source: Caselaw Access Project

author: Tuley, J.

license: Public Domain

text:
      (Circuit Court of Cook County. In Chancery.)

    Albert F. Lunt vs. Laura Marshall Lunt.
    (May 20th, 1902.)
    1. Servio® by Publication — Equivalent to Personal Service — ■ Whether Defendant in Divorce Proceedings Bound by Decree. Where the defendant in a divorce proceeding is served hy publication, and receives the notice of publication by mail, he has had his day in court, and is bound by the decree of the court.
    2. Divorce — Obtained by Non-Resident — Right of Defendant to Set Asm® by Bill of Review Where Court Imposed Upon. Where a person obtains a divorce and the court is made to believe that such person is a resident of Illinois the defendant is permitted on the ground of public interest to file a bill of review and have the decree vacated.
    3. Domicile — What Constitutes — Intent. The question of what constitutes the domicile of a person is largely a question of intention.

      4. Same — Shown to Exist is Presumed to Continue. Where a particular domicile is shown to exist it is presumed to continue unless changed by clear and satisfactory evidence.
    5. Same. Evidence reviewed as to whether party had changed her domicile.
    Bill of review to review divorce proceedings. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.

      J. F. Richards, for complainant.
    J. B. Brady, for defendant.
   Tuley, J.

(orally):—

This is a bill filed by Albert F. Lunt, complainant, against Laura Marshall Lunt, defendant. It is a bill of review, strictly speaking, and the only issue made by this bill is that of the residence of the present defendant (then complainant), at the time of the commencement of the divorce suit in which the decree was entered, which is sought to be reviewed. It is necessary under the statutes of this state, that every complainant in a divorce suit shall have resided within the limits of the state of Illinois for one year prior to the commencement of the suit. The divorce suit was commenced the last day of December, 1895. The evidence shows that publication was made as to the defendant in due form, that he received the notice of publication sent to him by the clerk; that he wrote to an attorney in this city concerning the suit; that he made no appearance, and that on the 11th day of March, 1896, default having.been entered, evidence was heard and a decree of divorce pronounced upon the ground of desertion. He was telegraphed to, either the same day or the next day after the decree was entered, he, the husband, being then a resident of Boston, I believe.

Inasmuch' as the notice was received by the defendant in that case (which under our statute was equivalent to personal service) he could have no standing in a court of equity to review the facts upon which the decree was granted. As to the facts of that case he may be said to have had his day in court, and if he had any defense to that, he had an opportunity to make his defense. Not having made it, when he had an opportunity to do so, he is forever barred from making it thereafter, he is forever barred thereafter from setting up anything in opposition thereto. So that his counsel does not undertake in the bill of review filed, to contradict the facts upon which the decree of divorce was granted (desertion being the ground of divorce), he could not do it, because he was barred from making any such issue.

Not out of consideration for the defendant in the divorce suit; but out of consideration for the public interest, he is permitted by the law to come into court, and to show to the court, if he can, that a fraud has been practiced upon the court in regard to the right of the party to commence the suit, in regard to residence; that the court was imposed upon in being made to believe that the complainant in the divorce suit, the wife, had been a resident of the state of Illinois for one year prior to the filing of the bill for divorce. I say that is permitted to a defendant in a divorce suit upon the ground of public interest, for the public good; and in any case where the court is imposed upon as to jurisdiction, any party may come in and take advantage of it even although he benefits by so doing.

So that the only issue presented here is a question of fact as to the actual residence of the wife on the 31st day of December, 1895, the day the suit was commenced.

The complainant, the husband, has stated his story and she has told hers. They do not disagree as to one fact. It is evident from the testimony of both of them that this was a very unfortunate' marriage, and it is to be deduced from the evidence I think of. both the husband and the wife that the marital love between them scarcely survived the period of the honeymoon. Their story as to the main facts bearing upon the question at issue do not materially differ.

They were married in 1882. They lived unhappily — by inference from their own evidence and from the positive testimony of members of her mother’s family, — until in. 1888, when the husband took the wife to the East to visit his uncle. They went to Newburyport; the husband only remained a few days, — was obliged to return to Chicago. The wife remained with his consent several weeks. "When she came hack, as I understand the evidence, she made some flying visits, probably to the East, I think in 1890. The evidence •shows that she wished to return East to this uncle. The husband says he objected; the indifferent evidence of third parties shows that if he did object, it was on the ground of not having money to pay his wife’s expenses. She went East with her aunt in 1892, and never returned to live with the ■defendant as man and wife from that day on.

The complainant’s uncle, Captain Lunt, was an old man ■of some seventy-five years of age at that time, and quite wealthy, very liberal, and at that time was a hale and hearty man for his age. He was evidently pleased with Mrs. Lunt, "it may be that he was somewhat infatuated with her, but that "he loved her other than as a father would love a child, there is no reason to suppose for one moment, in fact the most creditable part of the complainant’s testimony in this case was "his declaration that he never suspected any improper conduct on the part of his wife with Captain Lunt.

In 1893 the complainant in this case, the husband, went ■on to Boston — 1 am mistaken about his wife going there in 1892, she had been there some three years at that time. In "1892 or 1893, he went to Boston, and went into business in the grain commission business, — opened up an office. His wife had induced his uncle to advance him $10,000 in cash, at least she swears she induced him to do so, and he swears that "he don’t know how his uncle came to do it, as I understand it.

Now, up to the time certainly, that she left Chicago for her uncle’s in the East, her residence was the city of Chicago; -that was her domicile.

The first question that arises is whether she went East with the intention of changing that domicile. There is no evidence “to show that she went otherwise than on a visit. Her aunt, with whom she went at that time, stated that nothing was •.said about her return, and that she went merely on a visit.

The relations between this husband and wife, as stated, were not at all pleasant; they were estranged from each other, and the sexual relation had ceased for some time.

The evidence tends to show that while they lived here in Chicago some several years after their marriage, he lived with her mother and paid little or nothing for the support of himself and wife; that he never gave the wife any money of any consequence, very little, if any. I think the evidence tends to show that it was not exceeding probably forty or fifty dollars, the whole time. He says though that he gave her money from time to time as his circumstances permitted; the amount he did not pretend to state. His circumstances did not permit him apparently to pay any board, and they may not have permitted him to give his wife even pocket money. They were at that time when the wife left Chicago, husband and wife only in name, had been so for some time.

If he had never gone to Boston and had remained here in Chicago, the question arises, what would have been her domicile, her place of residence? The evidence of her stepfather, her sister and her aunt, several members of the family, shows conclusively that not only then but ever afterwards she always claimed Chicago to- be her home.

Her mother died, I think, in 1890 or 1892, leaving her an heir to a quarter interest in the homestead here in Chicago, which quarter interest she still retains. Now, as she went there upon a visit, what was her intention, as shown by her acts? She was in delicate health hereself, her uncle became in bad health; they passed a good deal of the time on board of the yacht and in the South. She ministered to his wants. She had a home there in one sense, that is, she had her eating, her drinking, she got her clothes to wear, and it was the only place where she could sustain herself in her condition of health by her own exertions, — as she put it, she was earning her own living, because her husband did not support her.

What was she to do? Was she to come back here and make herself a charge upon her family, upon her stepfather and upon her mother while she lived? That is the question that ■confronted this woman when her uncle offered her a home while he lived if she would take care_of him — that was practically the arrangement. How could she do otherwise than accept? But did she in so accepting and consenting to attend to his wants while he lived, did- she intend thereby to change her residence, her permanent residence from Chicago to Newburyport? If the complainant here, her husband, had never come on to Boston and gone into business in 1893, there could be in my mind no possible question. Now, did his coming on there make any change in her situation upon that question ?

As I gather from the evidence, when he went on to Boston, their relations were as strained after that as they were before in Chicago; they were not husband and wife except in name. Did he take up any residence there ? He says, and the evidence tends to show that he lived probably six or twelve months, maybe more, at Ms uncle’s house in Newburyport. He paid no board, it cost him nothing, and he utters Ms complaint upon the witness stand here of the manner in which he was treated, that he was ignored. He says the only friend he had about the house was the pet dog. That may be true, but it tends to show the relations that existed between this man and wife, and as to whether he was in any sense providing a home for his wife. The uncle provided the home, he did not. And from the1-day she left Chicago, way back m 1890, the evidence fails to show that he ever said to his wife, “Come home; come to me and live with me. Here is a home ready prepared for you; I am able to take care of you.”

Until Ms uncle’s death, which was in 1896, the evidence rather tends to show that he was never able to provide her a home; he certainly never furnished one and tendered it to her. What was the wife to do at that time after he came on to Boston? He did not offer her a home, she had no other place to go except her uncle’s-where she was already. Could she do otherwise than as she did ? Most assuredly not, in my opinion.

