text:
    The Rose Hill and Evanston Road Company v. The People ex rel. W. N. Lawless.

      Filed at Ottawa November 14, 1885.

    1. Corporation—evidence showing incorporation. Where the certificate of intention to incorporate a company to construct and keep in repair a plank or gravel road, made in 1859 or 1860, has been destroyed, as well as the record thereof, and parol evidence is resorted to to prove its contents, it is not necessary that the testimony shall be so full as to the substantial statements of such certificate as that it might thereby be reproduced, but it will be sufficient if it shows the certificate contained the statements required by the statute.
    2. Where a company took steps to effect an incorporation, under the act of 1859, to construct and keep in repair a road, with toll-bridges, and that, claiming to be incorporated, it built its road, and has operated the same as a toll-road since about the year 1860, during all which time the use of the road as a toll-road was acquiesced in by the public, some presumption may be drawn from such continued acquiescence in aid of the parol testimony showing the contents of the certificate of incorporation, after its destruction and all copies thereof by fire.
    3. Same—statute of 1859 construed as directory. The provision in section 17 of the act of 1859, relating to corporations, that “any company formed under this act shall file a copy of their by-laws, signed by the president and secretary of such company, and a list of the stockholders therein, and the amount of the stock signed, as aforesaid, in the county clerk’s office,” etc., is but directory, and is not a requisite to incorporation. Upon compliance with section 1 of the act the incorporation became complete.

      Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Wilson & Moore, for the appellant.
    Mr. William Law, Jr., for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On the 16th day of June, 1884, an information in the nature of a quo warranto was filed by the State’s attorney of Cook county, in the Superior Court of that county, against the Bose Hill and Evanston Boad Company, charging that the company, without warrant of law, was usurping the franchise of being the proprietors of a toll-road, for the purpose of operating the same by the collection of tolls thereon. Upon the hearing without a jury, the court rendered a judgment of ouster, from which defendant took this appeal.

The company claims to have become incorporated under the general law of 1859, which provides as follows: “Any number of persons, not less than five, intending to construct, maintain and keep in repair a plank, gravel or macadamized road or pike, by electing not less than three nor more than nine of their number a board of directors, and by filing a certificate of their intention, signed by them, stating therein the names of the board of directors so elected, their term of office, the corporate name and style assumed, the amount of capital stock, the kind of road or pike, and its general route, in the office of the county clerk of the county or counties in which the proposed road or pike may be, may become and be a body politic and corporate for the purpose therein stated, by the corporate name and style assumed, and by such name and style they and their associates and successors shall have succession for a period not exceeding thirty years.” The remainder of the section and act relates only to the powers of such corporation, among which are those of erecting and maintaining toll-gates on the road and collecting tolls. It appears that late in the year 1859, or early in the year 1860, a number of persons, not less than five, resolved to incorporate under this general law; that they elected three directers, chose the name of the Rose Hill and Evanston Road Company, fixed the amount of their capital stock, which was subscribed for and issued, and filed a certificate, under the act, in the office of the county clerk of Cook county. The company took possession of a public highway, then known as the old Green Bay road, running from Diversey street, in the town of Lake View, to a point at Rose Hill, opposite the Rose Hill cemetery. Some three years later the same road was extended to the south limits of the village of Evanston, all in Cook county, in this State. The putting of the road in repair and preparing it for travel was begun a short time before the certificate was filed, as above stated, and completed soon after, and from that time to the present, with only one or two brief intermissions, when the road, during the progress of repairs, was thrown open temporarily, that company has continued to operate the road as a toll-road, collecting tolls for its use, without any objection by the people, so far as the record shows, until the commencement of this proceeding. In October, 1871, the records of the county clerk’s office of Cook county were destroyed by fire. At the same time the company’s books, which contained a transcript of the certificate, and all the proceedings for the incorporation, were also burned. The only question presented for consideration is, whether there was filed in the office of the county clerk of Cook county a certificate signed by the corporators, containing the statements required by the statute.

The witness Sherman, who was at that time the secretary of the company, and who personally filed the certificate with the county clerk, and afterwards transcribed it into the records of the company, testifies definitely that the certificate was signed by the five corporators; that it gave the names of the directors; stated the corporate name of the company, the Rose Hill and Evanston Road Company, the amount of the capital stock, the description and limits of the road. The witness could not give the name of the fifth corporator who signed the certificate, he stating the names of four, and he gave the names of two only of the directors, not recollecting the name of the third, and he .was not able to state what the amount of the capital stock was. It was not necessary the testimony should be so full as to the statements in the certificate, that from it the certificate could be reproduced as it was. It was enough for the evidence to show satisfactorily that the certificate contained the statements required by the statute. We really see no defect in the direct proof as showing this, unless it may be as to the directors’ term of office, and as to the kind, and general route of the road. - As .respects these, the witness says the certificate stated the limit of the directors’ term of office; that his impression is the term was three years; that they drew cuts as regards the first terms, •and that they elected directors every year,—so that it seems the directors’ term of office was fixed; that the certificate did state something in regard thereto, and it may be presumed that the statement was of the term of office, as the statute required. The witness says the certificate stated the object of the corporation substantially for the purpose of establishing a road to be used as a toll-road; that the certificate gave the general location of the road and its limits, from the city limits to Baer’s tavern. The witness does not state definitely that the kind of road was mentioned,—whether plank, gravel or macadamized; but he states that part of the work was done upon the road before the certificate was filed,—that gravel and clay had been drawn on the road for the formation of the bed, and negotiations had for the gravel to gravel the road with. Thus it seems the road was a gravel road in progress of being constructed at the time the certificate was filed, and, presumably, the kind of road was stated in the certificate, as required by the statute. Mr. Page, an attorney, testified that he had examined the copy of the certificate which had been trans-scribed into the company’s books, and states the contents substantially as the other witness. He states also that he-examined the certificate in connection with the statute; that it was in the ordinary form of a certificate of incorporation; that it was regular on its face, and complied with the statute so far as he was able to tell. The fact shown, that the certificate was drawn up by an attorney, who would be likely to make it conform with the statute, and the long time of acquiescence in the use of the road as a toll-road by the company, aid in the presumption which may be made at this distance of time, to supply any deficiency which appears in the proof of the contents of the certificate, and that the company was duly - incorporated.

Under all the evidence, and the presumptions which may properly be made from the circumstances, we are entirely satisfied that the certificate filed in the county clerk’s office sufficiently complied with the statute in its statements, and that the company became incorporated under the general law. The provision of section 17 of the act, that “any company formed under this act shall file a copy of their by-laws, signed by the president and secretary of such company, and a list of all the stockholders therein, and the amount of the stock, signed as aforesaid, in the county clerk’s office of the proper-county, ” etc., is 'but directory to the company, and not a requisite for its incorporation. Upon compliance with section 1, above quoted, the incorporation becomes complete. We think the court below must have erred in exacting too full proof of the contents of the certificate.

The judgment is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    John C. Proctor et al. v. Mary Tows et al.

      Filed at Ottawa November 14, 1885.

    1. Agency—proof of agency—ratification. An agency can not be proven by the mere declarations of a party claiming to be an agent, where the fact of agency is in issue, and they are not made in the hearing of the principal, and the latter never has approved of them.
    2. An implied ratification of the acts and declarations of one assuming to act as the agent of another, must be based upon a full knowledge of all the facts.
    3. Tenancy at stjfeebance—when it exists. Where a person buys a lot of ground, and permits another to occupy the same under no particular agreement as to time, the latter will be a tenant at sufferance, even though he may put improvements upon the premises.
    4. Same—forfeiture. A conveyance of premises by one occupying them as a tenant at sufferance of the owner, will forfeit the tenancy and terminate his interest.'
    5. Mechanic’s eien—in respect to a building erected on land by one other than the owner. If labor and materials are furnished to a party in possession of a lot as a mere tenant at sufferance, with which to enable the occupant to build a house thereon, with knowledge that he is not the owner, and the material and labor and advances are charged-to such occupant alone, the owner of the property not directing or knowing of the improvement until after its completion, the latter will not be liable for the price, nor will his property be subject to any lien therefor.
    6. The fact that a person purchases a lot as the agent of another, does not give him implied power to contract in behalf of the latter for the erection of a building thereon; and if he is furnished with funds as agent, and instructed to build a house with such funds, he will have no implied power to build on credit, and his mere possession of the premises will confer no power on him to bind anybody’s interest but his own.
    Appear from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Peoria County; the Hon. N. M. Laws, Judge, presiding.

