Isaac Miller Hamilton, Gen. No. 201,349. vs. Term No. 7855. National Commission Company, Garnishee.

We, P. E. Lane and W. H. Sheibner, do hereby severally enter our appearance in the above entitled cause for all purposes, waiving the issuing and service of process upon us, and consent that all proceedings may be had against each of us the same as if we had been duly and regularly served with the proper service of said court more than ten days prior to the first day of the said term of the said court; we do hereby severally stipulate that we are the identical persons mentioned in the answer of the said Hational Commission Company; and we do each of us hereby waive any and all claim to the sum of $851.33 mentioned in the said answer of the said Hational Commission Company, and do each hereby consent to the entering of judgment in this cause against said Hational Commission Company for the said amount of $851.33 in favor of the said Tunis Young and Isaac Miller Hamilton.

P. E. Lane,

William H. Sheibner.

In the presence of Hoyt King, Geo. E. Weese.”

Attached to the foregoing document was a notary’s certificate of acknowledgment in the usual form.

At the same date, October 11, 1899, the court, on motion of the plaintiff’s attorney, entered final judgment in favor of Lane, for the use of Hamilton and Young against the garnishee, the Hational Commission Company, for the sum of $851.33. Hovember 4, 1899, at the October term of the court, appellant moved to set aside the judgment, which motion was continued from time to time, and was finally heard and overruled April 7, 1900. Certain affidavits, which were sworn to February 9, 1900, were filed in support of the motion. Hext following the order overruling the motion is the following:

To which the defendant excepts. Whereupon the defendant, having entered its exceptions herein, prays an appeal from the judgment of this court to the Appellate Court in and for the first district of Illinois, which is allowed upon filing its appeal bond herein, in the sum of six hundred dollars, to be approved by the court,” etc.

Ho appeal was prayed during the October term from the judgment rendered October 11, 1899, at that term. The appeal bond filed recites that the appeal is from the judgment rendered October 11, 1899, of the October term, 1899, for the sum of $851.33. The appeal prayed and obtained was either from the judgment of October 11,1899, as appellant, by its appeal bond, has assumed, or from the order of April 7, 1900, at the April term, 1900, of the court, and appellant is in this dilemma: If the appeal prayed and allowed was from the judgment of October 11, 1899, the allowance of the appeal was invalid and the appeal must be dismissed, because no appeal was prayed or allowed at the October term, or until April 7th, a day of the April term, which was the sixth term after that at which the judgment was rendered, and by section 67 of the practice act, appeals are allowed only on condition that “ such appeals shall be prayed for and allowed at the term at which the judgment, order or decree was rendered.” If the appeal prayed for and allowed was from the judgment of April 7, 1900, overruling appellant’s motion to vacate the judgment of October 11, 1899, which we think it was, the presumption being in favor of the validity of the court’s action in the premises, and such appeal being the only one in the case which the court had jurisdiction, at the April term, to allow, then the appeal must be dismissed, because the appeal actually taken, as appears from the appeal bond, is from the judgment of October 11, 1899.

An appeal must conform to the order allowing it. Town v. Howieson, 175 Ill. 85, 86.

The appeal will be dismissed.