The case would present a different feature if when he went to Boston he had tendered her a home, had prepared a home, even had requested her to go and live with him in a home.

He was no more to her when he was in Boston, even when he was carrying on business in Boston and going home to Newburyport nights, he was no more to her, from the evidence, than any other visitor would have been to the house, and he, according to his own evidence, was neither more or less than a visitor — whether an enforced one or not is not material.

A wife may have a separate home from her husband when his conduct towards her justifies her in having one, in living separate and apart from him, but this question of domicile is, a question largely of intention. A domicile once shown to exist, as it is shown to exist in this ease as to the wife, and to have been in ‘Chicago, must be shown to have been changed by clear and satisfactory evidence. If there was a doubt — ■ and there is really none in my mind but what this was her home, her domicile in the eye of the law up to the time that she filed her bill for divorce, and for some months afterwards —if there was any doubt upon the evidence, under the peculiar circumstances of the case, they must all be resolved in favor of the wife.

This complainant was asked on the stand by the attorney of the wife, “Have you now any regard for this woman?” His answer was, “I decline to answer.” The court asked him, it having been developed that, he had written her a letter in which he made a claim to an interest as tenant by curtesy to some property his uncle had left her (the uncle having died in 1896, and leaving him $75,000 and her an equal amount), he claimed an interest as tenant by curtesy under the law of Massachusetts. The court asked him here upon the stand whether he wanted a wife or wanted her property, and he said he would leave that to the court to judge. I must judge that he does not want this woman for his wife. It may be that the motive that influences him is a pecuniary one — • to obtain some interest as a husband, by setting aside this decree of divorce; but the evidence tends to show also, that there is a very considerable degree of malice in this prosecution. The suit ought never to have been brought by the complainant.

The object is not to have the wife live with him. The wife has since remarried, apparently happily, married about a year after the divorce was granted, and the complainant knew this, knew of her intention to marry, but he made no objection. It is shown that at the time of his uncle’s death, when his wife and himself were at the uncle’s house, that the matter of her having obtained the divorce was spoken of, it had only- been obtained then a few days, and that he expressed his satisfaction, and told his wife for her satisfaction that he was in love with another girl, mentioning her name, and where she lived, and that he was going down to Boston to buy her a set of diamonds and a ring, something to that effect.

He postponed commencing this suit to within a few days of the five years, a few days less than the limitation of five years limited for the bringing of the bill of review. He allowed the three years provided by a statute to lapse. He could have come in under the statute simply by making an appearance, and have had the decree re-opened, and he would be allowed to defend. upon the merits; but he allowed the three years to expire, and he allowed the five years within a ■few days to expire.

The court has already" directed the clerk to enter the judgment of this court. The finding of the court is that the equity of this cause is with the defendant, and that the complainant’s suit be dismissed, with costs, for want of equity.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)

    Preston Kean & Co. vs. Enos Ayers, Collector.
    (1878.)
    1. Constitutional Law — Class Legislation — Validity or Revenue Law Assessing Property or Private Bankers. That provision of the revenue law which provides for the assessment of the property of private bankers as a class and prescribes a different rule from that prescribed for listing the property of other citizens, is not so clearly and palpably repugnant to the constitution as to justify the court in declaring - it invalid.
    2. Taxation — Whether Banker Must Make Return as to Moneys on Deposit. A banker is not required to make return to the taxing authorities of the moneys of his depositors. The provision of the revenue law which requires the making of a return as to “money on hand” means the money of the banker and not of the depositor.
    S. Double Taxation — Presumption as to. The revenue law will be so construed as to not impose double taxation- on any species of property.
    4. Taxation — Credits in Hands of Banker; Where a banker converts the deposits of his customers into promissory notes or bills receivable, such credits are taxable in the hands of the banker even though the deposits as such were exempt.
    5. Same — Equity of; Perfect equality or singleness of taxation in the strictest sense is an impossibility. All that can be done is to approximate as near as can be to equality of taxation.
    6. Same — Moneys Due to Banks from Other Banks — Whether Subject to Taxation. Where part of the bonds of a banking firm are placed on deposit with other banks, such funds cannot be considered the funds of the depositors of the depositing ' bank but as credits of such depositing bank which are subject to taxation in its hands.
    7. Same — Government Bonds Held as Temporary Investment. Whether government bonds which are not held as a permanent investment are exempt from taxation — quaere.
    S. Same — Jurisdiction of Court of Equity to Restrain Collection of Illegal Tax. When an illegal tax is a mere personal charge against the party assessed there is no ground of equity jurisdiction as the remedy at law is adequate.
    9. Same — In Case of Real Estate. Where an illegal tax is assessed against real estate, a court of equity takes jurisdiction to remove a cloud from the title.
    10. Same — When Equity Should Not Interfere. Inasmuch as the . law gives a party an ample remedy to recover back the amount of an illegal tax and interest, equity should not interfere by injunction.
    11. Taxation — Overvaluation of Property — Decision of County Board — Power of Court. Where property was overvalued and application was made to the county board, the decision of such board which was vested with power to review assessments, was final and conclusive. Courts are not invested with power to make valuations or assessments.

      12. Taxation of Exempt Property — Power of Court of Equity to Restrain — Necessity of Applying to Statutory Board for Relief. When property exempt from taxation is assessed, equity has jurisdiction to afford preventive relief and the owner is not bound to apply to the statutory board for relief but may wait until an attempt is made to collect the tax and then apply to a court of equity for relief.
    13. Same — Effect of Application to Statutory Board on Right to Apply to Court of Equity. Where a party does apply to a statutory board for relief against an assessment on exempt property, he cannot thereafter apply to a court of equity for relief.
    Bill for injunction to restrain collection of tax. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.
   Tuley, J.:—

In the year 1878 the complainants, as private brokers, made a return to William A. Rice, collector of the town of South Chicago, of their personal property liable to taxation. The “return” not being satisfactory to the collector, he gave them due notice that he would review their assessment on the 12th day of August.'

Kean, one of the complainants, appeared before the assessor upon the day fixed. There is some evidence going to show that he refused to be sworn, but there is evidence that either then or before that date, he did submit to a lengthy examination by the assessor and his attorney as to the business and property of the firm,. The assessor added $50,000 to the amount of taxable property returned by complainants, making a total of $52,500, and gave them due notice thereof.

They applied to the board of county commissioners for an abatement of the amount added by the assessor, but although the committee of the board at one time appear to have been favorably inclined to recommend a reduction or abatement of a portion of the assessment, it failed to do so, but reported against any change, and the report was concurred in by the board.

Thereupon the complainants file this bill, offering to pay the tax due on $2,500 worth of personal property, being the amount returned by them as liable to taxation, and praying a permanent injunction against the remainder of the tax of $2,435.99, levied upon the assessment as increased by the assessor.

I shall dispose of the constitutional point urged by complainants counsel, to-wit: that the revenue law as to the mode of arriving at the property of private bankers and the amount of tax they shall pay, is void, because it singles them out as a class, and prescribes a different rule from that prescribed for listing and taxing the property of other private citizens, with the remark, that it is not so clearly and palpably repugnant to the constitution as to justify this court and the setting aside an act of the legislature.

The sworn statement or return required to be made to the assessor by section 30 of the revenue law was made as of May 1st, 1878, by complainants as follows:

1. Money on hand or in transit...'............ $..........

2. Funds in the hands of other banks, bankers and persons.....................................

3. Checks and cash items not included in foregoing ..........................................

4. Amount bills receivable and other credits due or to become due, including accounts receivable and accrued interest............ 438,971 04

5. Amount bonds and stock of every'kind, shares of stock of other corporations or companies, held as an investment or representing assets ................................ 134,600 00

6. All other property appertaining to business, not including real estate................ 2,500 00

7. Amount of all deposits made.with them by other parties.......................... 655,073 55

8. Amount of all accounts payable, other than current deposits.................................

9. Amount of bonds or other securities exempt by law from taxation, specifying the amount and kind of each, the same being included in 5th item, and legal tenders... 144,750 00

By the statute the aggregate of the 7th and 8th items, to-wit: $655,073.55 was to be deducted from 4th item, $438,-971.04. The 9th item, $134,600 was to be deducted from 5th item, which was also $134,600.

It will be perceived that these deductions being made there was left of all this property the paltry sum of $2,500, which was the estimated cash value of the office furniture and fixtures.,

Upon the same date, to-wit, May 1st, 1878, Preston Kean and Co. made a report to the Chicago Clearing House' of the condition of their business on the close of business on that date, as follows:

The amount of deposits reported was the same as reported to the assessor.

The amount of bonds and stocks, 5th item, the same.