      This was a petition by John C. Proctor and Charles W. Tripp, to enforce a lien for materials furnished and labor performed in and about the erection of a dwelling house on a certain lot in the city of Peoria, against Mary Tows and William W. Downing. The defendants are brother and sister. The title to the lot is in Mrs. Tows, but the building was erected at the immediate instance of Downing, and has been occupied by him as a residence since. The claim of the petitioners is, that they furnished the materials and procured the labor to be performed by virtue of a contract with Mrs. Tows, through Downing, as her agent,—or, as an alternative position, that the materials were furnished and labor performed pursuant to a contract with Downing to erect a dwelling house on her lot, and that she, knowing what was being done, silently acquiesced therein. The defendants deny both claims. They contend that Mrs. Tows consented that Downing might build a house upon her lot, and occupy it, indefinitely, free of rent, upon condition of his keeping up repairs and paying taxes, and that she would aid him in building, by advancing means.
    The material facts disclosed by the record are, Downing had two sisters, Mrs. Tows, the defendant, a married woman, residing in New York, and Mrs. Fuller, residing in Cleveland. Downing’s financial condition was apparently not good, and there was a desire by these sisters to aid him in procuring a home for himself and family. Mrs. Fuller was visiting at Downing’s in the summer of 1877, and she then assisted in selecting the lot which was afterwards purchased by Mrs. Tows, and she subsequently made, or aided in making, drawings and plans for the dwelling house. But she advanced no money, and assumed no liability on account of the purchase of the lot or the erection of the building, and beyond, perhaps, a letter to Mrs. Tows, with regard to the lot, and it may be the mailing to her of the drawings and plans, she had no further participation in the transactions. Information was communicated to Mrs. Tows that the lot could be purchased for $700, but it appears that she was unable to raise more than $650. That amount she sent in a check to Downing, and with it he purchased the lot, and took the deed to Mrs. Tows. Afterwards he proceeded to erect thereon the house on account of which this lien is sought to be enforced.
    Tripp testified, as his evidence is abstracted, that Downing, after getting the deed, came down; “said he wanted to make arrangements about building on the lot; said he had the money; said they had written him they had money enough. Downing said he wished to go ahead and build the house, and said there was not money enough, and asked credit. I told him as long as he .was authorized to act as her agent in the matter, I would sell him material to build the house; sell him the material and furnish labor and all to build the-house, at ten per cent interest after the house was completed, at the usual prices for all material and labor at what it cost in cash. I furnished the cash-and paid it. That was the offer I made him. After talking it over he said he would have to wait a week to get another letter. He read the letters or told me what they were. I think he read letters that I had not heard read here. She objected to the amount of interest, and said she did not think she could pay that much money. I never saw Mrs. Tows. I don’t want anybody to understand that I ever saw her or received any letters from her. Mr. Downing, represented himself to be her agent. After Mr. Downing had received several letters he said he had some money. He thought they should go ahead. They went to work and put the sills and lower joist down and lower foundation. The bargain was that he was to have a year’s time, with ten per cent interest. The first bargain was along late in the season,—November or December, 1877,—two or three months after he got the lot. The bargain then was to fill the bill just as I have stated. After that he came down and said he had got another letter, in which she refused to furnish the money to build the balance of the house. He made a good deal of complaint about it, and said she did not do as she had agreed. I told him if that was the case I would not furnish the bill of lumber. ‘Well,’ he says, ‘I have got money enough to pay for this material for the foundation, and keep it in good shape for the winter.’ He went ahead and finished up that and stopped. In the spring, or toward spring, March or April, he came down, and said: ‘I have got a letter now, and we will go ahead. I have permission now to go ahead. It is all right.’ I made the bargain to take the cash, provided they sent it, for the bill, with just simply the profit on the lumber, and if they did not send the money, with ten per cent interest. The building was to be completed about June—may.have been latter part. The extent of the time, unless secured on the property, was one year,—that was what he understood and I understood. Ten per cent was the usual rate of interest at that time. I paid it to parties myself. I furnished the amount stated in the bill,—$1102 and some cents. 1 have not seen the bill since the last trial. The bill is $1101.49. I furnished all that material. We charged him no profit on anything only the lumber, and we only charged him the usual profit on that. These charges are the same as had been agreed upon between us. The lumber, material and labor were all used in building the house on this .lot upon which Mr. Downing, lives. They have never paid us any portion of this indebtedness. There is due us the amount of this bill, with interest on it at ten per cent, from July, 1878. I had a conversation with Mr. Downing about this matter, previous to bringing suit. He told me she had refused to pay it, and to commence on her right away. This was in 1879. Mr. Downing moved into the house when completed, and has lived there ever since.” On cross-examination he testified: “Mr. Downing did not pretend, when we talked at the time of this contract, that he had seen Mrs. Tows, but that he had letters. He said he had letters. I did not ask to see the letters. He told me what the contents were, and I supposed that what he said was in the letters. He did not claim to state any conversation with Mrs. Tows—■ only claimed to state the contents of the letters, in different letters. They are not all here. I have heard things that are not here. I only know what he told me.” He further said: “I do not think he saw Mrs. Tows. She was in New York, and he running a train. He told me at one time that Mrs. Tows refused to pay, and that was the reason I stopped. At one time he said he thought charges had been made 'on the books against Mrs. Tows, and he added that the account was charged to W. W. Downing as agent. He produced the books, and then admitted that there was no charge against Mrs. Tows, and none against W. W. Downing as agent. The entire bill was charged against William W. Downing alone. ” He also said: “I knew the deed was made to Mrs. Tows. * * *' I knew the lot was in her name, for his use. There was nothing in the deed that said for his use, but he told me so. ”■ After testifying as to the sending the lumber up to Downing, he proceeds thus: “He gave directions how to charge it. He told me to charge it to Mr. Downing. Never heard of anybody else in connection with it. All my orders were, that when there was an order given to send the lumber, was directed to take my orders from Mr. Downing. I did so. ”
    Downing testified that he made the contract for the lumber, etc., with Tripp, in his own name; that he did not represent that he was the agent of Mrs. Tows, or contract in her name as such. His language is : “At the time of making the contract there was no time set for payment—he was to give me all the time I wanted. That is all the contract there was— that he -would furnish the lumber, and take me for it. There was no Mrs. Tows mentioned, nor Mrs. somebody else. She was not mentioned, only occasionally. When the $350 came I told him she said she would not send any more. She sent me $350 to assist me to put up the building. I told him of it. There was nothing said about her liability, or what she would do in the matter. I never mentioned Mrs. Tows’ name in buying the lumber, as agent or otherwise. Tripp never told me that he would not furnish further supplies unless Mrs. Tows would be responsible for it. There never was any conversation of the kind, and Tripp knows it. I bought the lumber on my own credit. Tripp agreed to give me all the time I wanted. I was to pay for it as I could get the money. I stated all the circumstances. I did not cover up anything. He said go ahead, and he would see me through. I bought in my own name, and he did not give time to pay anything on it until he sued me. I never said that I was acting as her agent, in any way, shape or form, only in buying the lot.” He says Mrs. Tows sent him the $350 above alluded to, in a letter, late in the fall of 1877, and that he showed Tripp no more letters after that. He was asked this question: “If he sold the lumber to you, and did all this work upon your credit, why did you take any of these letters dovm and read them to him?” To which he responded: “To show him I was trying to get them to help me, and so I could pay him. He was interested in getting his money, as much as I was in paying him. He had nothing to do with Mrs. Tows. I took him the letters to show him I was disappointed in getting the money, and that I was not going back on him. I supposed she would help me out. ”
    Letters written by Mrs. Tows were introduced in evidence, as follows:
    First—To W. W. Downing.
    “New York, September 27.

      “My Dear Brother:—Have just received Jo’s from Peoria, and hasten to say that I have but $500 at my disposal, but if you can get the lot for $700 cash, and can build a house for $1000, giving me plenty of time to pay, I will try and borrow the $200, the sale to be made out in my name. All I ask of you is to keep it in repair, for rent. Write me how you can get the money, and on what terms. I am far from well. ”

      The “Jo” here alluded to is shown to be Mrs. Fuller.
    Second—Dated New York, October 7, 1877, to Mrs. Downing, wife of W. W. Downing.

      “My Dear Sister:—I write you, knowing how little time William has at home, hoping you will care for this just as I desire you to. In the first place, I could get but $650, and $150 of this I had to borrow, so if he will take this I will send it at once. You can telegraph Coe at Rockingham. I could not get any more, yet at the same time I do not want you to lose it. But before paying for it, you must get a reliable man who understands those things, to make a thorough investigation of the title. See that there are no judgments now or have been against him, as they could come against the property at any time if there were. You must have some lawyer do this for you,—some one that you can depend upon to make out an abstract of the property, for I should not like to lose it, -as I am denying myself many comforts and pleasures to accomplish this, as F. knows nothing about it. And now, in regard to the house. One of the size you name can be built here for $900. Either they are charging too much, or material is much more expensive there than here. I would not dare to undertake so much at present, so I think you had better put up a back building,—say a dining room and kitchen for the winter, with two rooms over,—and which will make you comfortable, and stop the rent. In the spring, I hope to get as far as that, if I am strong enough, and then we will see about the front house. This I should say should not exceed $300. At any rate, see what can be done, and when the title is complete, begin at once. Leave space enough in front for house and garden. I do hope you may get this, and get into it before holidays. ”
    “F.” referred to in the letter, is shown to be the husband of Mrs. Tows.
    Third—Letter to Downing, dated November 1, 1877.