author: Mr. Justice Sears Mr. Presiding Justice Windes,

text:
    Carter H. Harrison, Mayor, etc., v. The People, etc., ex rel., etc.
    1. Municipal Corporations — Annexation of Villages to Cities — Effect on Existing Ordinances of the Village — Chicago and Hyde Park.— By the annexation proceedings the ordinances of the village of Hyde Park, in relation to dram-shop licenses, became in force and operative as ordinances of the city of Chicago, applying to the territory of the village annexed.
    2. Annexation of Villages — Discretion Reposed in the Village Board Transferred to the Mayor and City Council. — T'he discretion reposed in the village board of the village of Hyde Park, by operation of the annexation proceedings, was transferred to and vested in the mayor and council of the city of Chicago.
    3. Same — Exercise of the Discretion, eta. — The discretion reposed in the village board of the village of Hyde Park, and by the operation of its annexation conferred upon the mayor and council of the city of Chicago, is a discretion which can not be exercised capriciously or in discrimination of similarly qualified persons, but is to be exercised only by general ordinance applying to all persons having the qualifications imposed by such ordinance.
    4. City of Chicago — Dram-Shop Ordinances. — The city council of the city of Chicago has, by its general ordinance governing the issuance of licenses for dram-shops in the city, done all that it, or the village board of the village of Hyde Park could have done in the way of exercising the discretion imposed upon it, in regard to issuing licenses for dram-shops, and has provided for the issuing of as many such licenses as may be legally applied for within the territory of the late village.
    5. Ordinances — Construction of, by Municipal Officers. — The construction put upon an ordinance for a long period in the past by a city, will preclude its officers from insisting upon a different construction at the present time.
    6. Statutes — Construction by Government Departments. — Where the execution of a statute has been confided to a particular department of the government, courts will regard, and in doubtful cases, adopt the construction accepted and acted upon by such department.
    7. Mandamus — To Compel the Mayor of Chicago to Issue Dram-Shop licenses for the Territory of the Late Village of Hyde Park. — Where an applicant for a license to keep a dram-shop in what was the territory of the village of Hyde Park, prior to its annexation to the city of Chicago, presents his petition, showing a compliance with the requirements of the ordinances of the late village of Hyde Park in force at the time of its annexation, and such other requirements as are imposed by the city council upon all applicants fot such licenses throughout the city, no further action by the city council will be necessary to entitle such applicant to the license, and he may enforce the issuance of it by mandamus.
    Mandamus, to compel the issuing of a dram-shop license. Appeal from the Superior Court of CookCounty; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Mr. Presiding Justice Windes, dissenting.
    Opinion filed October 10, 1901.
    Charles M. Walker, Corpbration Counsel, and Colin C. H. Fyefe, Assistant Corporation Counsel, attorneys for appellant, George Hunt and Felsenthal & Foreman of counsel,
    contended that the rule is inflexible that mandamus will not lie where the right sought to be enforced is doubtful. The relator must show a clear and indubitable right to the writ, or it will not be granted; and the act sought to be enforced must not only be lawful and proper in itself, but it must'also be one that the defendant may lawfully do. The People v. Vil. of Crotty, 93 Ill. 180; Springfield & Ill. St. Ry. Co. v. County Clerk, 74 Ill. 27; Swift v. Klein, 163 Ill. 276.
    To entitle the relator to relief, it must appear that the defendant is under a legal obligation ■ to perform the act sought to be commanded, and every material fact necessary to show such legal duty must be averred in-the petition. People v. Madison County, 125 Ill. 334; Swift v. Klein, 163 Ill. 276.
    The mere grant of power by the legislature to a municipal corporation to license, regulate and prohibit ;the sale of intoxicating liquors will not, of itself, authorize its authorities to issue a license. This power is dormant and affords no authority to issue licenses until brought into life and put into operation by appropriate legislation by the municipal authorities.
    Municipal authorities in cities and villages organized under the general law of this State may, by ordinance, limit the number of dram-shop keepers to be licensed therein. Zanone v. Mound City, 103 Ill. 552; People v. Cregier, 138 Ill. 421; People v. Harrison, 185 Ill. 315; Revised Stat., Chap. 24, Sub. 46, Sec. 1, Art. 5 (Cities and Villages). Revised Stat., Chap. 43, Sec. 3 (Dram-shops).

      Winston & Meagher, attorneys for appellee; Frederick E. Babcock and Silas H. Straws, of counsel.
    Having in every respect complied not only with the ordinances of the city of Chicago, but also with those of the former village of' Hyde Park, appellee is clearly entitled to a license, and a peremptory writ of mandamus should go. Zanone v. Mound City, 103 Ill. 552; Kadgihn v. Bloomington, 58 Ill. 229; People v. Cregier, 138 Ill. 419.
    The general ordinances of the city of Chicago respecting dram-shops apply to all territory within the limits of said city, and upon the annexation of Hyde Park became applicable thereto, except in so • far as they may be modified by the valid ordinances of the village of Hyde Park then existing. People v. Cregier, 138 Ill. 421; McGurn v. Board of Education, 133 Ill. 122; P., F. W. & C. Ry. Co. v. Chicago, 159 Ill. 369; C., R. I & P., Ry. v. Chicago, 143 Ill. 641; Snell v. Chicago, 133 Ill. 413.
    Hnder a general ordinance of the city for licensing dram-shops, the city authorities can not exercise an arbitrary discretion by granting a license to a favored few and refusing a license to others who have in all respects complied with the laws and ordinances of the State and city. Zanone v. Mound City, 103 Ill. 552; E. St. Louis v. Wehrung, 50 Ill. 28; Chicago v. Rumpff, 45 Ill. 90; E. St. Louis v. Wider, 46 Ill.351; People v. Creiger, 138 Ill. 401; Swift v. People, 63 Ill. App. 453; Schlaudecker v. Marshall, 72 Pa. St. 200.
    By the annexation of the village of Hyde Park to the city, the power and authority of the president of the board of Hyde Park became vested in the mayor of Chicago, and the power and authority formerly vested in the town board passed to the council. The city council, and not the mayor, has the discretion to regulate the licensing of saloons. And this discretion can only be exercised through general ordinances. The mayor alone has not nor can he be given any discretionary power to refuse a license to one who has complied with the requirements of the general ordinances. Kinmundy v. Mahon, 72 Ill. 462; E. St. Louis v. Wehrung, 50 Ill. 28; Zanone v. Mound City, 103 Ill. 552; People v. Creiger, 138 Ill. 401 (420); Swift v. Klein, 163 Ill. 269 (275); E. St. Louis v. Wider, 46 Ill. 351; Chicago v. Rumpff, 45 Ill. 90.
    The city having construed the meaning of the word “ block ” for a long period of years, and having granted licenses to dram-shops in the village of' Hyde Park upon that construction, is in equity and law now estopped from.. claiming a different and •strained construction of the meaning of that term. Comstock v. Cover, 35 Ill. 470; Opinions of Corporation Counsel of Chicago, 1872 to 1897, pp. 235-6.
   Mr. Justice Sears

delivered the opinion of the court.