As to items 1, 2 and 3 in the return to the assessor, they report none on hand, but in their report to the clearing house, they report as to same matters,—

1. Cash on hand, legal tenders, $40,000, national bank notes, $98,181..................... $138,181 00

2. As due from banks and bankers............ 120,151 48

3. As checks for clearings.................... 44,088 81

The return to the collector and that from the clearing house were both made from the same balance sheet. It appears that to the clearing house among the resources they reported:

Bill and notes.............................. $279,917 98

Call loans on cash collaterals.................. 38,901 58

and when they came to make their return- to the assessor, instead of making return of the amount of money in hands of banks and bankers, they took the amount, $120,151.48 and added it to the above items, bill and notes, and call loans', making a total of $438,971.04, which they returned to the assessors as bills receivable, etc., under the 5th item.

Mr. Kean, when on the stand, was asked how it happened that he returned to the clearing house $138,181 cash and $120,151.48 “due from banks and bankers,” and in his return reported to the assessor not one dollar cash on hand, nor a single dollar of funds in the hands of banks and bankers. His answer was, in substance, “that the capital of the firm, $100,000, and the surplus was all invested in government bonds and treasury notes, and the money on hand and the' money in the hands of New York and other bankers, subject to our draft, was the money of our depositors and not our own money.” That the firm was advised by their attorney that they could not be made to pay taxes on moneys deposited with them, therefore they made no return of such moneys on hand or with other banks and bankers.

This is the contention of the complainants and raises the question, whether private bankers are required to return such moneys for taxation? Are deposits in the hands of private" bankers taxable to the bankers ?

It will be perceived that the Revenue law, sec. 30, while requiring private bankers to return “the amount of all deposits made with them by other parties” authorizes the amount of such deposits, 7th item, together with accounts payable, 8th item, to be deducted from the 4th item, i. e. bills receivable and other credits. If, however, there are no accounts payable and the only item to be deducted is deposits and the deposits are not all invested in “bills receivable and other credits,” but remain partly in the money deposited by other parties, must such part of the deposits remaining in money be returned by the private banker as money on hand and be taxed to him as such ?

Section 6 of the revenue law requires every person to list, among other things, for taxation, “all moneys deposited by him, subject to his order, check or draft.” Section 25, in the schedule given, there appears “moneys” among articles of property to be listed. By section 27 every person is entitled to have deducted from the gross amount of credits the amount of all bona fide debts owing by such person.

Section 295 defines credits to be “every claim or demand for money, labor * * * due or to become due, not including money on deposit,” and the same section defines “moneys” to be “gold, silver, coin, paper and other currency * * * and every deposit which the person owning * * * is entitled to withdraw in money.”

From these provisions it is clearly the intent of the law maker that the person making the deposit with the private banker shall make return, list for taxation, and pay taxes upon all such moneys so deposited.

Does the law contemplate that the banker with whom the money is deposited shall also pay a tax on the same moneys f If it does, then it is clear that the same thing, the same money, pays taxes twice in the same year. It is double taxation of that money.

As before stated, the general words of section 30 “money on hand” would seem to require the banker to make return of it for taxation. I cannot believe that such was the intention of the law makers. Double taxation is destructive of that principle of equality and uniformity of taxation so imperatively demanded by the constitution and which pervades, or should pervade, all our revenue laws.

Says Justice Cooley: “Where it is once decided that any kind or class of property is liable to be taxed under one provision of the statutes, it has been held to follow, as a legal conclusion, that the legislature could not have intended the same property should be subject to another tax, though there be general words in the law which would seem to imply that it may be taxed a second time. ’ ’

Cooley Tax. 165, 166, citing Savings Bank v. Nashua, 46 N. H. 389; State v. Sterling, 20 Md. 502, and other cases.

In Massachusetts where a provision of the statute required the personal property of manufacturing corporations to be taxed in the town where the main factory was located, and by another provision the owner of every share of the stock of a manufacturing corporation was required to list such share for taxation, it was held that as the shares of stock represented the property of the corporation, the personal property could not be taxed and that taxation must be confined to the shares of the stock. The court held that a construction of the law was not to be adopted which would subject the same property to be taxed twice. In that case a literal rendering of the law would have clearly required the property to be twice taxed, but the court nevertheless so construed the law, in the interest of equality, fairness and right, as to prevent the same property being taxed twice. Salem Iron, etc., Co. v. Danvers, 10 Mass. 514.

I am of the opinion that the requirement of the law that the banker make return of money on hand or in transit must be held to mean money of the banker (other than deposits) on hand. I do not, in making this construction of the law, ignore the decisions which hold that the relation between the banker and depositor is that of debtor and creditor; and that the money, when deposited, becomes the property of the banker and which may be attached or seized for his debts, but in this case the law is so positive in its requirement that the depositor must list and pay taxes on his moneys on deposit, the presumption of law is so strong against an intent to have the same property twice taxed; it would be so manifestly unfair and unjust that it should be twice taxed, it would be so opposed to the requirement of equality and uniformity of taxation, that I feel compelled to the conclusion that such moneys cannot be taxed in the hands of the banker so long as it retains its character of “money on deposit.”

When, however, the banker converts this money into promissory notes, bills receivable or other credits, it no longer remains money on deposit, but becomes taxable to the banker. When so converted it becomes a different species of property from tangible property; it becomes intangible; instead of remaining money on deposit, it becomes “credits.”

In People v. Worthington, 21 Ill. 171, 173, Justice Catón says: “The constitution means as it declares that each shall pay a tax in proportion to the property which he has, whether that property consists in farms or mortgages; of visible substances, or choses in action * * * and it may be true in one sense to say that it is double taxation to tax the horse which is sold and also the note which is given for the purchase money; and so it is to tax the note which is given for $100 borrowed money and also the money which is borrowed. ’ ’

A man’s entire fortune may consist in intangible property or choses in action and the law contemplates its taxation as much as it does that of tangible property. Perfect equality or singleness of taxation* in its strictest sense is an impossibility. All that can be done is to approximate as near as we can to equality of taxation. The entire system or theory of taxation of personal property is extremely vicious and faulty and results in the grossest inequality and injustice.

Of the thirty odd millions.of money on deposit by citizens of Chicago with banks and bankers, I do not believe from all that I can learn, that there is $50,000 of it returned for taxation, and of the entire personal property, including therein taxable choses in action, not to exceed one-tenth pays any tax of any nature or kind.

This case is not a bad illustration as to how a certain kind of personal property escapes taxation. This wealthy and well-known banking firm, handling millions of dollars yearly and undoubtedly earning a handsome annual income for its several members, a firm whose business could not be carried on for a week without police protection; is unwilling to pay as much annual taxes as is paid by every person in the community who owns a homestead exceeding twenty-five hundred dollars in value. This attempt to evade this tax — which is really not one-half what it should have been — cannot be expected to commend itself to a court of conscience, one of whose favorite maxims is that “equality is equity.”

This firm had in the hands of banks, bankers and others, subject to draft on May 1st, 1878, the sum of $120,151.48, which it was clearly their duty to return for taxation. This money, although it may have been placed on deposit with them, had been taken from their vaults, sent to New York and other places and placed in the hands of other bankers. It became in law the money, the property of such other bankers. It could be seized for their debts and on their bankruptcy would become a part of a general fund for their creditors. It is absurd to call it the money of Preston Kean & Co.’s depositors. It it not money on deposit, subject to the order or draft of the persons who made the deposits with Preston Kean & Co.

The supreme court o£ this state in 1867 or 1868, in a case where this hanking house was contesting a tax, decided in substance, that this bank, having kept.its capital sto.ck and surplus invested in government bonds, although they dealt in bonds and the bonds were changing from day to day, in amount and identity, was not liable to taxation on such capital and surplus. The assessor was bound to follow this decision.

If this case goes up, as it probably will, it is to be hoped that the supreme court may consider whether or not the spirit of the law which exempts capital invested in U. S. government securities from taxation,'does not require that such investment should be a permanent investment, made as an investment and not a mere trading and temporary investment, as practiced by this concern.

The question raised as to the jurisdiction of a court of chancery in cases of this nature, is an important one and worthy of notice.

“When a tax is assessed as a personal charge against the party taxed, or against his personal property, it is difficult,’7 says Judge Gooley, “to suggest any ground of equitable jurisdiction. Presumptively the remedy at law is adequate. If the tax is illegal and the party makes payment, he is entitled to recover back the amount. The illegality alone furnishes no ground of equitable interference.” Cooley on Taxation, p. 538.

In the case of a tax against real estate, where the tax may ultimately ripen into a deed, a court of equity takes jurisdiction to prevent or remove a cloud from the title, the prevention and removal of clouds from title to real estate being a recognized subject of jurisdiction of a court of chancery. But where the tax is merely personal, the remedy at law to recover it back adequate, when arises the jurisdiction of equity ? In fact in the later case a party is not injured until he is forced to pay the tax. When he pays the law gives him an ample remedy to recover back his money and interest, and equity should not interfere by injunction and cripple or retard the state in its effort to collect its revenue remedy by restraining the exercise of powers perverted to a fraudulent or oppressive purpose (see Drake v. Phillips, 40 Ill. 388), and jurisdiction has been taken in cases where the tax was purely a personal tax, but in my opinion it is time to call a halt in this matter of judicial interference with the government in the collection of its revenues.