      “Dear Brother:—I thought my two last letters were very explicit as to the amount, which was §350. It is all I can do, and to accomplish this I am doing a part of my own washing, often sitting down to-do it. I am not strong enough to stand up. It will take me two years £o pay this, with the strictest economy. I should think, with this amount and what ‘Jo’ has promised, you might put up a very neat little apartment, which could be added to afterwards. If I can borrow the money, I would prefer doing so, as I do not like to have the lot mortgaged; but if I can not, for the three hundred, you will have to. I will send fifty in money, and you can make a contract for that amount. Write ‘Jo,’ and if she will let you have the sum promised, then you will know exactly what to do.”
    Fourth—A letter to Mrs. Downing, wife of W. W. Downing. The year, evidently, is 1878.
    “New York, March 2á.

      “My Dear Sister:—Feeling better this morning, and not having attended church but once since the holidays, had designed going, when it commenced to rain, and I had to give it up, so I thought I would seat myself for a chat with you. The drawing of the house arrived safely, and I should think it was going to be very pretty. How soon will you be able to get into it?”
    Mrs. Tows testified: “I never had any contract or bargain with complainants to furnish any labor or materials, or do any wrork for me. I never authorized W. W. Downing to act as my agent in making any contract or agreement upon any building in Peoria, and I never had any notice that any person claimed to so act for me. William W. Downing is my brother. I purchased a lot in the city of Peoria, and paid for the same with my own means, for the purpose of giving a home to my brother. I sent him the money to put up a small rear building on said lot, to be used as a home for my brother. I never agreed to furnish any more money, and did not know anybody was putting a building on there upon my credit or the credit of my property. I never consented to any building being put upon my lot upon my credit. I knew my brother was erecting a small rear building on the lot, for which I sent him the $350.” On cross-examination: “I bought the lot as a home for my brother and his family. I paid $650 for the lot, and took the title in my own name. No one ever consulted me about the building. I hold the property absolutely in my own right. My brother bought the lot for me. I sent the money for the purchase. I have no letters of said William W. Downing, relating to such purchase or building of said house, to the best of my knowledge. ”
    The court found that the petitioners had no contract with Mary Tows, which in any way obligated her, or her interest ór estate in the land described, to pay them any sum; that William W. Downing, at the time of the contract, or at any time, had no interest in the lot described in the petition which could be subject to sale on any decree in this case, and the court therefore decreed that the bill be dismissed at the costs of the petitioners. That decree was affirmed on appeal to the Appellate Court for the Second District. The present appeal is from that affirmance.
    Messrs. Stare & Stare, for the appellants:
    Where authority is given to an agent in a foreign country or in another State, it must be presumed to include the authority to exercise it in conformity with the laws of the place where executed. Story on Agency, sec. 86.
    If the agency arises from implication by numerous acts done by the agent, with the tacit consent or acquiescence of the principal, it is deemed to be limited to acts of like nature. Story on Agency, sec. 87.
    A party who has so acted with reference to any property or right, as to mislead or cause another party to change his position so that it would be a fraud upon his rights, is estopped from asserting his claim to the injury of such party. Collins v. McGraw, 47 Mo. 495; Tucker v. Gest, 46 id. 339; Weber v. Weatherby, 34 Md. 656; Schwartz v. Saunders, 46 Ill. 18; Greenleaf v. Beebe, 80 id. 520.
    Where one, by words or conduct, willfully causes another to believe the existence of a certain state of things, and induces another to act on'that belief so as to alter his own previous position, the former is concluded from ayerring a different state of things. Bigelow on Estoppel, 475; Chandler v. White, 85 Ill. 435.
    To prove these facts and circumstances necessary to create an estoppel, the court should consider all the facts and circumstances that would bring to the knowledge of the lot owner the fact that a building was being erected upon this lot. Phillips on Mechanic’s Lien, sec. 76.
    The lien -will attach to whatever interest Downing had in the lot. Donaldson v. Holmes, 23 Ill. 85; Turney v. Saunders, 4 Cow. 527.
    Messrs. Wells & Reithley, for the appellees:
    The declarations of an agent, in support of his authority, are not sufficient where agency is an issue to be tried. Streeter y. Poor, 4 Kan. 414; Scott v. Crane, 1 Conn. 255; Sencex-box y. McGx-ade, 6 Minn. 484.
    Before a party can avail himself of the statute authorizing a mechanic’s lien, he must show, by his evidence, that his case comes within its provisions. Sxitherlaud v. Iiyerson, 27 111, 519; Wendt v. Max-tin, 89 id. 139; Canissius v. Merrill, 65 id. 67.
    Very satisfactory proof of authority of the agent to bind the owner, and subject his property to the lien, will be required. Baxter v. Hutchings, 49 Ill. 116.
    A party in possession as tenant, intruder, or otherwise, may bind his own interest, but not that of the owner, unless authority to do so has been conferred. Baxter v. Hutchings, 49 Ill. 116; Garrett v. Stevenson, 3 Gilm. 261; Steigleman v. McBride, 17 Ill. 300.
    Even had the improvements been put upon Mrs. Tows’ lot in her presence and without objection, she would not be liable. Geary v. Hennessy, 9 Bradw. 17; Faunery v. Rohrmayers, 46 Conn. 558; Gilmore v. Disbrow, 45 id. 564.
    Downing had no estate or interest in the lot that he could bind by his contracts. He was simply an occupant or tenant at will. His interest was a right to stay there until the owner should otherwise order,—a personal privilege which he could not sell or assign.
    The statute does not embrace tenants at will. Squires v. Fithian, 27 Mo. 138.
    Such an estate can not be conveyed. A conveyance would necessarily work a forfeiture.. Coke on Littleton, 57a; 1 Washburn on Real Prop. 582; 1 Cruise’s Digest, 244, t. 19, chap. 1, sec. 7; King v. Lawson, 98 Mass. 311; Cooper v. Adams, 6 Cush. 87; Reckhow v. Schauck, 43 N. Y. 488; Cunningham v. Houlton, 55 Me. 36; Palmer v. Bowker, 106 Mass. 317.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The material facts in this case are sufficiently set out in the foregoing statement. It will be observed, by reading it, that there is no proof that Mrs. Tows authorized Downing to contract debts in her name, or in anywise to incumber her property. The only semblance of evidence to that effect will be found in the declarations of Downing, testified to by Tripp, and which Downing denies to have been made. Concedijig they were made, they prove nothing, for Mrs. Tows was not present, and is not shown to have ever approved of them or even to have heard of them. An agency can not be proved by the mere declarations of an agent, when the fact of agency is in issue. (Whiteside v. Margaret, 51 Ill. 507; Ranson, v. Curtiss, 19 id. 456; Maxey et al. v. Heckethorn, 44 id. 437.) The evidence both of Mrs. Tows and Downing, moreover, expressly negatives the fact of agency. There is evidence that Mrs. Tows knew that Downing was building a house upon her land, but not upon her credit. She had given him $350 with which to build the house, and there is no proof that she knew that he was building a house to cost more than that sum, much less that he was contracting debts by such building, in her name, or to be charged against her property. There is not only no actual, but, also, no implied ratification of any act of Downing, in that respect, as the act of her agent, for an implied ratification must be based upon a full knowledge of all the facts. Cadwell v. Meek, 17 Ill. 220; Manufacturers’ National Bank v. Barnes, 65 id. 69; Farwell v. Meyer, 35 id. 40.

If it be conceded that Downing was the agent of Mrs. Tows, to build a house on her property, still it would not follow that his power to bind her was unlimited. An agent furnished with funds and instructed to build a house with those funds, has no implied power to build on credit. The mere possession of this property by Downing conferred no power on him to bind anybody’s interest but his own. Baxter v. Hutchings, 49 Ill. 116; McCarty v. Carter, id. 55.