John Boetter, as relator, filed his petition in the Superior Court of Cook County for a writ of mandamus to compel Carter H. Harrison, mayor of the city of Chicago, to issue to the relator a license to keep a dram-shop at numbers 887 to 897 East Fifty-first street, located in that part of the city of Chicago which was formerly the village of Hyde Park.

The respondent, Mayor Harrison, answered the petition, admitting some of the allegations of the petition and denying others.

Upon replication to the answer the cause went to trial and the issues of fact raised were submitted to the court.

There was but little conflict ns to the facts and but little evidence heard by the court, most of the facts alleged in the petition being admitted by the respondent.

The real controversy in the court below was as to the construction of ordinances of the village of Hyde Park, which ordinances are still operative in the territory which formerly constituted the village of Hyde Park and now constitutes a part of the city of Chicago. The premises numbered 887 to 897 East Fifty-first street, are within an unsubdivided block of land, which block is in part bounded by Fifty-first'street on the south and Grand Boulevard on the east. The application for a license, the plat of the premises offered in evidence, and the stipulations of the parties disclose that the license applied for is to keep a dram-shop, known as Germania Garden, with its main entrance upon Fiftv-tirst street and its eastern boundary or limit a fence located about twenty-six feet west of the west line of Grand Boulevard. In other words, the Germania Garden, which is sought to be licensed as a dram-shop, fronts on Fifty-first street with its main entrance, and does not abut upon any other street, its nearest approach to any other street being to within about twenty-six feet of Grand Boulevard.

The village of Hyde Park was annexed to and became a part of the city of Chicago upon June 29, 1889, and by the annexation proceeding certain ordinances of the village of Hvde Park in force at the time of the annexation became in force and operative as governing, in the same territory, as a part of the city of Chicago, to the same extent as if they were ordinances of the city.

These ordinances, so far as here involved, are as follows :

“ Chapter XV. Section 6. The president and board of trustees by resolution mav grant licenses to keep so many dram-shops, saloons or beer wagons in the village of Hyde Park, outside of the prohibited districts, as they think the public good requires.

Section 7. The president of the board of trustees is authorized to issue licenses according to the resolution provided in section 6, and such license shall be signed by him and attested by the hand of the village cleric, and to be under the corporate seal of the village.”

“ 2085. Section 1. Any person who shall desire to obtain a license to keep a saloon or dram-shop shall, in addition to the requirements now provided by ordinance, present his application in writing to the village comptroller for such license, in which shall be stated the name of the person or firm to whom the license is to be issued and the place where such, saloon or dram-shop is to be kept, which application shall be signed by a majority of the property owners according to the frontage on both sides of the street in the block upon which such dram-shop is to be kept, and shall also be signed by a majority of the bona fide householders and persons; or firms living or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance.”

Ho resolution as provided for by section 6 of chapter 15, was ever adopted by the president and board of trustees of the village of Hyde Park, and no other provision has ever been made by the city council of the city of Chicago for the regulating of the number of licenses to be issued in the territory in question, except as the general ordinance of the city of Chicago for the issuing of licenses for dram-shops may apply.

It is conceded that relator has procured the signatures of the requisite number of property owners on Fifty-first street, and. of householders and persons and firms living and doing business on Fifty-first street, where the main entrance of the dram-shop is to be, in accordance with the requirements of the ordinance. But no signatures of property owners on Grand Boulevard have been obtained.

The defense interposed by the mayor raises but two questions, viz : First, could the mayor issue any license within-this territory in lack of any resolution of the village board of Hyde Park or the city council of the city of Chicago, specifically fixing the number of licenses to be issued with in that territory ? Or, in other words, did the general ordinance of the city of Chicago authorizing the issuing of licenses to dram-shops throughout the city of Chicago apply' within this territory to authorize the issuing of licenses whenever the special provisions, such as consent of property owners, householders, etc., were complied with ? And, second, was it necessary that relator should obtain signatures of property owners upon Grand Boulevard as well as upon Fifty-first street ?

The trial court resolved both of these questions in favor of the relator and issued the writ of mandamus compelling the mayor to issue the license.

We are of opinion that the trial court was right in its determination of each of the questions presented upon this appeal. By the annexation proceedings the ordinances of the village of Hyde Park here in question became in force and operative as ordinances of the city of Chicago applying to the territory in question. People v. Cregier, 138 Ill. 401; Swift v. Klein, 163 Ill. 269; People v. Harrison, 185 Ill. 307.