In this case the act of the assessor was a conscientious and just one, and there can be no pretense of any fraud and certainly none that the act of the assessor was oppressive.

Independent of the question of the jurisdiction of a court •of chancery in this class of cases, and independent of the question of the legality of the tax, the complainants cannot have a decree in their favor on the case as made by the proofs.

After the assessor had raised their assessment from $2,500 to $52,500 the complainants applied to the county board for an abatement of the assessment. It is true, as argued by the county attorney, if the assessment that was made is to be treated as an overvaluation of the complainants’ property, the decision of the county board, which was vested with power to review the assessment, would under our decisions be final and conclusive. Courts are not vested with power to make valuations or assessments. This must be done by the town assessors, subject only to review by the town board of equalisation, or the county board, as the ease may be.

This cannot, however, be treated merely as a case of overvaluation of property liable to assessment. The complaint is not that the assessor over-valued the office furniture, but that he included in his assessment property not liable to taxation, and that to the amount of $50,000. This being the contention, it is argued that chancery has jurisdiction. Our supreme court has' decided that chancery has jurisdiction to afford preventive relief by injunction in all cases where property exempt from taxation is attempted to be taxed. And while it is true that when property exempt from taxation is assessed, the owner is not bound to apply to the statutory board — in this case the county board — for relief, but may wait until the attempt is made to collect the tax and then go into chancery for his injunction; yet if he does seek relief from the statutory tribunal and does not obtain it, can the owner afterwards have a standing in a court of equity and obtain the relief which was denied him by the statutory tribunal? I am clearly of the opinion that he can not.

The assessment of taxes is a legislative act. It is for that body to determine the necessity, the policy of a tax and to make necessary rules and regulations for its assessment and collection. It has full power to say what officer, board or tribunal shall review the assessment and decide all questions connected with the making of such assessments. The tribunal or board to which this power was given in this case is the county board.

By section 97 of the revenue law the county board is authorized to hear and determine the complaint of any person “that he is assessed on property claimed to be exempt from taxation.” If the board decides against the complaint, then the person making the complaint has the right to appeal to the state auditor, and by the same section it is made the duty of the state auditor to present the question as to the property being exempt to the supreme court.

After the adverse decision of the county board, the complainants instead of taking their appeal to the state auditor, abandoned the pursuit of the statutory remedy and filed their bill in this court. Having abandoned their right to appeal to the state auditor and thence to the supreme court, the decision of the county board, the statutory tribunal, became final and conclusive. The question became res ad judicata, and beyond the power of this court or any other court to review.

The law does not give the county board exclusive jurisdiction to determine such questions, but does give it jurisdiction to do so, and the complainant having appealed to that jurisdiction was bound by its decision and could only have it reviewed in the manner and by the officer or court named in the statute. He is concluded by the decision of the tribunal to which he elected to make his complaint, and cannot after an adverse decision seek the forum of a court of equity for relief. Weaver v. State, 39 Ala. 535; Commonwealth v. Cary Improvement Co., 98 Mass. 19; Kimber v. Schuylkill County, 20 Pa. St. 366.

For the reasons given, let the injunction be dissolved and the bill be dismissed! at complainant’s costs for the want of equity.


text:
      (Circuit Court of Cook County. In Chancery.)

    Moulton, et al. vs. Perry, et al.
    1. Easements — Creation by Plat. An easement may be created by a plat or subdivision duly acknowledged and recorded expressly or impliedly showing its existence.
    2. Same — Equitable—Subsequent Purchaser’s — Notice. An amenity in favor of each lot bordering on a private park, to' compel other owners to share in the expense of ornamenting the park is in the nature of an equitable easement and is binding on a purchaser of one of the said lots, with notice.
    8. Real Estate — Right of Owner — Placing ¡Restrictions on Land— Province of Equity. The law recognizes the right of an owner of .land to impair its usefulness or to make it tributary to another piece of land and such a servitude when created is en-forcible in equity.
    4. Real Estate — Right of owner to Create Restraints' — Limitation of Right. The only limitation to the right of an owner of realty to put restraints upon the land is that such restraints shall not be contrary to public policy.
    5. Real Estate — Burdens Thereon — Expense of Maintaining Park. The right to have land contribute to the expense of keeping up a private park, which is also for the benefit of the land contributing is not a burden on land against public policy.
    6. Real Estate — Charge on Land — Liability of Purchaser. A purchaser of land charged with its pro rata share of .the expense of maintaining a park does not assume any liability for charges incurred prior to his purchase as such a liability does not pass to subsequent purchasers.
    7. Real Estate — Liability in Nature of a Lien — When not Created. A liability in the nature of a lien, to attach to the land until paid for, must be created by clear and explicit language.

      8. Real Estate — Imposing Obligation on — Necessity- of Notice to Owner. Even though a charge in the nature of a lien could be imposed by a majority of a meeting of owners called for that purpose, in the absence of notice to him, an owner who failed to attend could have no obligation placed on him or his land.
    9. Real Estate — Charge or Obligation to Contribute to Maintenance of Private Park — How Enforced. Any owner of land charged with the expense of contributing to the maintenance of a private park, once a valid assessment for that purpose has been made, must pay his share or he can be barred from the privilege of the park or his land might be sold through a proceeding in equity.
    Bill in equity. Heard before Judge Murray P. Tuley. The facts are stated in the opinion.
   Tuley, J.:—

In the year 1858 Stephen A. Douglass filed for record in Cook county a plat or subdivision of certain land owned by him which is known as the ‘1 Oakenwald Subdivision. ’ ’ In this plat was a piece of land, a cul de sac about 500 feet east and west by 250 feet north and south, fronting on Cottage Grove avenue on the west and the Illinois Central R. R. right-of-way on the east, and having 50-foot lots fronting the same on the north and south sides thereof. This piece of land was designated in the plat as “Groveland Park,” and the space it occupied on the. plat contained these words: “This space is dedicated as a private park by the name of ‘ Groveland Park, ’ the title being vested in the state of Illinois in trust for the use of the owners of lots fronting on the same, and to be used and enjoyed’ by such owners in common as a private park, and for no other purpose whatever, and to be ornamented, regulated and protected in such manner as a majority of such owners shall from time to time prescribe, such owner to share in the control and expense in proportion to - the number of feet he shall own fronting or bounding on said park; and the alleys to be deemed private alleys, subject to like condition and use.”

Through mesne conveyances the property has passed from Douglass and his heirs into the parties to this suit, all the conveyances describing the lots as being in “G-roveland Park” in said subdivision. The park, and roadways in the park to the lots fronting the same, have been improved by the owners of lots fronting on the park, and a considerable amount of money has been expended from time to time in such improvements.

A majority of the owners organized an association with a president, treasurer and other officers and levied or assessed against the lot owners an assessment running from fifty cents to $1.00 a front foot each year. The assessments made in 1875, 6, 7, 8 and 9 were not all paid, the lots of the defendants hereto being the lots for which the assessments, one or more of them, remain unpaid. Some of the defendants have acquired the title after the defaults in payments had been made. It is clear from the plat itself that there is granted by the maker of the plat an easement appurtenant to each of the lots fronting this piece of land, to use the land for egress and ingress to the lots, and for the purposes for which private parks are commonly used.

The difficult question is what easements or rights are granted to each lot owner as to the ornamentation and regulation of the park, and as to the right to compel each of the lots (or the owners thereof) to share in the expense connected therewith. The bill prays that the defendants be decreed to pay to the treasurer of the association the unpaid assessments and in default thereof that their respective lots be sold therefor; that until such payments be made the defendants be restrained the use of the park (except so far as may be necessary for ingress and egress to their lots) and for general relief. Some discussion was had in the very able arguments of counsel as to whether the fee of the park is vested in the state of Illinois by virtue of the plat being acknowledged and recorded under the statute concerning “plats.”

It is in my opinion immaterial where the fee of the land is vested, as the perpetual use of the property as a private park and for access to the lots is reserved as an appurtenant to the lots fronting the same. That an easement in land may be ere-a ted by a plat or subdivision duly acknowledged and recorded, expressly or impliedly showing a right-of-way, a park or other easement, can not be doubted under the authorities cited.

It is admitted that as to the sharing the expense of the ornamentation and control of the park there is no covenant, express or implied, which runs with the land. It is claimed, however, that each lot owner has an easement or a “privilege” or “amenity” in each of the other lots as to the expenses of maintaining this park. If this right which each lot owner has to demand that each of the lot owners shall contribute to the expense of the park, can be called an easement, it is of that class known as equitable easements. It could not be enforced at law, there being neither privity of contract or of estate.