It can not even be said there is satisfactory evidence that anybody but Downing was intended to be credited in the matter of this building. It is indeed positively affirmed by Tripp that the credit, at Downing’s request, was given to Mrs. Tows, but this is as positively denied by Downing, and the books of the petitioners tend to corroborate Downing. The petitioners are not only charged with knowledge by the record, but they actually knew that this lot belonged to Mrs. Tows. It was, then, incumbent on them, before they advanced money and furnished materials on her credit, to know that the party at whose instance they advanced and furnished them, was lawfully empowered by her to receive them on her credit. Had they observed this precaution, it may be that the house would not have been built,—it is-certain they would not have been losers. As it is, their loss is the result of their own negligence. The lien can not be enforced against the interests of Mrs. Tows. Had Downing any legal title or estate in the property, that title or estate might, undoubtedly, be sold. But he has none. The absolute title in fee is in Mrs. Tows. Downing is a mere tenant at sufferance. She may let him stay there a lifetime, or she may turn him out without delay. He has taken his chances, and built upon the property without any definite contract as to the time he shall be allowed to enjoy possession. The conveyance of the property would forfeit Downing’s tenancy, and terminate his interest. King v. Lawson, 98 Mass. 309; Palmer v. Bowker, 106 id. 317; Cunningham v. Holton, 55 Me. 36; Recklaw v. Schanck, 43 N. Y. 488; Squires v. Fithian, 27 Mo. 138; 1 Washburn on Real Prop. 582.

We see no cause to disturb the judgment of the Appellate Court, and it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The People ex rel. Josiah Little, Collector, v. Owen L. Clayton et al.

      Filed at Ottawa November 14, 1885.

    1. Drainage—special assessments, when due. Under section 27 of the original act relating to drainage, (Rev. Stat. 1874,) upon confirmation of the assessment for benefits by the county court the whole assessment becomes due and payable immediately, unless ordered to be paid in installments.
    2. Same—return of delinquent list—when to be made—effect on validity-of assessment when return not made at proper time. By section 178 of the Revenue act, return of delinquent or unpaid assessments is required to be made to the county collector on or before the tenth day of March next after the same shall have become payable,—not on the tenth day of March next after the day named in the notice required by section 33 of the Drainage act.

      3. In this case the drainage assessment was confirmed by the court and jury on March 9, 1885, and became payable on that day. On the next day the commissioners filed with the county collector the delinquent list, and on March 14, 1885, they published the notice required by section 27 of the Drainage act, requiring payment to them of such assessments on or before June 6, 18S5. On May 18, 1883, the county collector applied for judgment against the lands, and judgment was rendered on June 8, 1885: Held, that while it was irregular to make the return to the county collector before the notice of the assessment and before the day limited for payment in the notice, and ask for and obtain judgment for non-payment on the day before that named in the notice, yet, being an error or irregularity not affecting the substantial justice of the assessment, it was cured by section 191 of the Revenue act.
    4. In such case the substantial matter as affecting the tax-payer was, that he should have three weeks’ notice, by publication, of the assessment, so as to afford him an opportunity to pay the same before the sale of his land. And the mere time of returning the delinquent list to the collector, whether before or after the notice was published, affects only the formality of the proceeding, and not any substantial interest of the land owner.
    Appeal from the County Court of Lee county; the Hon. Bichard S. Farrand, Judge, presiding.
    Mr. F. E. Andrews, for the appellant.
    Messrs. Crabtree & Dixon, for the appllees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an application by "the county collector of Lee county, made in the county court, for judgment against certain lands and lots for the taxes and special assessments due thereon. The appellees appeared and filed various objections to judgment against their lands in drainage district No. 1 of Nelson, in Lee county, for a certain assessment for drainage purposes. The court held the objections sufficient, and refused judgment, whereupon this appeal was taken.

The drainage assessment was confirmed by the court and jury on the 9th day of March, 18S5, and the delinquent list upon which the county collector based his application for judgment, ivas filed with him on the 10th day of March, 1885-. On the 14th day of March, 1885, the drainage commissioner published a notice in a weekly newspaper published in Lee county, notifying all persons interested, of the making of the assessment, and that the same must be paid to the drainage commissioner on or before the 6th day of June, 1885, and that in default, the lands upon which the assessment remained unpaid would be sold to pay the amount of the assessment. The application of the county collector for judgment against the lands was made on May 18, 1885, and the judgment was rendered on June 5, 1885.

The only objection which is insisted upon is, that the giving of the notice by the drainage commissioner, and the expiration of. the time mentioned therein for the payment of the assessment, were both' necessary to fix a delinquency against the lands assessed; and that the drainage commissioner’s return of the lands as delinquent could not, under the law, have been made until after such delinquency had occurred, and so not until or before the 10th day of March next after the time fixed in the notice as the date by which payment must be made. By section 33, as amended, of the Drainage act, (Laws of 1883, page 85,) it is made the duty of the drainage commissioner, immediately after receiving a copy of the assessment roll, to cause a notice to be published, for three weeks, that the assessment was due for drainage purposes, and that the same must be paid on or before a day to be fixed in the notice, and that in default of such payment the lands would be sold. Section 34, as amended, is: “If the assessment * * * due upon said lands shall not be paid on or before the day named in the notice given, as in section 33 of this act, it shall be the duty of said commissioner * * * to make out a certified list of such delinquent lands upon which the * * * assessment remains unpaid, and the same shall be by him or them, on or before the 10th day of March next after the same shall have become payable, returned to the county collector,” etc. The reading of this section 34, taken by itself, might rather seem to imply, as contended, that the assessment was not payable until the expiration of the time fixed in the drainage commissioner’s notice; that the assessment did not, until that time, become delinquent, and that the drainage commissioner was not to return the delinquent list of the lands to the county collector until after such time, and that the return was to be on or before the 10th day of March next after that time, whereoas, here, the drainage commissioner returned the delinquent list to the county collector before the notice was published, and on the 10th day of March, 1885, and the judgment was rendered on the 5th day of June, the day before the day named in the notice, which was June 6.

Section 27 of the original act, (Rev. Stat. 1874, page 433,) provides: “At the time of confirming such assessment, it shall be competent for the court to order the assessment of benefits to be paid in installments, * * * otherwise the whole amount of such assessment shall be payable immediately upon such confirmation, and shall be a lien upon the lands assessed, until paid.” As observed, the confirmation here was on March 9, 1885. Section 178 of the Revenue act, (Rev. Stat. 1874, page 887,) provides: “When any special assessment, made by any * * * corporate authorities, commissioners or persons, pursuant to law, remains unpaid in whole or in part, return thereof shall be made to the county collector, on or before the 10th day of March next after the same shall have become payable, in like forms as returns are made for delinquent land tax.” The drainage commissioner did, in fact, make his return of the delinquent list in compliance with the letter of the statute. By its express language the assessment was payable March 9, 1885, and return was made of the delinquent list on March 10, 1885,—the 10th day of March next after the assessment became payable by said section 27. The requirement of section 34 is not that the return shall be on or before the 10th day of March next after the day named in the notice for payment of the assessment, but next after the assessment shall have become payable. It is only by implication from the notice that the assessment is to be held payable at the time fixed in the notice,—dhe statute, in terms, makes it payable immediately upon its confirmation.

There is surely an inconsistency, which does not accord with the orderly coprse of any ordinary legal proceeding, that the return of the delinquent list should have been made to the county collector before the notice of the assessment and the time by which to pay it was published, and that judgment should have been asked for and taken on the day before that named in the notice for payment of the assessment. But we are disposed to look upon this as but an irregularity in the proceeding for the collection of the assessment, which comes within the 191st section of the Revenue law, (Rev. Stat. 1874, page 890,) which provides: “Ahd no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. ” There was, as we regard, but such an error or informality-in this case. The substantial matter, as affecting the tax-payer, was that he should have three weeks’ notice, by publication, of the assessment, affording him opportunity for its payment. This was had, there having been publication of the' notice more than three weeks previous to making the application for judgment. The assessment was, in fact, due and unpaid. The day fixed in the notice as the time by which the assessment must be paid or the lands would be sold, was one prior to the day on which the sale was to be had. The mere time of returning the delinquent list to the county collector, whether before or after the notice was published, would seem to affect only the formality of the proceeding, and not any substantial interest of the land owner, and the 191st section cures expressly any irregularity on account of the tax list not having been returned within the time required by law. Whatever of irregularity there was here, does not appear to affect the substantial justice of the assessment, and we incline to regard it as cured by this section 191 of the Revenue act.

The judgment of the county court will therefore be reversed, and the cause remanded.

Judgment reversed.


text:
    The Chicago Dock and Canal Company v. P. L. Garrity et al. and George Bullen et al. v. George W. Higgins et al.

      Filed at Ottawa November 14, 1885.