It is doubtless true that the discretion reposed in the village board of the village of Hyde Park, and now, by operation. of the annexation proceedings, conferred upon the council and mayor of the city of Chicago, as to the number of licenses to be issued in the territory in question, is a discretion which can not be exercised capriciously and in discrimination 1 between persons similarly qualified, but only by general ordinances applying to all who have the qualifications imposed. City of Chicago v. Rumpff, 45 Ill. 90; E. St. Louis v. Wehrung, 46 Ill. 392; E. St. Louis v. Wehrung, 50 Ill. 28; Zanone v. Mound City, 103 Ill. 552; People v. Cregier, 138 Ill. 401.

In E. St. Louis v. Wehrung, supra, our Supreme Court said:

“ In the proper exercise of this power, the city council should adopt general ordinances, prescribing a general rule by which licenses might be obtained. They might, no doubt, prescribe the character of persons who might or might not obtain.licenses; or they might, in their regular or called meetings, in such manner as they might ordain, grant such licenses. The ordinances should prescribe the amount required to be paid for each license, either by an ordinance relating to the entire city, or grade the rates by divisions or portions of the city, or otherwise. The ordinance should be of that general character that all persons coming within its requirements should be entitled, by complying with its provisions, to receive a license. And the amount to be paid should be determined by ordinance or order of the council, and not left within the discretion of a single officer of the city.”

In Zanone v. Mound City, supra, the court said :

“ We do not decide that the municipal authorities may not limit the number of dram-shop keepers to be licensed, but this must be done, if at all, by ordinance.”

And in People v. Cregier, supra, the same doctrine was again announced, as follows :

“We would not be understood as holding that a board of trustees may, by resolution merely, license one, and refuse to license another having precisely the same qualifications and local surroundings, our view being that an ordinance must, in advance of the issuing of any license, prescribe the terms and conditions upon which licenses shall be granted, so that all in like situation, with like surroundings, and having like qualifications, shall have equal opportunity to avail themselves of its privileges, and that it is not admissible for a city council or board of trustees to retain power, to license one and refuse to license another, through mere caprice or favoritism.”

The contention of the learned counsel for appellant is, that because no resolution was ever adopted by the village board of the village of Hyde Park in exercise of the discretion reposed in it by the ordinance of the village, and fixing the number of licenses to be issued within the territory in question, and no resolution in this behalf has ever been adopted by the city council of the city of Chicago, therefore there is no power or authority vested in the mayor of the city to issue a license to any one within this territory. This contention, we think, can not be sustained. The city council of the city of Chicago has, by its general ordinance governing the issuing of licenses for dram-shops in the city, done all that it or the village board of the village of Hyde Park could have done by way of exercise of this discretion. In effect they have provided for the issuing of as many licenses as may be applied for within this territory, as well as in other portions of the city, subject to a compliance with the requirements of the ordinances which were in force in the village of Hyde Park at the time of the annexation. If, therefore, relator has complied with such provisions and requirements and such other requirements as' are imposed by the city council upon all applicants for licenses throughout the city, no further action by the city council would be necessary before relator would be entitled to his license.

We have, then, only to inquire if relator has complied with these provisions. In this behalf it is only contended by the respondent that there is a failure to comply, in that no signatures have been obtained from property owners upon Grand Boulevard. The ordinance requires that the application for the license shall be signed by a majority of the property owners, according to frontage on both sides of the street in the block upon which such dram-shop is to be kept, as well as by a majority of the Iona fide householders and persons or firm's living or doing business on each side of the street in the block upon which the dram-shop shall have its main entrance.

The dram-shop which relator seeks to keep, has its main entrance upon Fifty-first street. It is conceded by respondent that the requisite signatures upon Fifty-first street, both of property owners and householders, and persons or firms there living or doing business, have been obtained. It is also conceded that in all other respects the relator has complied with the provisions of the ordinances upon his part, except that he has not obtained signatures to the application by a majority of the property owners upon each side of Grand Boulevard. It is not contended that the word “ block,” as used in the ordinance, comprises the entire square, bounded by four streets, but it is conceded to mean only a street from one cross street to another. FTor do we think, if the contrary were not conceded, that the term “street in the block,” as used in this ordinance, means instead of “ street,” four streets bounding a square. And if there were any room for doubt upon this matter, the construction put upon it during a long period by the city, in treating it as meaning a “ street ” and not four streets, would, we think, now preclude the mayor from insisting upon a different construction. The evidence establishes without conflict that the city has always construed this provision of the ordinance as designating by the term “ street in the block,” a street between cross streets and not the four streets bounding a square.

In Comstock v. Cover, 35 Ill. 475, where a question arose as to the construction of a provision by the revenue statute, the court held that the construction put upon a doubtful provision by the public officers required to act under it, operated to reduce the uncertainty to a fixed rule. And in People v. The Fidelity and Casualty Co., 153 Ill. 25, the court announced the same doctrine in the following language :

“ Where the execution of statutes is confided to a particular department of the government, the court will regard, and in doubtful cases adopt, the construction acted on by the department.”