Covenants, agreements and reservations in plats as to not building within a certain npmber of feet of a lot line; that property shall be used for residence purposes only, or prohibiting its use for carrying on noxious or offensive trades and the like, have been held binding in equity as an easement, a privilege or amenity pertaining to one lot as to adjoining or other lots in a subdivision. But these equitable easements or servitudes, it will be noticed upon an examination of the authorities cited, are all of that character which do not constrain or require the owner of the servient estate to act. His burden consists in being restrained from doing something, as, for instance, from building upon a certain part of his land, or in being obliged to suffer something to be done upon his property by another, as to suffer a passage or- right of way. It is not, however, necessary to designate this right either as an “easement,” “privilege” or “amenity, ’1 the only question being, is this a right which the owner of the land had the power to confer upon the owner of each lot as against the owner of every other lot abutting this park.

By reason of the dominion which every owner has over his land, the law recognizes his right to so deal with it as to restrict or restrain its use by his grantees, to impair its usefulness, or to make it tributary to another piece of his own land by imposing a servitude, and where a purchaser of land takes it with notice that his grantor or a person through whom he claims had by agreement, express or implied, impressed upon it a certain servitude or obligation, equity will enforce the servitude or obligation because it would be unconscientious to permit such purchaser to violate or disregard the valid agreements of those through whom he claims and of which he had notice. The only restraint upon the owner in creating such easements, privileges or rights is that they shall not be against public policy, or in restraint of trade. See Whitney v. Union Ry. Co., 11 Gray, 359. This is subject to neither disqualification nor can the right to have land contribute to the expense of keeping up this park, which is a benefit to the land charged as well as to all the other land, be deemed a capricious reservation, limitation or burden on the property, such as we find condemned by some of the courts.

Every purchaser of one of these lots fronting this park must be held to have notice-of this right on the part of the ¿other lot owners to have the lot purchased contribute towards -the expense of this park, as every purchaser claims through dhis plat. It is a document, a link in his chain of title, and .-every purchaser is bound by the recitals contained in a deed or plat which forms a part of his title. He therefore cannot ¿complain of the want of notice, as he has certainly constructive notice. He may also be said to have apparent notice jfrom the situation and condition of the property.

What is the nature of this liability to contribute to the expense of this park? Does a purchaser assume any liability as to past charges or claims for the expense of maintaining this park, or, in other words,, does he take the lot charged with its pro rata of past expenses ? I think not. I am inclined to the opinion that equity — by analogy to the -rules prevailing at law as to the liability on covenants broken, not running or passing with the land so as to make subsequent purchasers liable therefor,- — must hold that this broken obligation or duty to pay its share of the expenses of the park will not follow or pass to the subsequent purchasers of any of these lots.

It is reasonable to suppose that if the distinguished maker of this plat, who at one time was a member of the supreme court of this state, had intended this liability to be in the nature of a lien, to attach to the land until paid, he would have expressed in clear and explicit language such intention. Such a lien must appear by clear and explicit words, it will never be held to arise by inference.

I am of the opinion that the true construction and effect of the words found on the plat is this: that each lot owner has the right, as an appurtenant to his lot, to demand of every other lot owner that he contribute pro rata expenses of' the maintenance of this park; that there was an implied agreement by every person purchasing a lot of Douglass or his heirs, by the acceptance of a deed of a lot in this subdivision, that he would pay his pro rata share of such expenses, and that a court of equity will hold every subsequent purchaser (with notice) to the performance of this agreement or obligation; also that such subsequent purchaser, has cast upon him by reason of being such owner, the obligation or duty to pay such portion of the expenses as may be incurred during the time he remains such owner.

But even if the words as to the expense of ornamenting, etc., of this park found on the plat could be held to create a lien or charge on the respective lots which could only be discharged by payment, this bill could not be maintained. There is no authority for a majority of the owners to form an association or quasi corporation with a president, secretary and other officers, and make the assessments or the acts of this organization binding. A majority in number and in frontage concurring may determine from time to time what improvement shall be made, how it shall be regulated, how protected; if necessary employ a park keeper, etc., but every lot owner must have prior notice of any meeting held for that purpose.

Notice is of the essence of things required to be done in order to impose a liability. It does not appear that all owners were notified as to any meeting which imposed the assessments, and failing in this, there was no liability or obligation fastened upon any lot owner who failed to attend.

I think these lot owners might enclose this park by fence and locked gates, leaving the necessary road so as to admit of access to the lots and make a valid regulation excluding from the privileges of the' park any lot owner who failed to pay his share of the expenses imposed or voted at a meeting to which all lot owners had been notified, and they might force a contribution according to his frontage from any such lot owner by a proceeding in chancery, and upon decree obtained in default of payment sell his land. I can see no other mode of making him share the burden which his position as lot owner casts upon him.

In a ease more nearly similar to this than any that I have discovered in an extensive examination of the authorities, a board of trustees was authorized by special act of parliament to control a terrace walk in which certain lot owners had privileges, and as to the expense of which they were obligated to contribute. See Duncan v. Louch, 14 Law J. p. 184.

It is possible that some similar legislation might be had as to this private park which would remove the difficulties attending its present management. - '

The bill must be dismissed for the want of equity.

        Duncan v. Louch, 6 Q. B. 904, 14 L. J. Q. B. 185, 9 Jur. 346.


text:
      (Circuit Court of Cook County. In Chancery.

    Lefko vs. Lefko
    (November 4, 1904.)
    1. Husband and Wife — Desertion by Wife — What Constitutes. Where the wife orders the husband out of his home this constitutes a desertion by the wife even though in the eye of the law the husband is the master of the home and has a right to continue there against the will of the wife.

      2. Husband and Wife — Desertion as Ground for Divorce. A solitary act of desertion is not ground for divorce. The desertion must be wilful and must continue for two years.
    3. Same — Evidence of Desertion. Where the wife prosecutes the husband for abandonment, this is strong evidence that she did not intend to desert him.
    4. Separate Maintenance — Offer of Husband to Return. Where a wife obtains a decree for separate maintenance upon a bona fide offer of the husband to live with her, the decree becomes null and void.
    Bill for separate maintenance by wife, cross-bill by husband for divorce.
    Gen. No. 247,287.
    Heard before Judge Murray F. Tuley. The facts are stated in the opinion.

      Israel Cowen, solicitor for complainant.

      C. M. Shabad, solicitor for defendant and cross-complainant.
   Tuley, J.:—

This case has taken considerable time to try, and a great deal of the testimony in the case appears to be of very little importance. It is impossible for the court to understand why these parties separated directly after marriage, continuing to live apart, one says by agreement and the other, the wife, denies it, and that after the court had decided that he had abandoned his wife and ordered him to pay her five dollars a week for one year and after he had paid it, conformably to the order of the court, they afterward agreed to live together, and did live together for a period of eighteen months.

So far as the evidence outside of the two parties is concerned, they lived together, probably as happily as ordinary married people do, people who are struggling to get the necessaries of life. Then occurred the separation between them, and upon that separation the charge of desertion is based by the husband in a bill filed in this court in January, 1904, charging wilful desertion by the wife for the period of two years.

The evidence as to many facts, many incidents in this case which rest entirely in the knowledge of the husband and wife, shows that they flatly contradicted each other and one or the other has been guilty of a perversion of the truth; it is impossible to reconcile their testimony, the one with the other, but, admitting that the husband’s side of the ease as presented, — -that the wife ordered him to leave the premises, was a justification for his going away and constituted an act of' desertion on her part — that would be true in the case of a husband ordering his wife out of his home, and I don’t see why it would not be true in a case where the wife ordered the husband out of the home — I don’t recollect any decision to that effect, because, in the eye of the law the husband is the master of the home, it is his home and he has a right to continue there against the will of the wife. Having the legal right is the reason why the law looks upon the act of the wife in leaving such home as being justifiable, but even admitting that was an act of wilful desertion on the part of the wife when she broke up housekeeping and ordered the husband not to come near her, the law does not say that a solitary act of desertion shall constitute a cause of divorce. It must be a wilful desertion and must continue for two years. If merely one act of desertion constituted cause for divorce, I would have very little to do except try divorce cases, because almost every case that come before me there are probably from three to a dozen acts of desertion that occur between the parties before the final one, which culminates in desertion for two years.