    1. Streets—location of railroad tracks thereon—power of control in that regard—mode of its exercise, limitations, etc.—and herein, as to the city of Chicago. Under the ninth and twenty-fifth clauses of section 1, article 5, of the general Incorporation law, the common council of cities incorporated under that law is vested with the exclusive control and regulation of the streets of their cities, and with the power to direct and control the location of railroad tracks within the limits of their cities; and being inconsistent with the ninth clause of section 1, article 5, of the amended charter of the city of Chicago, adopted in 1867, must prevail over the latter. The provisions of the amended charter of the city of Chicago of 1867 being inconsistent with the general Incorporation law under which that city is now organized, must be regarded as not in force in that city.
    2. But the power of the city council in this respect is subject to the limitation imposed by the ninetieth clause of section 1, article 5, of the act, making a petition of the owners of the land representing more than one-half the frontage of the street, necessary to the grant of the right to lay a railway-track in any street of the city.
    3. Clause ninety, of section 1, article 5, of the general Incorporation law, “that the city, council or board of trustees shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam or horse railroad company', except upon a petition of the owners of the land,” etc., is to be construed as including both corporations and individuals. The word “company',” in the clause, must be held to embrace natural persons as well as corporations.

      4. Under section 13, article 3, of the general Incorporation larv, the yeas and nays are required to be taken upon the passage of all ordinances, etc., and the concurrence of a majority of all the members elected to the city council shall be necessary to the passage of any ordinance or proposition, except that in case of the sale of city or school property a vote of two-thirds of all the members elect is required. Therefore a majority, onlj', of all the members of the city council is required to grant the privilege of laying a railroad track in a street of a city, and this being inconsistent with the provisions of the amended charter of the city of Chicago of 1867, on the same subject, requiring a vote of three-fourths of all the aldermen elect, the latter is repealed.
    5. A city council, under the general Incorporation act, may grant to private individuals or to a private corporation the right to lay railroad tracks in the streets, connecting with public railway tracks previously laid, and extending to the manufacturing establishments or warehouses of those laying the tracks. In such case, the tracks so laid become, in legal contemplation, part of the railway with which they connect, and are open to the public, and subject to public control in all respects as other railway tracks.
    6. The use of the streets of a city, however, whether for vehicles drawn by animals, for riding upon animals, for footmen, or for the passage of railway cars, must be for the public. No corporation or individual can acquire an exclusive right to their use or for merely private purposes.
    7. Railroad connections—o/ rights in respect thereto—and for what purposes. Railroad tracks laid on streets of a city, connected with existing railroads, and extending to public warehouses, malt houses or manufacturing establishments, or to public wharves and landings, are in their nature public and for the public good, and all railroad companies are required by law to permit such connections to be made with their tracks.
    8. Wharves, docks, etc.—whether of public or private character—as to the Chicago Dock and Canal Company. Wharves, docks, piers, quays and landing places may be either public or private, according to the use to which they are devoted, although the property may be owned by private persons. Private property, if devoted to a use in which the public have an interest, becomes public, and subject to public control. So the property of the Chicago Dock and Canal Company, under its charter, is devoted to a strictly public use. Its right to exercise the power of eminent domain strengthens the view that it was created for public purposes only.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Bills were filed in these cases to enjoin the laying of railway tracks in Illinois street, in the city of Chicago. Answers were filed, not under oath, and the causes were referred to the master in chancery to take and report the evidence. The master reported the evidence, and the court thereupon enjoined the defendants, as prayed in the bills. Appeals were prosecuted from these decrees to the Appellate Court for the First District. That court affirmed the decrees, and the records are brought to this court on error.
    The substantial facts are: On the 9th day of June, 1879, the city'council of Chicago passed an ordinance by a majority of all the aldermen elected, authorizing the Chicago Dock and Canal Company to lay railway tracks on Illinois street, east of St. Clair street, and on the 15th day of November, 1880, the city council passed another ordinance, by the same vote, authorizing George Bullen & Co. to lay down railway tracks on Illinois street, from the east line of St. Clair street to Pine street, a distance of one block. The Chicago Dock and Canal Company, prior to the passage of either of these ordinances, had railway tracks laid on Illinois street, connecting with the tracks of the Chicago and Northwestern Railway Company, in North Water street, leaving the distance of about one block in Illinois street, east of St. Clair street, unoccupied by tracks. If the tracks were laid under these two ordinances, it would make a continuous line from Pine street, along Illinois street, to a point of connection with the tracks already laid, and enable persons to use such new tracks, and run cars on to the main track of the Northwestern Railway Company, in North Water street. The Chicago and Northwestern Railway Company was authorized, in writing, by the Chicago Dock and Canal Company and George Bullen & Co., to construct the tracks authorized by the ordinances, and was about to lay the same. Garrity, Dreyer and Heaney were the owners of lots on the north side of Illinois street, east of St. Clair. The Higginses were owners of lots on the north side of Illinois street, between St. Clair and Pine, and their lots, therefore, abutted upon the parts of Illinois street sought to, be used for railway tracks.

      The Chicago Dock and Canal Company was a corporation created by act of the legislature. (Private Laws 1857, page 499.) The company was authorized to construct on their own lands and on the shore of Lake Michigan, in the navigable waters, wharves, docks, piers,-etc., for the safety and accommodation of boats and vessels, and the advantageous use of their own property, wharves and docks. For that purpose they had authority to open canals, slips, etc., for the entrance of boats and vessels from the lake, and from the Chicago harbor and river. The company had power to buy and lease lands, and also to condemn under the Eminent Domain act. The corporation was empowered to vacate streets which passed through their own land, and to appropriate for their canals and other purposes so much of the east ends of the several streets passing through Kinzie’s addition, between the lake shore and St. Clair street. Neither the Chicago and Northwestern Railway Company nor the Chicago Dock and Canal Company claims any rights in the premises, save and except under and by virtue of the ordinance in question. George Bullen & Co. were the owners of a malt house and a warehouse of class “C, ” at the corner of Illinois and Pine streets. The ordinance for the use of Illinois street, between St. Clair and Pine, was intended to give access by rail and car, from the malt and warehouse, to the tracks of the Northwestern Railway Company. The city was the owner of the fee of Illinois street, over which it was proposed to lay the tracks. Garrity, Dreyer and Heaney filed a bill against the Chicago Dock and Canal Company, the Northwestern Railway Company, Bullen, and Young, to restrain them from laying tracks in Illinois street east of St. Clair, and from making any connection with railroad tracks west of St. Clair, on Illinois street. George W. Higgins and Thomas J. Higgins at the same time filed a bill against Bullen and Young, to prevent them from laying tracks on Illinois street east of St. Clair, and in front of the warehouse of George Bullen & Co.

      Mr. W. C. Goudy, and Mr. W. A. Montgomery, for the plaintiffs in error:
    The city council had power to pass ordinances giving permission to lay railroad tracks in Illinois street. General act of 1872, art. 5, secs. 1, 7, 27, 49, 90; Tuley’s Laws and Ordinances, 406.
    Under the special charter it was held that the city council had power to grant such permission, and that the operation of cars on tracks in the streets was consistent with the use of the streets as public highways. Moses v. Railroad Co. 21 Ill. 522; Murphy v. Chicago, 29 id. 279; Railroad Co. v. Hartley, 67 id. 439 ; Quincy v. Railroad Co. 92 id. 21; Stetson v. Railroad Co. 75 id. 74.
    The tracks authorized by the ordinances would not be private but public railways, and would become a part of the Chicago and Northwestern Railway Company’s tracks. Vincent v. Railroad Co. 49 Ill. 41; Railroad Co. v. People, 56 id. 365; Truesdale v. Grape Sugar Co. 101 id. 561; Mills v. Parlin, 106 id. 60; Getz’s Appeal, 3 Am. & Eng. Ry. Cases, 186.
    The ordinance required only a majority vote of all the members elect of the city council. General Incorporation Law, secs. 8, 13, 19, art. 3, and sec. 6, art. 1.
    The general revision in the act of 1872, on the subject of the powers of the city council and the mode of passing ordinances, must be held as an exclusion of all other modes, and repeal the old charter by implication. Culver v. Third National Bank, 64 Ill. 534; Andrews v. People, 75 id. 613; Devine v. Cook County, 84 id. 595.
    The act of 1872 having fixed the mode of passing ordinances, that mode excludes all others. Gaddis v. Richland, 92 Ill. 121. And see Potter’s Dwarris, 155; Dingman v. People, 51 Ill. 277; Devine v. Cook County, 84 id. 595; Chicago v. Bross, 9 Bradw. 406; Law v. People, 87 Ill. 402.