But we are of opinion that the language of the ordinance can scarcely be said to leave room for doubt but that the construction put upon it by the city and now conceded by the appellant, the mayor, to be correct, is the right construction. The mayor professes to have no doubts upon this ground, and, as we think, rightly; and therefore a doubt in this behalf as to relator’s right can not be said to exist as reason for its refusal.

Therefore, the controversy in this behalf presents but one question, viz.: Is this dram-shop to be kept upon Grand Boulevard ? The ordinance specifies the property owners upon the street upon which “ such dram-shop is to be kept ” as the ones, a majority of whom, according to frontage, must sign the application for a license. If this dram-shop is to be kept” according to the application and under the license applied for, upon Grand Boulevard as Avell as upon Fifty-first street, then if a license could issue at all, the signatures of a certain proportion of the owners on Grand Boulevard were essential. But we are of opinion that it can not be held that this dram-shop is to be licensed to be kept upon Grand Boulevard. The premises described in the application, shown by the plat and by the evidence to be the premises upon which the dram-shop is to be located, do not at all abut upon Grand Boulevard. Twenty-six feet, the width of an ordinary city lot, intervene between these premises and Grand Boulevard. ' A brick building, shown by the plat in evidence as occupying about twenty-five feet, is upon the corner of Fifty-first street and between the Germania Garden, i. e., the dram-shop here in question, and Grand Boulevard. Upon the trial, counsel for the respondent conceded that there was then a fence separating the Germania Garden from Grand Boulevard, which fence was some twenty-five or twenty-six feet distant from Grand Boulevard, and that “ the space between that fence and the street had not been used as a dram-shop or a saloon, and that the present application does not ask for the use of that portion of ground as a dram-shop or a saloon.” It being thus conceded that the license applied for is to keep a dram-shop upon premises which do not front or in any way abut upon Grand Boulevard, it can scarcely be held that the dram-shop is “to be kept” on Grand Boulevard. Therefore the signatures of property owners upon Grand Boulevard were not essential.

The" license which the mayor, under the coercion of the writ, would issue to the relator, would be no broader than the application warrants, and if the relator should attempt under such license to keep a dram-shop upon Grand Boulevard, the city has swift means of redress.

There appears in the record an ordinance of the city of Chicago by which it is provided in effect that no license shall be issued to any one to keep a dram-shop upon a boulevard or pleasure driveway. But inasmuch as we are obliged to hold'that under the evidence and the concessions of counsel, the dram-shop here in question is not to be kept upon Grand Boulevard, this ordinance, like the one requiring signatures of property owners, becomes of no importance as applying to Grand Boulevard.

There being no other ground of refusal to issue the license sought by the relator, and it being conceded that in all other respects he is entitled to one, the judgment of the Superior Court ordering the writ will be affirmed.

Mr. Presiding Justice Windes,

dissenting.

I am unable to yield my assent to the ultimate conclusion reached in this case.

In view of the position assumed by the learned counsel for appellant, that the ordinance of the village of Hyde Park, referred to in the majority opinion, requires only the consent of a “ majority of the property owners on both sides of every street upon which the premises on which the dram-shop is situated abut, and that this consent is necessary along the entire length of the block bounded by such streets,” that is, the consent of a majority of the property owners on Grand Boulevard between Fiftieth and Fifty-first streets, as well as on Fifty-first street, the conclusion reached by the majority is probably a correct one. I am, however, of opinion that this court is not bound by the construction placed upon the ordinance by the learned counsel of the mayor, or even by the mayor himself. The real question presented is whether the mayor was justified in refusing a saloon license to the relator. In fact, the first point in appellant’s brief is, “ The rule is inflexible that mandamus will not lie where the right sought to be enforced is doubtful. The relator must show a clear and an indubitable right to the writ.”

In People v. Village of Crotty, 93 Ill. 180-90, in which a petition for a mandamus was filed to compel the appellee to issue saloon licenses to relator which had been refused, the court, in holding that mandamus should have been denied, among other things say:

“It is no answer to what we have here said, that appellee issued licenses to others under the same circumstances that it refused them to appellant, nor is it material that it may have placed its refusal to issue them to appellant upon an improper ground. * * * And if appellee had no right to issue them, it was wholly immaterial upon what ground it placed its refusal.”

As early as the case of People v. Forquer, Beecher’s Breese, 104-9, it was held that the writ of mandamus would not be granted where the right of the relator thereto was doubtful. This case was re-affirmed in People v. Hatch, 33 Ill. 9, in a carefully considered and exhaustive opinion, in which it was said:

“The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done. It is well settled, that, in a doubtful case, this writ should not be awarded. ’ It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act.”

The authority of this case is re-affirmed in numerous casesunder varied facts'and circumstances by, among others, the following: People v. Salomon, 46 Ill. 415-9; People v. R. R. Co., 55 Ill. 95-110; Commissioners v. People, 66 Ill. 339; Ry. Co. v. County Clerk, 74 Ill. 27-31; People v. Lieb, 85 Ill. 484-90; People v. Town of Oldtown, 88 Ill. 202; People v. Village of Crotty, 93 Ill. 180-7; People v. Johnson, 100 Ill. 537-43; Board of Supervisors v. People, 110 Ill. 577; R. R. Co. v. Suffern, 129 Ill. 275-81; Ill. Watch C. Co. v. Pearson, 140 Ill. 423-34; People v. McConnell, 146 Ill. 532-7; Swift v. Klein, 163 Ill. 269-76.