Now, the act of desertion here, did it continue and does it continue up to this time ? What does the evidence show ? If I am correct, immediately after the breaking up of the housekeeping in January, 1901, I think the complainant said as early as March or May, — he did not appear to recollect which, —she commenced proceedings against him for desertion for abandonment, that is, desertion on his part of his wife. She commenced as early as May 3rd. That case was heard and dismissed. She persisted, and I think on May 23rd, 1901, commenced a new suit against him for abandonment that met with the same fate. Then the next month, June, 1901, the third, a suit for abandonment that took place after the act of desertion complained of by the husband in January, 1901, had taken place, and that also had the same order of dismissal, bnt finally, in a suit commenced in July, 1901, she obtained a judgment, and there is where the question arises —the court must assume that there was authority in the officer to act, that the laws of the state of New York justified action of that kind. We have a law of that kind. A proceeding was had, he appeared, he was found gpilty of abandonment, and ordered to pay her $2.50 a week, which he paid up to November, 1902, practically the whole year, or very nearly the whole year.

Now, here was a weekly acquiescence in the condemnation of the court that he was guilty of abandoning his wife, and that he was under obligation to support her, and he did support her for a year. That brings us to November, 1902. From November, 1902, to January, 1904, is less than two years, so that the statute as to desertion would have commenced at that period. I do not see how an action for desertion under such circumstances can be maintained by the husband.

The evidence tends to show that notwithstanding the wife participated in this order, that he left the city of New York without her knowledge and came to Chicago; that she had to employ the police to hunt him up and when she found him he was here in Chicago, and she pursues him again, this wife that had deserted him, pursues him again for abandonment of her, his legal wife, here in Chicago.

If that does not show that-so far as the wife was concerned she never had any thought of abandoning him or deserting her husband, I do not know how evidence could be made stronger. I don’t see how there could be stronger evidence that she did not intend to desert him by the occurrences that took place in January, 1901.

She files her cross-bill, in which she claims she is living separate and apart from him without her fault. She also sets up that at the time they did live together that he deserted her in January, 1901, and that while they did live together, that he was cruel to her and specifies three different acts of cruelty. Everything connected with that is specifically denied by the husband, and the evidence in support of it does not properly justify the court in saying that it is sufficiently proven to justify her in living separate and apart from him.

But she has no desire to live separate and apart from him. She brings her bill for separate maintenance, but if she gets her decree for separate maintenance, upon a bona fide offer of the husband to live with her, that decree would be null and void.

I find that she has been living separate and apart from him since January 19, 1901, at least since the commencement of the first suit which showed a desire to live with him as his wife, cohabiting with him, because she sued him for abandonment as early as May, 1902. From that time, I think the evidence shows that he refused to live with her and that she is living separate and apart from him.

Now, is it without her fault ? Has she given him justification? I cannot see that she has, I cannot see the evidence of it. Is it a justification for the husband or is it the fault of the wife that she commences a suit for abandonment against her husband, follows him from month to month? Does it not show that she is only insisting upon her legal right to have him support her? The evidence tends to show that this woman kept her house nicely, she took care of her husband and I cannot see any reason unless there is hidden reason why this man could not live with this woman, unless there is some reason that is not apparent to the court. It looks a little bit to the court, as claimed by the wife, that he used all her money, did not support her and then failed to properly provide for her; even if he could not obtain the money she had a right to legal support. I cannot see that it is her fault that he is living separate and apart from her, and being without her fault, the decree will go for separate maintenance, $2.50 a week.

I will allow you $20 solicitor’s fees, to be paid in sixty days and $10 taxed for depositions.


author: Dunne, J.:—

text:
      (Criminal Court of Cook County.)

    City of Evanston vs. Ben W. Lord
    (March, 1893.)
    1. Municipal Corporation Ordinances Excluding . Bicycles from Sidewalks, Validity of. An ordinance prohibiting bicycle riders from using the sidewalk of a street, or any street within the city limits is within the power of the city council to enact, and is reasonable.

      2. Cities and Villages — Power to Enact Ordinance. It is within the powers given cities and villages by the ninth, fourteenth, sixty-sixth and ninety-second clauses of the powers given by the cities and villages act, for a city to enact an ordinance prohibiting the use of bicycles on its sidewalks.
    3. Ordinance Prohibiting Vehicles on Sidewalk Includes Bicycles. An ordinance prohibiting vehicles on sidewalks includes bicycles as the term “bicycle” is covered by the generic term “vehicle.”
    In the criminal court of Cook county. Action of debt to recover a penalty for a violation of a city ordinance. Heard before Judge Edward P. Dunne, March, 1893.
    The facts are stated in the opinion.
   Dunne, J.:—

This is an action in debt, brought by the city of Evanston against the defendant, to recover from him a penalty of not less than one nor more than ten dollars, for the violation of section 487 of the revised ordinances of the village of Evans-ton, as amended by an ordinance of the village of Evanston, passed October 4th, 1887. Section 487 of said ordinance provides as follows: “No person or persons shall push or back any horse, wagon, cart or other vehicle over any sidewalk, or use, lead, ride, or drive any horse, wagon, sled or sleigh thereon, unless it be in crossing the same to go into a yard or lot where no other suitable crossing or means of access is provided, under the penalty of not less than one dollar nor more than ten dollars for each offense.”

The evidence shows that in violation of said section, the defendant was, on the 11th day of June, 1892, riding a bicycle upon a public sidewalk on Chicago avenue in the city of Evanston, and was not crossing said sidewalk to go into a yard or lot. The defense set up is first, that said ordinance was not properly proved; and secondly, that if proved, it is unreasonable and beyond the power of the village to pass, and therefore void.

The first objection is technical, and was not called to the attention of the court when the ordinances were offered in evidence.

The ordinance provides “That no person or persons shall push or back any horse, wagon, cart or other vehicle over any sidewalk.” I cannot find any definition of the word “bicycle” in Webster, probably because of its recent origin; but a “vehicle” is defined therein as “That in which anything is or may be carried, as a coach, wagon, cart, carriage, or the like —a conveyance. That which is used as the instrument of conveyance or communication.” Webster’s International dictionary defines a velocipede to be “ a. light carriage propelled by the feet;” and a vehicle as “that in or on which any person or thing is or may be carried. ’ ’ The Century dictionary defines “velocipede” as “a light vehicle or carriage with two wheels or three, propelled by the rider;” a bicycle as a “modification of the velocipede” and a vehicle as “toy carriage moving on land — an instrument of conveyance.”

Prom these definitions it appears that a bicycle is a modification of a velocipede and that a velocipede is a vehicle. The generic word vehicle in the ordinance it follows, covers and includes velocipedes and bicycles without specifically mentioning the same.

It has been held judicially in the case of Taylor v. Goodwin, L. R 4 Q. B. Div. 228, that the generic word “carriage” includes a bicycle. In that case defendant, riding a bicycle, was convicted under the statute prohibiting the “furious driving of a carriage.”

The force of this decision is in no way weakened, as claimed by counsel for defendant, by the case of Williams v. Ellis, L. R. 5 Q. B. Div. 175. In this latter case it was contended that a bicycle was liable to pay toll upon a turnpike under a statute fixing tolls “for every * * * coach, sociable-chariot, Berlin, Landau, * * * hearse, litter, or other such carriage.” The use of the language, other such carriage, plainly shows the intent of the act to restrict the collecting of toll from carriages of the description and character of those enumerated; and the court comments in the decision, on the different phraseology of the two statutes; and in no way disaffirms the position taken in the earlier case. In Taylor v. Goodwin, the generic word “carriage” without restriction or limitation is used as in-the ordinance; in the case at bar the word “vehicle” is used; and the decision there rendered is of weight in the determination of the case under consideration.

" In a short treatise in 24 Alb. L. J. 282, it is laid down that “In the absence of any legislative enactment forbidding them, riders of bicycles would seem to have the same right upon highways as those using any other vehicles. This of course would exclude bicycles from sidewalks which is quite necessary,” quoting from Cook on Highways.

Conceding, therefore, that the generic word “vehicle” in the ordinance covers and includes the word “bicycle” the only questions left for determination are: First. Is the ordinance unreasonable? Second. Had the village of Evanston the right to pass the same?

First. As to the question as to the ordinance being reasonable or unreasonable?

The streets of all cities of any size in modern times are laid out by the municipal authorities with provisions and facilities for both foot passengers and vehicles. The center of the street, except in the case of some boulevards, has been invariably reserved for the use of horses and vehicles, and the sides of the street have been set apart for the use of pedestrians. This disposition of the streets has been found not only convenient, but absolutely necessary, and the sides of the streets have been invariably designated as they are in the ordinance in question, as sidewalks; showing plainly that they were intended for the exclusive use and benefit of pedestrians. No reasonable man can question the convenience and necessity of this arrangement.

Such being the fact can it be said to be an unreasonable ordinance which prohibits the use of the sidewalks by wheeled contrivances whose rapidity in these modern times is equal to that of the swiftest horses ?