      An injunction will not be granted to prevent the laying of railroad tracks in a public street, where the fee is vested in the^public. Stetson v. Railroad Co. 75 Ill. 74; Patterson v. Railroad, Co. id. 588; Railroad Co. v. Schertz, 84 id. 135; Railroad Co. v. People, 92 id. 170.
    The same has been applied where the track proposed to be laid was by a private company to a factory. Truesdale v. Grape Sugar Co. 101 Ill. 561; Mills v. Parlin, 106 id. 60.
    Messrs. M. A. Rokice & Son, for part of defendants in error:
    Where a valid corporation assumes to exercise licenses or powers by virtue of invalid ordinances, a court of equity has jurisdiction to restrain it. Attorney General v. Railroad Co. 112 Ill. 520.
    As to distinction between a public and a private railroad, see Koelle v. Kencht, 99 Ill. 396. Neither of the donees named in the ordinances are the proprietors of any steam or horse railroads.
    The present charter does not contain substantially the same provisions as the old one on the subject of granting the privilege of constructing railroad tracks in the streets. Clause 90 of section 62, article 5, is a direct limitation on the power of the city council.
    Clause 25, giving power “to provide for and change the location, grade and crossings of any railroad, ” (Hurd’s Stat. 1885, p. 224,) refers only to railroad companies, and not to private individuals or corporations. This clause was doubtless intended to relate to such railroad companies as were already using the streets under prior grants, and clause 90 to future grants.
    Although the fee of the streets is in the city, it holds it in trust for the common and equal use of her citizens, and it violates the trust when it appropriates a street to an individual or private use by which the public is not benefited in any way. Dillon on Mun. Corp. sec. 521, note.

      An ordinance regulating the use of a street is a legislative act, and must be for the benefit of all citizens of the municipality, or it is void. The city council can not grant rights or franchises in a public street to one which are not granted or are denied to others. If it does so, the ordinances are unreasonable, and therefore void. Tugman v. Chicago, 78 Ill. 405; Bailing v. West, 29 Wis. 307.
    The cases cited by plaintiffs in error have no application to the eases presented by this record. They were under a different law, containing an express grant of power to direct and control the location of railroad tracks, in which respect it was much stronger and different from the “City act of 1872.”
    The ordinances did not receive the requisite number of votes. We claim that clause 9, of the act of 1867, requiring a vote of three-fourths of all the aldermen elected to pass such an ordinance, is in force yet in the city. Hurd’s Stat. 1885, p. 217.
    The repeal of a law by implication is not favored. City of East St. Louis v. Maxwell, 99 Ill. 439; Hume v. Gossett, 43 id. 297; Booth v. Schuyler, 4 Gilm. 221; Town of Ottawa v. La Salle County, 12 Ill. 339.
    If the two acts by a reasonable construction may both stand, the later law will not repeal the prior one by implication. Card v. McCaleb, 69 Ill. 314; Covington v. East St. Louis, 78 id. 549; Wragg v. Penn Township, 94 id. 11; City of Champaign v. Harmon, 98 id. 491; Holton v. Daly’s Admx. 106 id. 131; Chicago v. Quimby, 38 id. 274.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The first question discussed in the arguments on behalf of the respective parties relates to the mode of exercising the power by the city council to pass an ordinance authorizing the location of railway tracks in the streets of the city of Chicago. Both sides agree that the city council has power to that end, but they disagree as to the statute by which it is conferred, and, as a consequence, as to the limitations under which it can be exercised. The city of Chicago was organized under the general law in relation to the incorporation of cities, etc., at the time of the passage of the ordinances in controversy here, and plaintiffs in error contend that the ninth and twenty-fifth clauses of section 1 of article 5 of that law (1 Starr & Curtis, 465,) confer the power, and that it is subject only to the limitations contained in clause ninetieth of the same section, and in section 13 of article 3 of the same law, while the defendants in error contend that the power is conferred by the ninth clause of section 1 of article 5 of the amendment to the charter of the city of Chicago, of March 9, 1867, (vol. 1, Private Laws of 1867, p. 771,) and subject to the limitations contained in that section, as well as to those contained in the ninetieth clause of section 1 of article 5 of the general Incorporation law.

It is.provided by section 6 of article 1 of the general Incorporation law, that “from the time of such organization or change of organization, the provisions of this act shall be applicable to such cities and villages, and all laws in conflict therewith shall no longer be applicable; but all laws or parts of laws not inconsistent with the provisions of this act shall com tinue in force, and applicable to any such city or village, the same as if such change of organization had not taken place. ” And it therefore becomes necessary to inquire whether the ninth clause of section 1 of article 5 of the amended charter of 1867 is ineonsistbnt with the provisions of the general law. That clause provides that the city council shall have power “to authorize the use of the streets and alleys in said city by railroad companies, or city railway companies, for the purpose of laying tracks and running cars thereon: Provided, however, permission or authority shall not be given, nor shall any such grant or permission already given be extended, unless by vote at least of three-fourths of all the aldermen elected, such votes to be entered, by ayes and noes, on the records of the council: And provided, further, that no grant, consent, contract or permission heretofore given or made, or hereafter to be made or given, shall in any case be extended until within one year of the expiration of such grant, consent, contract or permission: And provided, further, that in case of a veto by the mayor, any such grant or permission shall receive the votes of tliree-fourths of all the aldermen elected, to take effect as an act or law of the corporation. ” The ninth clause of section 1 of article 5 of the general Incorporation law confers power upon the city council to regulate the use of streets, and the twenty-fifth clause of the same section confers power upon the common council in these words: “To provide for and change the location, grade and crossings of any railroad.” Eliminating all the words not pertinent to the power here in question, .it reads: “To provide for *' * * the location * * * of any railroad. ”

In Moses et al. v. Pittsburgh, Fort Wayne and Chicago Railroad Co. 21 Ill. 522, and Murphy v. Chicago, 29 id. 279, the charter vested the common council with the exclusive control and regulation of the streets of the city, and with power “to direct and control the location of railroad tracks, ” (see Public Laws of second session, 1849—51, “Act to reduce the law incorporating the city of Chicago, and the several acts amendatory thereof, into one act,” etc., pp. 145, 146, clauses thirtieth and forty-ninth, of section 4, chapter 4,) and it was held that this conferred power upon the common council to authorize the location of the railway tracks in the streets. Following that ruling, it must be held there was like power conferred by the ninth and tv'enty-fifth clauses of section 1 of article 5 of the general Incorporation law. The power to regulate the use of the streets, although not so expressly declared, is, in the latter act, as exclusive as in the former, and the word “regulate,” as used in the latter act, embraces everything included within the meaning of “control and regulation,” in the former. “Control” is a necessary incident of “regulation, ” and it is implied in the latter act as clearly as it is expressed in the former. So, also, “to provide for the location of any railroad,” is clearly as comprehensive as “to direct and control the location of railroad tracks.” “To provide for,” implies, of necessity, power" “to direct and control, ” for the location can only be in conformity with the mode provided for,—i. e., in subordination to the direction and control prescribed by the ordinance.

But, in our opinion, this power is subject to the limitation imposed by the ninetieth clause of section 1 of article 5, which declares : “The city council or board of trustees shall have no power to grant the use of, or the right to lay down, any railroad tracks in any street of the city, to any steam or horse railroad company, except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.” It is very clear that “natural persons” are here within the intention, although not within the'letter, of the act, for the injury against which protection is intended to be afforded is the laying of railway tracks in the streets. By whom the tracks shall be laid and the cars thereon operated, is, manifestly, of no consequence whatever. The same result, in all respects, will follow the laying of railway tracks in the streets and operating ears thereon by individuals, as will follow the laying of them by corporations. The use of the word “company, ” we have no doubt, was simply because such tracks are almost always laid and operated by companies. The clause should be read as including both corporations and individuals. Perry County v. Jefferson County, 94 Ill. 214; St. Louis, J. and C. Railroad Co. v. Trustees, 43 id. 303.

This, it will be observed, is not a grant of power, but a limitation upon a power assumed to be granted by some other provision of the same statute, for this statute professes to be a complete city charter in and of itself, without reference to other statutes; and since no one claims that any other than the ninth and twenty-fifth clauses can be construed to be a grant of power to lay tracks in the streets for steam railways, the reasonable inference is, that the legislature intended the ninetieth clause as a limitation upon the power granted in those clauses. • Assuming, then, that the common council are vested with this power, subject to this limitation, section 13 of article 3, of the same statute, directs in what manner that body shall exercise it. It provides that “the yeas and nays shall be taken upon the passage of all ordinances, and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases, at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: Provided, it shall require two-thirds of all the aldermen elect to sell any city or school property. ” This proviso adds force to the comprehensiveness of the general language in the first part of the section, and conclusively shows that it was not intended that the concurrence of more than a majority of the members elected to the city council should be indispensable to the passage of an ordinance in relation to any other subject than that of selling any city or school property. The maxim, “exjoressio unius est exclusio alterius,” is applicable. Broom, in his work on “Legal Maxims, ” under this head says: “A statute, it has been said, is to be so construed, if-possible, as to give sense and meaning to every part, and the maxim was never more applicable than when applied to the interpretation of a statute. ” 4th ed. pp. 419-420, *512.