In some of the cases cited the court considered questions of fact appearing either by the pleadings or the proofs, and held, under such facts, whether the case presented by the relator was doubtful or not, or whether, under the facts as determined, he bad a clear legal right to the writ. In others of the cases the court considered and construed laws and ordinances as to the particular case before it, and decided whether or not the case Avas doubtful or the legal rio-ht to the Avrit clear, and awarded or denied the writ. according as it determined, under the laws or ordinances, the case was doubtful or the right clear.

In the Johnson case, supra, which was mandamus to compel a county treasurer to pay a certain county order held by the relator, the court say, among other things:

“When, by reason of a complication of extraneous circumstances not specifically provided for by the statute, a well founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy. The right in such case being doubtful, the claimant must resort to some other appropriate remedy to determine it.”

In the Pearson case, supra, which was to compel the secretary of state to file a certificate of the vote of stockholders of a corporation in favor of a change of its name,, the court, after a careful consideration, both of the statutes- and facts bearing upon the question presented in, denying the writ, among other things said:

“ The writ is never granted in doubtful cases, nor unless the party asking it has a clear right. Such doubt exists in the case at bar, and the petitioner has not a clear right to the relief asked.”

In the Swift case, supra, in which the very ordinances here in question were construed by the court, though not on the point here raised, the court, among other things, said, in speaking of the right to the Avrit, it “ should never be awarded unless the party applying for it shoAvs a clear righ't to have the thing sought by it done, and by the person or body sought to be coerced. In doubtful cases it should not be granted;” and denied the Avrit, dismissing the petition because it failed to aver and the proof failed to •shoAV a clear compliance Avith the ordinances.

The folloAving cases recognize the general rule so well settled in this State, and in their facts and the questions presented tend to illustrate the manner in which the courts have applied it, viz: Regina v. Ray, 44 Up. Can. O. B. 17; Tyler v. Taylor, 29 Grat. 765; Ex parte Lynch, 16 S. Car. 32-9; State ex rel. Miers v. Appleby, 25 S. Car. 100; Port Royal Co. v. Hagood, 30 S. Car. 519-23; Draper v. Noteware, 7 Calif. 276; Hall v. Stewart, 23 Kas. 396; Townes v. Nichols, 73 Me. 515; Cook v. Treasurer, 50 Ver. 231; Larkin v. Harris, 36 Ia. 93-7; and State v. Auditor, 43 Ohio St. 311-20.

In the case of Regina v. Ray, supra, Avhere a mandamus Avas asked to compel the mayor of the town of "Whitby to issue a distress Avarrant on a conviction made by him, the Avrit Avas denied because the by-law and the conviction thereunder were subject to several grave objections, thereby rendering the right to the Avrit a doubtful one.

In the Draper case, supra, the Supreme Court of California, on a construction of a statute of that State, denied the writ of mandamus to compel a county auditor to draAv his Avarrant on the county treasurer in favor of the plaintiff for certain amounts, because under the statute of the state the right was not clear, the particular case presented not being within the terms of the statute, which required the county auditor to issue orders on the treasurer of the county.

In the Hagood case, supra, which was an application for mandamus against Hagood and others, members of the state board of agriculture, to compel the respondents to issue a license to relator to mine phosphate rock in the lands of the state, it was claimed, among other things, that a statute of the State which vested the board with discretion to grant or refuse such license, was void under the constitution of the State. The court held it was not the province of the board of agriculture to determine the constitutionality of laws defining their own powers, and the courts would not, in such a proceeding, determine the constitutionality of statutes affecting the rights of third persons, and denied the writ for the reason, among others, that it was not the board’s plain duty to issue the license when that was only made to appear by declaring an act of the legislature unconstitutional.

In the Hall case, supra, the Supreme Court of Kansas held that a mandamus should be denied which sought to compel the defendant, as clerk of the District Court of Greenwood County, to issue an execution on a certain judgment, which the court held was fairly open to at least two different constructions. The court say:

“ As the judgment is ambiguous, and as it is fairly open to the construction given to it by the clerk and the court below, the plaintiff is surely not entitled to a writ of mandamus to compel the clerk to issue an execution upon it.”

According to the construction given the judgment by the clerk, the plaintiff was not entitled to an execution, though under the construction claimed by the plaintiff the execution should have been issued.

In the Townes case, supra, which was an application to compel the directors of a mining company to require its officers to issue to petitioner a certificate of shares of stock of the company, the petition was denied because the court could not determine whether the petitioner’s claim was a just and legal one or not, and, among other things, say:

“ Mandamus is the right arm of the law. Its principal office is, not to inquire and investigate, but to command and execute. It is properly called into requisition in cases Avhere questions of law or equity can not properly and reasonably arise. Its very nature implies that the law, although plain and clear, fails to be enforced and needs its assistance.”