If an ordinance excluding bicycle and bicycle riders from the portion of the streets intended for the use of pedestrians, is void, because of its unreasonable character, the word sidewalk should be abolished, and the life and limb of pedestrians in any large city would ever be in peril. The city of Evans-ton has a population of fifteen thousand people and' Chicago avenue, upon which the defendant was riding at the time of his arrest, is one of its main thoroughfares. It is certainly within the province of the city council, in the exercise of reasonable discretion, to prohibit bicycle riders from using the ■sidewalk of this street, or any other street within its limits.

Being of the opinion, therefore, that the ordinance is reasonable, let us examine whether or not it was within the power of the board of the village trustees to pass the same. Among the powers given to cities and villages by the act of the Illinois legislature, chapter on cities and villages, revised statutes of Illinois, are the following: 1. Ninth clause, power to “regulate the use of the streets and sidewalks.” 2. Fourteenth clause, power “to. regulate the use of sidewalks.” 3. Sixty-sixth clause, power “to pass and enforce all the necessary police ordinances.” 4. Ninety-second clause, power “to prevent and regulate the rolling of hoops, playing of ball, flying of kites, or any other amusement or practice having a tendency to annoy persons passing in the streets or on the ■sidewalks. ’ ’

It cannot be successfully contended that power was not given to the village of Evanston, under one if not more of these provisions, to pass the ordinance in question. In the opinion of this court ample authority is given by two, if not more, of these powers. The ordinance in question, passed in pursuance of these powers is not ultra vires, but on the contrary is within the powers conferred by the statute, and is valid and binding.


author: Reeves, Circuit Judge:—

text:
      (Circuit Court of McLean County.)

    Hayden, Use, etc. vs. Chicago & Alton Railroad Co
    (February 10, 1880.)
    Gabnishment — Wages Exempt Fbom — Retroactive Effect of Exemption Act. The act in force July 1, 1879, giving fifty dollars exemption to head of family, applies to cases of debts contracted before the act went into force, if the wages were earned, after the act took effect.
    Garnishee summons on judgment. Heard upon trial before Judge Reeves in the circuit court of McLean county,. February term, 1880.
    The facts are stated in the opinion of the court.
   Reeves, Circuit Judge:—

In May, 1879, Hayden became indebted to Hibernian Benevolent Society. In August following the Hibernian Benevolent Society recovered a judgment against Hayden. In November, 1879, Hayden commenced working for C. & A. R. R. Co. In December, 1879, the garnishee summons in this case-was sued out on the judgment and served on the R. R. Co. It answered that it owed Hayden for wages, as a laborer, the sum of $31 and that Hayden was the head of a family, residing with the same, and claimed the same as exempt. It is. contended that Hayden is only entitled to $25 as exempt.

By the amendment to the garnishment act in force July 1, 1879, the wages and services of a laborer, being the head of a family and residing with the same, to an amount not exceeding $50, shall be exempt from garnishment. Previous to this amendment the exemption was only $25 and it is insisted that the exemption in force at the time the debt was contracted must govern and control.

The wages garnisheed in this case were earned in November, 1879. It was admitted on the trial of this case, that Hayden, at the time the debt, upon which the judgment was rendered, was contracted, had no property whatever. The proposition that an exemption in force at the time of the contraction of the debt forms part of the contract and can not be increased as to such contract applies, as it seems to me, only to property and not to such an exemption as is under consideration in this ease. The suggestion also occurs to me that this proposition can only be held to apply to property that the debtor had at the time of the making of the contract, or to property which he afterwards acquired from means or funds which he had at the time of the making of the contract, and would not apply in a case where, at the time the contract was made, the debtor had no property of any kind in possession or expectancy but subsequently should acquire property by his labor and skill.


author: Williams, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)
    People ex rel. Charles H. Reed, State’s Attorney, vs. John G. Grindele, County Clerk, et al.
    (April 26, 1870.)
    1. Equity — Jurisdiction—Prevention of Damage to Public— Proper Party Complainant. Equity has jurisdiction to prevent by injunction, at the suit of the state’s attorney on behalf of the people the delivery by the cleric of the circuit court, of books upon which assessment for the current year is to be made, to rival sets of claimants to the assessor’s offices of Chicago, because of the irreparable damage to the public which would necessarily result therefrom. ,
    ■2. Statutes — Constitutionality—Embracing Two Subjects. A statute does not embrace two subjects simply because one section relates to the manner of levying assessments and the other to the term of office of assessors.
    3. Same — Constitutionality — Changing Tenure of Office. Where there is no constitutional;, provision in' regard to the tenure in office of an officer, the legislature can extend or shorten such tenure as it may see fit.

      Bill for injunction. Heard before' Judge Williams. The facts are stated in the opinion.

      Messrs. Atwood and S. A. Irvin, for complainant.

      Gen. R. W. Smith, for respondents.
   Williams, J.:—

Three bills have been filed in this court by the above-named complainant, acting on behalf of the people of the state against the county clerk, to restrain him from delivering to certain persons, claiming to be assessors of the towns of North, South and West Chicago, the books upon which the assessment of the respective towns are to be made for the current year.

The facts alleged in the bills are substantially the same, so far as they become necessary to the understanding of the questions passed upon in this case. They are as follows: That in November, 1868, certain persons were elected assessors of the towns of North, West and South Chicago, who were duly qualified and entered upon their duties as assessors of each of those towns; that in March, 1869, the legislature of this state passed an act extending the term of said assessors to November, 1870, and making the elections of assessors biennial thereafter, instead of annual, as they had theretofore been; but that, notwithstanding such act of the legislature, an election was in fact had in November, 1869, and Josiah A. Bross, J. B. Murray, and Charles Haussner, were elected assessors, and that the clerk of the county court is now preparing and is about to deliver to each of the parties last-named, as well as to the assessors elected in 1868, books upon which they may severally make the assessments for the current year.

To each of these bills a demurrer has been interposed, and the questions raised and argued are, first, whether these suits can properly be brought by the state’s attorney in the name of the people; and, second, whether the law passed in 1869 is constitutional.

If the people of the state are likely to receive, in consequence of the proposed action of the county clerk, great and irremediable injury; and if, by the action of this court alone, such injury can be prevented, then a court of chancery should interpose for their protection. This is not a question of fees between two rival sets of assessors, but it is a matter in which the interests of the public are vitally involved. The state must be permitted to collect its taxes, and the counties and towns to collect theirs, else the whole machinery of government is impeded in its motion, and at last stops for want of the propelling power. That the issuance of two sets of books to two sets of assessors would interfere with the collection of taxes no one can doubt. The tax-payer could not decide which assessment was valid. Both sets of assessors have the muniments of title to their several offices. Both claim to represent the state in its attempts to collect its revenues. And yet one of the parties so professing to act is not an assessor, recognized by the law, and the other is. The action of the county clerk in thus investing two persons with the muniments of office when only one is entitled to exercise its duties, would not only, therefore, involve a great expense in the preparation of a double set of boobs, but it would give persons an excuse for the non-payment of taxes after they were assessed, and lead to infinite litigation. Under such circumstances there could not fail to be immense loss to the state.

A court of chancery is the only tribunal which can, by its strong arm, effectually and entirely prevent such loss, and the state, represented by its law officer, is the only proper person to invoke the aid of this court, at the present stage of the controversy. At some1 subsequent period, when their rights were about to be prejudiced, tax-payers might apply to this court or the superior court for protection, but now there can be no adequate remedy, except it can be obtained by the people in the manner they have sought to obtain it by their present bills. Kerr et al. v. Trego et al., 47 Pa. St. 292; Doolittle v. Supervisors, etc., 18 N. Y. 155; Seely v. Bishop, 19 Conn. 128; Board of Supervisors, etc., v. Keady, 34 Ill. 293.

I can hardly conceive of a case where the interposition of a court of chancery is more immediately demanded than in the cases now under consideration. That necessity is even greater in a case where the clerk proposes to issue two sets of books to two sets of officers, one of which cannot be authorized by law to act, than if he was about to issue only one set of books, and that to the wrong persons. The uncertainty of the tax-payer would be greater in the former than the latter case. This, then, is clearly a case where a court of equity has not only the right to interfere, but where it becomes its absolute duty to interfere, and decide who are the legal assessors for the respective towns of North, South and West Chicago.

In March, 1869, the legislature passed the following act:

“An act in relation to assessments and assessors in certain towns in Cook county.

“Be it enacted by the people of the state of Illinois in the general assembly:'

“Section 1. That when the assessors of the towns of North, West and South Chicago, in Cook county, shall in each year have completed the assessment of the property in said towns, they shall respectively give notice, by three days’ publication in one of the daily papers of the city of Chicago, that the same is completed, and will be open, at some public place, to be named in said notice, for inspection, correction and revision, for ten days from the first publication of said notice. The present assessors of said towns shall remain in office until November, A. D. 1870, and shall thereafter be elected biennially.