Here, then, we have, upon the same subject, inconsistent requirements. Under the amendment of the city charter of 1867, permission .or authority to lay tracks in the streets shall not be granted by the city council unless by a vote of at least three-fourths of all the aldermen elected. Under the general Incorporation law, such permission- or authority may be granted by a vote of a majority of all the members elected in the city council. It can not be said that the provisions of the general law are supplementary to the amendment of 1867, or that that amendment is supplementary to the general law, for no exception in its favor is made in the general law, arid that law assumes to provide a system the details of which are complete. To illustrate: The amendment of 1867 has no application, in any view, to any other city than Chicago. The general law applies to every city in the State organized under it. In every city not previously organized under a special charter, and in every city previously organized under a special charter not containing provisions authorizing the laying of railway tracks in the streets, either there is a denial of power to lay railway tracks in the streets, or that power is granted by the clauses in section 1 of article 5, to which we have referred, and, as we think we have satisfactorily shown, it is granted by those clauses. Then, as to those cities, we would have a system in force prescribed by the general law, while in the city of Chicago, organized under the same law, we would have a different system in force prescribed by a former special law. What other provisions of the former special charter might not be perpetuated in the same way? We have repeatedly held there is no authority under the constitution to perpetuate, under general laws, dissimilar and discordant provisions of municipal government. "The provisions of the amendment of 1867 are inconsistent with the provisions of the general law upon the same subject, and are therefore not applicable to the city of Chicago since it organized under the general law.

But the point is made that the grants, by virtue of these ordinances, are to a private corporation and to private parties, and they are illegal for that reason. All railway companies in this State are private corporations, but the use of the railways is public, and this authorizes the condemnation of private property for right of way, etc. 1 Bedfield on Bail-ways, (3d ed.) 53, and Cooley’s Const. Lim. (1st ed.) 530-31, et seq. It is not claimed that the use of the streets can be permanently granted for private purposes, and we recognize as unquestionable law that the use of the streets, whether for vehicles drawn by animals, for those riding upon animals, for footmen, or for the passage of railway cars, must be for the public, and that no corporation or individual can acquire an exclusive right to their use or the use of any part of them for private purposes. But we have held that there may be a grant to private individuals of the right to lay tracks in the streets connecting with public railway tracks previously laid, and extending to the manufacturing establishments of those laying the tracks; but in such eases the tracks so laid become, in legal contemplation, to all intents and effects, tracks of the railway with which they are connected, and open to- the public use and subject to the public control in all respects as other railway tracks open to public use. We have not regarded the circumstances that they were laid with private funds, and that they terminated opposite or within convenient contiguity of. a private manufacturing establishment, as materially affecting them, and giving a private character to their use. All termini of tracks and switches are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this. If they are open to the public use indiscriminately, and under the public control to the extent that railroad tracks generally are, they are tracks for public use. It may be, in such cases, that it is expected, or even that it is intended, that such tracks will be used almost entirely by the manufacturing establishment, yet if there is no exclusion of an equal right of use by others, and this singleness of use is simply the result of location and convenience of access, it can not affect the question. Truesdale v. Grape Sugar Co. 101 Ill. 561; Mills v. Parlin, 106 id. 60.

The Chicago Canal and Dock Company is a private corporation created by an act of the General Assembly approved February 12, 1857. (Private Laws of 1857, p. 499.) Power is given to the company by section 4 of that act “to inclose, to make and protect, and also to erect and construct on their own lands, and on the shore, and in the navigable waters of Lake Michigan, * * * wharves, docks, moles, piers, breakwaters, and such other erections, protections, improvements and conveniences for the safety and accommodation of boats and vessels, and the security and advantageous use of their own property, wharves and docks, or for the purpose of convenience in the use and enjoyment of said property by the said company, as the board of directors of said company may deem necessary and proper. ” The 5th section1 empowers the company to dig basins, canals and slips, erect embankments, etc., and preserve and maintain the same for the entrance of boats and vessels of all kinds from the lake, and also from the Chicago harbor and river, etc. The 6th section authorizes the company to buy and hold land for corporate purposes. The 7th section authorizes the company to take lands by condemnation, and the 9th section authorizes the company to vacate streets on their own lands.

Dillon, in his work on Municipal Corporations, (1st ed.) section 68, says: “Wharves, piers, quays and landing places may be either pvblic or private. They may be, in their nature; public, althohgh the property be owned by an individual. If private, the public have no right to use the erections without the owner’s consent, express or implied; if public, they may be used by persons generally, upon the payment of a reasonable compensation.” And again, in section 69, he adds: “The keeping of a wharf or dock, erected and opened to the public, like the keeping of an inn, confers a general license to boats and vessels to occupy it for lawful purposes,—a license which can only be terminated by notice and request to remove the vessel. When thus established, the owner, at common law, is, as respects the public, hound to keep it in good repair,” etc. The Chief Justice,-in delivering the opinion of the court in Munn v. Illinois, 94 U. S. (4 Otto,) 126, said: “Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.”

It is thus clear that the property of this corporation is devoted to a public use, although its ownership is private. The entire business of the corporation is with the public. It can own no vessels,' and- its, property can be used for profit only for the accommodation of the public. In conferring the power of eminent domain upon it, the legislature gave the strongest possible confirmation of the view that it is created for public purposes only. The Chicago and Northwestern Railway Company is also a private corporation, created for a public purpose,—namely, the construction and operation of a great line of railway. Two tracks were built by the Chicago Canal and Dock Company, connecting with the main track of the Chicago and Northwestern Railway Company, and extending thence— one track along Water street to a basin of the canal and dock company, and the other- diagonally, in a north-easterly direction from Water street, across lots belonging to the company, —to Illinois street, and thence eastwardly a-long Illinois street to Lake Michigan. These tracks then became, under the rulings of the cases before referred to, and in fact, railway tracks for public use,—extensions, in practical effect, of the lines of the Chicago and Northwestern Railway Company. They were built by a corporation whose franchise wras exercised solely for the public use, extending the lines of a railway operated for the public use, and so we can not assume it was intended that their use should be other and different than that of the corporation by which they were built, and the corporation of whose lines they are practically extensions. The ordinance now under consideration, which authorizes the canal and dock company to lay railway tracks in Illinois street, authorizes simply a track to be laid in that street westward from the point where the track just mentioned is laid in Illinois street, to the east line of St. Clair street,—making a western extension, by that much, of the track already in Illinois street. It must follow, if the track already in Illinois street is for a public use, this is so also, for, in effect, it is but an extension of the same track. The ordinance authorizing Bullen & Co. to lay a track in Illinois street, authorizes, simply, a still further extension of the same track westwardly,—that is, from the east line of St. Clair street to the west line of Pine street,—a distance of one block. Bullen & Co. are the owners of a malt house, and a warehouse of the class “C, ” at the corner of Illinois and Pine streets, and so their business also is for the public use, under the constitution and laws of this State. The first section of article 13 of our constitution provides: “All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.” And the fifth section of the same article requires that “all railroad companies receiving and transporting grain, in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to' which it may be consigned, provided such consignee, or the elevator, or public warehouse, can be reached by any track owned, leased or used, or which can be used, by such railroad companies; and all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad. ”

It is thus made clear, beyond controversy, that this warehouse is a public warehouse,—that the Chicago and Northwestern Railway Company could not, if they would, have declined allowing this connection to be made, and that the track itself is, necessarily, for public use.

Some objection is urged that these tracks are not so direct as they might be, for the purpose of connecting with the Chicago and Northwestern railway. That is-not a matter affecting the power of the city council,—it addresses itself purely to the judgment and discretion of the members of that body. The case of Koelle v. Knecht, 99 Ill. 396, is not analogous. Such a switch or spur as was there built, can only be built where the builder owns the entire soil, and he is under no obligation to ask any rights of the public. It could not be built in the streets of a city, and in the absence of an express declaration of such intention, a court would not be warranted in assuming that an individual was desiring, or that a city council was consenting, that the streets of a city should be illegally obstructed by railway tracks for a mere private use. If such an intention did appear, it would, undoubtedly, be the duty of courts to enjoin the laying of the tracks. But railway tracks,, although built with private means, and for the express purpose of directly benefiting the builder by the facilities thus afforded for transportation, but with no design to exclude the public from the equal right of the use of them, are not within the private control of the builder, nor for private use, in a legal sense. Anyone may, that chooses, make donations of money and property in aid of the extension of lines of railway in order to bring their facilities to liis own door, but so long as su.ch extensions are operated by the railway company, as are other parts of its lines, for the public benefit, the use does not become private. If here, in the first instance, the Chicago and Northwestern Railway Company had built these tracks, and operated them precisely as it must operate them after they shall be built,—that is, as other parts of its line, in like situation, are operated,—no one would pretend that the use was private; and yet, then, as now, by the accident of location, the canal and clock company and Bullen & Co. would derive great advantage therefrom. In this class of cases the private contribution only places a public use where it can be enjoyed by the contributor,—in other words, puts him, as respects railway advantages, where other interests more favorably located were, without a contribution.