In the Larkin case, supra, the court considered the statutes as well as the facts in issue, and.held that the case wras not a doubtful one, and affirmed the judgment of the court below, denying the writ. The court, in speaking of the rule that mandamus will not lie where the case presented is doubtful, say:

“ The term doubtful right means some other doubt than that arising upon a mere construction of a judicial order, or a legal doubt as to the effect or meaning of a record.”

In the case of State v. Auditor, supra, which was mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for a sum named, to pay for a site purchased by the county commissioners of him for a children’s home, the court considered the statutes and the proof in the case,,and held that under the law as applied to the facts in evidence, the legal right to the writ was clear and the case was not a doubtful one, though the court say, speaking of certain orders of the county commissioners bearing upon the case :

It is not enough that the auditor may honestly entertain doubts concerning the propriety of the original order or the effect of the order of rescission. The right to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty, and not upon his doubts. If his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be.”

The last two cases are the- only ones I have been able to find, in the time at my disposal, which in anyway indicate that the court will award a mandamus to compel the performance of an official act, when the legal right of the party seeking to enforce it does not clearly appear, or when the case presented is a doubtful one.

It will be noted, however, that in the last case the court held that the legal right was clear and the case not doubtful. The case does not conflict with the others noted.

I therefore think that the great weight of authority is that relief by mandamus should not be awarded in a case such as the one at bar, where I believe that the legal right of the party seeking it is not clear and his case upon the proof, as applied to the law, is a doubtful one. It is not enough that the officer should doubt his duty under the law or the facts presented. The court must construe the law and pass upon the facts and determine for itself whether the legal right is clear or the case a doubtful one.

I think relator was' clearly within all the provisions of the law entitling him to a license, except as to the matter of frontage consents. What were his rights in that regard?

Section 1 of the ordinance in question provides that his application “shall be signed by a majority of the property owners, according to frontage, on both sides of the street in the block upon which such dram-shop is to be kept, and shall also be signed by a majority of the bona fide householders and persons of firms living in or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance.”

The ordinance plainly provides for two different and distinct classes of signers of the application: first, property owners on both sides of the street in the block upon which the dram-shop is to be kept, and, second, householders and: persons or firms living in of doing business on each side of the street in the block upon which such dram-shop shall have its main entrance. The latter class of signers, it is conceded, were presented to the mayor with the application, and that provision of the ordinance is clear and certain in its terms, being made so because the street is fixed as being the one upon which the dram-shop shall have its main entrance. The difficulty arises as to the other class of signers.

In Webster, as well as the Century dictionary, a block is defined as “ a square or portion of a city enclosed by streets, whether occupied by buildings or composed of vacant lots.” This definition is approved by the Supreme Court in Todd v. R. R. Co., 78 Ill. 530, and also by the Supreme Court of Kansas in the case of Ottawa v. Barney, 10 Kas. 270, but the cases are different from the one at bar.

In the Standard dictionary “block” is defined as “The distance along a street from one cross-street to another.”

It is true beyond doubt that these different meanings are commonly accepted, but the question is, what was the meaning as used in the ordinance. To say the least, it seems doubtful and uncertain what was there intended by the use of the word block. If the ordinance had said “ both sides of the street fronting that part of the block on which the saloon fronts,” there could be no doubt of the meaning as applied to this case, and the relator would have been clearly within the law as to frontage consents when he presented an application signed by a majority of the property owners on that street, to wit, Fifty-first street. If the word block was intended to mean, as is claimed by relator, the distance between two streets, still the meaning of the ordinance is uncertain and doubtful. It says, “ in the street in the block upop which such dram-shop is to be kept.” The block does not necessarily mean the distance on Fifty-first street between Grand Boulevard and Calumet Avenue; it may mean any other of the three sides of the block, as no particular side is clearly specified. Moreover, it is not clear what street is meant. The phrase, “ the street in the block,” is inaccurate, though it evidently means the street along a side of the block, or the street on which the block abuts. That street may as well be said to be on any other side of the block as on Fifty-first street. But it may be said that phrase is limited by the words, “ upon which such dram-shop is to be kept.” It may be replied, and not without much force, these words are intended to limit the block and not the street. If so, then “the street in the block” might well mean a street on either side of the block. If Webster's definition is the one intended, then in view of the uncertainty of the meaning of the phrase, “ the street in the block,” it might well be contended that the ordinance could not be certainly complied with without procuring the consent of a majority on both sides of each street on each side of the block. To this it may be claimed such a meaning is absurd; this ordinance has never been so construed, but has in the past been construed as the relator contends is the proper construction. The answer to which is, if such a construction is absurd, then the authors of the Century and Mr. Webster are ignorant of the meaning of a common English word. That the ordinance has been differently construed in the past and the construction claimed by relator has been given it, is immaterial, as held in the Grotty case, supra. The question is, was the mayor right in refusing relator a license, irrespective of the reasons he then had, or his counsel now urge, for such refusal ? Had the relator a clear legal right, with frontage consents on Fifty-first street only, or was his cause doubtful because he did not present frontage consents on all the streets around the block ? In view of the ambiguity of the ordinance, I am of opinion the mayor was right and that the case made by relator is doubtful; thát he has failed to show a clear legal right to a mandamus.