1 ‘ Sec. 2. This act shall be a public act, and shall be in force from and after its passage.”

By that act they not only changed the manner in which the assessors for the respective towns of North, South and West Chicago should give the notices required by law, but they continued the three assessors in office for one year beyond the time for which they were originally elected, and made the elections thereafter biennial instead of being annual as they had been theretofore. It is claimed that this act is unconstitutional for two reasons. First, because it embraces two subjects. Second, because it is virtually an appointment or election by the legislature of an officer within the meaning of the constitution of this state.

But the act does not embrace two subjects in its provisions. It relates only to assessors and assessments, and if this act is void for the reason indicated, so is every act upon the statute book which contains more than one section. O’Leary v. Cook County, 28 Ill. 534.

It was admitted by the counsel for the defendants, upon the arguments of these demurrers, that the legislature might extend the time of an election, and could continue the then incumbents in office until the date of the next general election, but not thereafter.

There is no constitutional provision affecting the tenure of office of assessors, nor even any such office recognized by the constitution. The legislature could, therefore, abolish the office altogether, and cast the duties upon some other officer, or they could extendi or shorten the tenure of office. It has been decided, in very many eases, that, in the absence of any constitutional limitation or restriction, such was the power of the legislature. Taft v. Adams, 3 Gray, 130; Connor v. City N. Y., 2 Sandf. 355; Dartmouth College Case, 4 Wheat. 518, 627; Butler et al. v. Penn., 10 How. 402, 416.

And I know of no ease which holds that a legislature, in case they should deem fit to extend the tenure of an office, should;be limited by the occurrence of a general election.

The legislature could have made the tenure of office originally ten years instead of one for the assessors in this state, and they have the same power to extend the tenure of an existing office. The propriety of exercising such a power in any case may well be doubted, especially in a state where the policy of popular elections is so deeply engrafted upon our whole system of government, but the power and the right of a legislature so to act has been settled too often by the adjudication of courts to be now denied.

It is not the first time that such legislation has been had in this state in extending for the then incumbents the terms’ of their offices, and, though the propriety of such action will always be questioned and generally will be doubted or denied, the unconstitutionality o£ it has never, so far as I know, been announced by any legal tribunal. I hold, therefore, that under the law of March, 1869, the assessors elected in 1868 are assessors da jure as well as da facto, and to them only can the county clerk rightfully deliver the assessors’ books. The demurrers to each of the bills will therefore be overruled.


text:
      (Circuit Court of Cook County. In Chancery.)

    Thomas, et al. vs. Chicago Trust & Savings Bank, D. H. Tolman, et al.
    l; Corporations — Where Same Person is President of Two Corporations — Notice as President of One Chargeable to Other Corporation. Where a person is president of two corporations having dealings with each other, both corporations are chargeable with whatever knowledge such individual receives as president of either corporation.
    2. Collateral Securities — Sale of — When Set Aside. Where a pretended sale is made of collateral securities for the purpose of avoiding the defense of usury, the purchaser of such collateral with notice of the facts stands in the same situation as his vendor and cannot be regarded as a purchaser for value.
    8. Collateral Securities — Sale of Set Aside — Conditions. Where a sale of collaterial securities is set aside because not bona fide the complainant will be required to pay all the loans secured by the collateral with legal interest.

      4. Corporations — Power to Guarantee — Commercial Papers. A corporation is not empowered to guarantee commercial paper of another corporation.
    5. Corporations — Refund of Consideration Paid for Unauthorized Guaranty. Where a corporation guarantees the commercial paper of another corporation and such guaranty is ultra vires, it will be required to account for the consideration received for such guaranty.
    6. Commercial Paper — Rights of Transferee Where Loans Usurious. Where notes are transferred with notice of the fact that the loans evidenced by the notes are usurious, such transferee takes the notes subject to the equities attaching to such notes in the hands of the former holder

      Bill for accounting. Heard before Judge Murray P. Tuley. The facts are stated in the opinion.
   Tuley, J.:—

This is a bill filed by complainants, seeking an accounting as to a large number of usurious transactions between complainants and the defendants, running through a period of five or six years prior to the filing of the bill, and also seeking to set aside an alleged sale of notes, mortgages, etc., amounting to some $30,000 in value, held as collateral security for the usurious loans. It is admitted that usury tainted all the numerous loans, and that the rate of two and one-half per cent, per month was the interest charged up to the year 1888, when the complainants were induced to purchase five shares of stock in the Midland Company, since which time one per cent, a month was paid the Midland Company for its guarantee, and one and one-half per cent, a month to Tolman or to the Trust & Savings Bank upon all loans as interest.

The Midland Company, was orgainzed by D. H. Tolman with a capital of $100,000 for the purpose, first, of enabling Tolman to sell its stock for a profit of fifty thousand dollars; second, to force the customers of the Trust & Savings Bank to buy the stock of the Midland Company in order to obtain accommodations at the Trust & Savings Bank; third, to guarantee the notes of its stockholders and make such stockholders carry each other, and, fourth, under the name of guarantee to cover up a portion of the usurious interest charged by the Trust & Savings Bank. Some of.the witnesses allege that Tolman declared it to be a wheel within a wheel “to enable the bank to beat the usury defense. ’’ • Whatever was the object of Tolman, who was the chief owner of the stock of the Trust & Savings Bank and president of both corporations, I do not see how the court can escape treating them as distinct corporations.

I cannot go into a detailed statement of the many transactions between these parties. It is the old, old story of the usurer and his victim. I can only briefly announce my findings and conclusions.

First. That on the same day and before the filing of this bill, the complainants caused to be made to D-. H. Tolman (who was authorized to receive the same), a tender of the sum of $6,375), which was more than was due from the complainants upon all their indebtedness referred to in the bill.

Second. That on all the loans made and subsequent dealings in connection therewith, the complainants dealt with Tolman as president of the Chicago Trust & Savings Bank, and the bank is estopped to deny that fact so far as complainants’ rights and interests as to the said usury and said securties pledged therefor are concerned.

Third. That as Tolman was president of both the Trust & Savings Bank and the Midland Company, whatever knowledge he had as president of the .one, he had as president of the other, and both institutions are chargeable with whatever knowledge or notice he had as president of éither; also that Tolman himself as an individual is also charged with such knowledge or notice.

Fourth. That the defendant Charles was a mere tool or instrument of Tolman, one of the many “hands” with which Tolman carried on his many usurious operations, and that the pretended sale to Charles of the collaterals within a few minutes after the tender was made was not a sale in good' faith upon either side; that it was only a colorable sale and should not in equity be allowed to prejudice complainants’ rights in such collaterals.

Fifth. That Charles took the collaterals with knowledge that Tolman’s object in making the transfers was to avoid, if possible, the defense of usury, and that Charles took such collaterals with the intent to aid and assist Tolman and the two banks to defeat the complainants in the suit about to be brought to compel an accounting and the surrender of said collaterals.

Sixth. That Charles is not a purchaser for value in good faith and without notice of such collaterals and stands in ho better position than his vendors as to such collaterals; that whatever title he took, if any, in such collaterals, he took subject to the equities between the complainants’ and his, Charles’, assignors.

Seventh. That in equity and good conscience the said col-laterals and each of them, and the proceeds thereof, in the hands of Charles or of the receiver of this court, should be restored to the complainants upon the payment by complainants of all the moneys received upon the loans, discounts (or renewals thereof), for which the said collaterals were respectively pledged, with interest at 6 per cent, per annum on each loan discount or renewal thereof, including in “moneys received” such sums as were paid for expenses or otherwise for complainants’ benefit. The moneys paid to Midland & Co. for guarantees should not be treated as paid for interest, or credited as against guch loan discounts or renewals thereof, except as hereinafter stated in the accounting with the Midland Company.

Eighth. That the Midland Company was not authorized by its charter to guarantee the complainants’ paper and should account to complainants for all moneys paid it for such guarantees. That the Midland Company took the notes that it now holds and which are in judgment, as stated in the bill, with full notice of the usury paid in regard to the loans, discounts (and renewals thereof) for which the samé were given and holds its said judgments and notes subject to all the equities attaching to said notes in the hands of the former holder of said notes. That an account should be taken of the amount due upon said notes respectively, excluding all usury and allowing interest at 6 per cent, per annum upon each loan, discount (or renewal thereof), and said Midland Company should be charged with all sums paid to it for its guarantee on any such loan, discount (or renewal thereof) and in addition, should be charged with all moneys paid it for its guarantee upon any other loan, discount (or renewal thereof) made by said complainants of the other defendants, said Trust & Savings Bank, or said Tolman. That there should be a reference to a master in accordance with the findings now made, and this decree shall be treated as interlocutory and all .other matters be reserved for further decree herein upon the coming in of said master’s report.