Being of opinion that the ordinances are valid, and that the tracks may lawfully be laid in the streets, Attorney General v. Chicago and Evanston Railroad Co. 112 Ill. 520, has no application. The case is governed by Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 74, Truesdale v. Grape Sugar Co. supra, and Mills v. Parlin, supra.

The decree of the circuit ■ court and the judgment of the Appellate Court are reversed, and the cause is remanded to the circuit court, with directions to that court to dissolve the injunction and dismiss the bills.

Judgment reversed.


text:
    The Pittsburgh, Cincinnati and St. Louis Railway Company v. James McGrath, Admr.

      Filed at Ottawa November 14, 1885.

    1. Negligence—definition of slight and gross negligence. In an action based on alleged negligence of the defendant, an instruction was asked by the defendant, that “slight negligence is 'any negligence which .essentially contributes to the injury. Gross negligence is such negligence, only, ,as evidences a disposition to inflict injury or see it inflicted,”—which was refused: Held, properly refused, as not a correct definition of gross negligence.
    2. Same—degree of care of person injured. On the trial of an action by an administrator against a railway company, to recover for the killing of the intestate, one of its servants, through negligence, the defendant asked this instruction: “The jury are instructed that the first duty of the deceased, T. K., was to take reasonable care of his own safety, even though to do so required his whole time,"—which the court modified by striking out the words in italics, and then gave it: Held, that the modification was proper.

      3. Evidence—deposition of witness since deceased, taken by coroner. In an action against a railway company to recover damages for the killing of plaintiff’s intestate through alleged negligence, the deposition of a witness taken before the coroner upon an inquest upon the body of the deceased, the witness being dead, is not admissible in evidence on the question of negligence.
    4. Same—what is proper cross-examination. On the trial of an action by an administrator against a railway company, to recover for negligence of the company causing the death of the intestate, a witness for the defendant testified that it was the custom in the defendant’s yard for the men to clear the track on the approach of a locomotive, and that a section-man was expected to look out for his own safety. On cross-examination he was asked if it was not a custom of the company, or of all companies, to have a foreman with the section-men, to warn them of the approaching trains. He answered that the foreman could not always be with his men. He should be with them unless some necessary work calls him away. That when present it was customary for him to look out for passing engines, and warn the laborers: Held, as answered there was no error in allowing the question, and that it seemed to have been proper and pertinent cross-examination.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    The court erred in excluding the deposition of John Eau, taken before the coroner, the witness being dead. Proof of what a witness testified to on a former trial, may be made by one who was present and heard the testimony, if the witness is dead. Railroad Co. v. Keep, 22 Ill. 9.
    Post mortem inquisitions made under competent public authority are within some of the exceptions of the rule in regard to hearsay. 1 Greenleaf on Evidence, sec. 556; Starkie on Evidence, (10th Am. ed.) *404; Burridge v. Earl of Sussex, 2 Ld. Raym. 1292; Sergeson v. Sealey, 2 Atk. 412; Fauldner v. Silk, 3 Camp. 126 ; Sills v. Brown, 9 C. & P. 601.
    The court erred in allowing questions not properly the subject of cross-examination.
    The court erred in refusing defendant’s ninth instruction : “Slight negligence is any negligence which materially contributes to the injury. Gross negligence is such, only, as evidences a disposition to inflict an injury or see it inflicted. ” The definition given in the instruction is correct. Pennsylvania Co. v. Conlan, 101 Ill. 93; Railroad Co. v. Morgenstern, 106 id. 216; Railroad Co. v. Hetherington, 83 id. 510; Stratton v. Horse Ry. Co. 95 id. 25; Railroad Co. v. Johnson, 103 id. 512; Schmidt v. Sinnott, id. 169.
    The court erred in modifying defendant’s fifth instruction. Freedom from severe or fatal injury was of more importance to the company, as well as to the deceased, than the performance of any given amount of labor.
    Mr. M. J. Dunne, for the appellee:
    The deposition of the witness taken before the coroner was properly excluded as hearsay, and for want of an opportunity to cross-examine. 1 Greenleaf on Evidence, see. 554, 164; Cook v. Railroad Co. 5 Laws, 401.
    The court is not bound to give an instruction on an abstract principle. Hesing v. McCloskey, 37 Ill. 341; Dole v. Kennedy, 38 id. 282; American Express Co. v. Parsons, 44 id. 312; Ashlock v. Linde, 50 id. 169.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action against the railway company to recover damages for the killing of plaintiff’s intestate through the alleged negligence of the defendant, wherein the plaintiff recovered. The judgment was affirmed by the Appellate Court for the First District, and defendant took this appeal.

Error is assigned in the excluding of the deposition of a witness taken before the coroner, upon a coroner’s inquest upon the body of the deceased, the witness being dead. English cases are cited where such depositions have been held admissible in evidence. Starkie, in remarking upon this subject, observes: “It has been said that depositions taken.by'a coroner are evidence although the prisoner was not present, because the coroner is a public officer appointed to inquire of such matters, and therefore it is to be presumed that such depositions were fairly and impartially taken; yet it seems the admissibility of these depositions stands altogether upon the statutes,” etc. (2 Starkie on Evidence, 490, marg.) As quoted from 1 Phillips on Evidence, 224, marg. (Cow. & Hill’s notes, 5th Am. ed.): “The 4th section of the 7 G. 4 c. 64, enacts that every coroner, upon any inquisition before him taken, whereby any person shall be indicted for manslaughter or murder, * * * and shall certify and subscribe the evidence, and also the inquisition before him .taken, and shall deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court. It has been held in the construction of the statute of Philip and Mary, under which depositions before coroners used to be taken, (and the same decisions seem to apply equally to cases under the new statute above cited,) that in case any of the witnesses * * * are' dead, * * * their depositions may be read on the trial of the prisoner.” The provision of our statute simply is, “which testimony (before coroner) shall be filed with said coroner in his office, and carefully preserved,”—there being no implication, as in the English statute, that the inquisition is for use in court.

There is such difference between the statutes as to afford room for question whether the English decisions' fully apply. The cases in which such depositions have been received, are mostly criminal cases, but they have been received in a civil case. (Sills v. Brown, 9 Carr. & Payne, 601.) The plaintiff was not a party to the proceeding before the coroner, was not present, had no opportunity for the cross-examination of the witness, and any question of negligence,—the vital question in this case,—was not the very matter of inquiry before the coroner. The legitimate object of the inquest would have been fulfilled in finding simply that the death of deceased was caused by his being run over by a railroad train, without inquiry whether it was through any one’s, or whose, negligence. We are of opinion the deposition was rightly excluded. In the case of Cook, Admr. v. New York Central Railroad, Co. 5 Lansing, 401, it was so ruled. And see The State v. Turner, 1 Wright, (Ohio,) -21, and. note to above, citation from Phillips.

The witness McLaughlin, on direct examination by the defendant, had testified that it was the custom in the yard for section-men to clear the track on the approach of a locomotive. Bach section-man was expected to look out for his own safety. On cross-examination the witness was asked whether it was not a custom of the company, or of all companies, to have a foreman with the section-men to warn them of the approach of trains. This question was objected to, objection overruled, and the witness answered: “The foreman can not always be with his men. ■ He should be with them unless some necessary work calls him away. When the foreman is present, it is customary for him to look out for passing engines, and warn the laborers. ” The admission of this question is assigned as error. At least as answered, we find no error in permitting the question. It seems to have been proper and pertinent cross-examination.

Refusal to give the following instruction asked by defendant is assigned for error:

“Slight negligence is any negligence which essentially contributes to the injury. Gross negligence is such negligence, only, as evidences a disposition to inflict injury or see it inflicted. ”

We do not recognize this as a correct definition of gross negligence.

Defendant asked this instruction:

“The jury are instructed that the first duty of the deceased, Thomas Kelly, was to take reasonable care of his own safety, even though to do so, required his whole time.”

—Which the court modified by striking out the words in italics, and as thus modified gave the instruction. Objection is taken to this modification. We think the instruction was properly enough modified.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.