text:
    Edward J. Farnum v. North Chicago Safety Deposit Vault Co., use of, etc.
    1. Garnishment — Strict Compliance with the Statute Required. — A proceeding in garnishment is statutory and can not be extended beyond the plain provisions of the statute authorizing it.
    2. Same — Return of the Officer Must. Comply with the Statute.— Under the statute it is necessary, before the process of garnishment can be legally issued, that there should be a return of the execution issued on the judgment “ no property found.”
    3. Same — What is Not a Sufficient Return of Execution. — A return of an execution “ no part satisfied" is not such a return as the statute requires and is not sufficient to authorize a judgment against a defendant in garnishment proceedings.

      Garnishment. — Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded.
    Opinion filed October 10, 1901.
    Stirlen & Dickson, attorneys for appellant.
    Charles B. Obermeyer, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment rendered against appellant, as garnishee. The affidavit for summons is, in substance, that February 5, 1896, Gust Melin recovered judgment against the North Chicago Safety Deposit Vault Company for the sum of $540 and costs; that execution was duly issued on said judgment and was returned “no property found,” and that the affiant, Gust Melin, has no knowledge of any property of said company subject to execution, but has reason to believe that Edward Farnum and others named in the affidavit are indebted to the company. The proceeding was discontinued as to all garnishees except Farnum, who answered interrogatories propounded to him, denying indebtedness to the company. Issues were made up by traversing his answers; the cause was submitted to the court - for trial, and the court found the issues for the plaintiff and that Farnum was indebted to the company in the sum of $1,000, and rendered judgment for that amount, $664.52 for the use of Melin, and the remainder for the use of the company.

Counsel for appellee, in his argument, sajes;

“ This is a proceeding as in case of garnishment, brought under section 8 of chapter 32 of the laws of Illinois.”

The part of this section relied on is as follows :

“ Whenever any action is brought to recover any indebtedness against the corporation, it shall be competent to proceed against one or more stockholders at the same time, to the extent of the balance unpaid by such stockholders upon the stock owned by them, respectively, and in cases of garnishment.” Hurd’s Stat. 1899, p. 436.

Section 1 of chapter 62 of the Revised Statutes prescribes the proceeding in cases of garnishment on judgments, which, omitting the enacting clause, is as follows:

“ That whenever a judgment shall be rendered by any court of record, or any justice of the peace in this State, and an execution against the defendant in such judgment shall be returned by the proper officer, ‘ No property found,’ on the affidavit of the plaintiff, or other credible person, being filed with the clerk of such court or justice of the peace, that said defendant has no property within the knowledge of such affiant, in his possession,'liable to execution, and that such affiant hath just reason to believe that any other person is indebted to such defendant, or hath any effects or estate of such defendant in his possession, custody or charge, it shall be lawful for such clerk or justice of the peace to issue a summons against the person supposed to be indebted to, or supposed to have any of the effects or estate of the said defendant, commanding him to appear before said court or justice, as a garnishee; and said court or justice of the peace shall examine and proceed against such garnishee or garnishees in the same manner as is required by law against garnishees in original attachments.” Ibid., p. 931.

“ The proceeding is statutory and can not be extended beyond the plain provisions of the statute.” Ill. C. R. R. Co. v. Weaver, 54 Ill. 319; Webster v. Steele, 75 Ib. 544, 546; Bartell v. Bauman, 12 Ill. App. 450; Netter v. Board of Trade, etc., Ib. 607; Drake on Attachments, 5th ed., 451a.

By the statute quoted supm, it is clearly necessary that before process of garüishment on a judgment can legally issue there shall be a return of the execution issued on the judgment “ no property found.” In the present case the return on the execution, as shown by the record, is, “No part satisfied. May 26th, 1896.” This return may be, and doubtless is true, and yet the defendant in the execution may have had property more than sufficient to satisfy it. Clearly, it is not such a return as the statute prescribes, and is insufficient to warrant a judgment against appellant.

The Supreme Court has recognized that in garnishment against stockholders on a judgment against a corporation, the execution against the corporation must be returned “ no property found.” Coalfield Co. v. Peck, 98 Ill. 139, 142.

The claim of Melin, the usee, is that the appellant was indebted to appellee for stock subscribed for by him, and the arguments of counsel are largely devoted to a discussion of that question. In view of our conclusion, above stated, we refrain from passing on that question. For the reason that the return of the execution issued on the judgment against appellee was insufficient to warrant the judgment, the judgment will be reversed and the cause remanded.