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    William M. Chambers v. The People ex rel. H. H. Fuller, Collector.

      Filed at Springfield

      March 30, 1885.

    1. Taxation—sale of land for taxes—legislative power. Section 4, article 9,- of the State constitution, contains no express grant of power to the legislature to provide for the sale of real estate for taxes, though it clearly recognizes such power, by imposing limitations and restrictions upon its exercise. Viewed merely as a limitation, as it is, there is nothing in it prohibiting the legislature from providing for the sale of real estate for the nonpayment of taxes, interest and penalties, and costs, except that the sale shall be made by a general officer authorized to receive State and county taxes, and not by him except in pursuance of an order of some court of record.

      2. Same—penalty for non-payment of taxes—constitutionality, as respects the rule of uniformity, or the mode of enforcement. The addition of the penalty of ten per cent, as required by section 129 of the Revenue act, prior to July 1, 1879, and twenty-five per cent by that section as amended in 1879, is not in violation of the rule of uniformity required by the constitution in respect to taxes. Nor is such provision obnoxious to the objection that it attempts to confer the power of imposing such penalties, upon the county clerk, without affording the tax debtor an opportunity of being heard by a court. The penalty is imposed by law, and not by the ministerial officer who extends the same upon the tax books, and the tax-payer has the right to contest the legality of the same on application for judgment against his property.
    3. Same—as to the amount of the penalty, before and since the amendment of 1879. By section 129 of the Revenue act, before its amendment in 1879, the county clerk, in making up the amount of the taxes for the current year on real property forfeited to the State, was required to add the amount of the back taxes, interest, penalty and printer’s fees remaining due on such real property, with one year’s interest at ten per cent on the amount of tax due, to the current year’s tax. By the amendment of 1879 the interest on the back taxes was changed to twenty-five per cent on all taxes levied and forfeited after the amendment took effect. As to taxes not both levied and forfeited after that time, the penalty of ten per cent was still to apply.
    4. Same — to what the penalty may be applied. That section of the Revenue act does not authorize the addition of the ten or twenty-five per cent on the amount of the costs, interest or penalty accumulated in prior years. The addition of the penalty or per cent is limited to the back taxes on forfeited real estate, and can not lawfully be computed on prior penalties, or interest, or costs.
    5. Same—to what taxes the twenty-five per cent penalty may apply. The twenty-five per cent penalty under the amendment of 1879, applies only to taxes levied and forfeited after the first day of July, 1879, and is not properly chargeable to the State tax of that year which was both levied and forfeited before the amendment took effect; hut it is otherwise in respect to the county tax, which could not be levied until after that time. So the road, school and municipal taxes* of 1879 may all he levied before or after that time.
    6. Same—the one per cent per month penalty after the first of May, as a cumulative penalty. Section 127 of the Revenue act, imposing one per cent per month on all delinquent and unpaid taxes after the first day of May in each year, is cumulative to the twenty-five per cent penalty imposed by section 129 as amendecl in 1879, and applied to the taxes of 1880 and 1881.
    7. Same—printer’s fees—of the amount chargeable. The law does not authorize more than ten cents to be charged in each year’s tax against town or city lots, as printer’s fees.
    8. Same—error in extending costs, etc.—effect on the validity of the judgment for taxes. A judgment against lots for a sum not exceeding the proper amount authorized by law, will not be reversed because of an error of the county clerk in extending too great a sum for printer’s fees, and interest on interest, and costs. His mistakes in this respect will not be allowed to affect injuriously the public interests.
    9. Same— bach taxes—requisites of the collector’s report. The statute does not require that the collector’s return or delinquent list shall show the years for which the back taxes are due. The requirement of section 188 of the Revenue law that the list shall show the year or years for which the taxes or assessments are due, and the valuation of the property, has reference only to the current year’s taxes. The proceeding for the collection of back taxes is to be found in sections 129 and 229, which do not require a statement of the years for which they are due.
    10. Same—back taxes—of the mode of collection. The payment of the current year’s taxes will not defeat an application for judgment against lands or lots for the back taxes due thereon, and the penalties, interest and costs.
    11. Same—purchaser at judicial sale—liability for taxes. A purchaser of town lots under a decree in a proceeding for partition, ordering their appraisal and sale, subject to taxes due thereon, does not become personally liable for such taxes. He will stand in the same position as any other grantee whose deed is made subject to an existing incumbrance. If he assumes to discharge the same by retaining a sufficient amount of the purchase money for that purpose, he becomes personally responsible to the holder of the incumbrance.
    12. Amendment of statutes—of the constitutional mode. Section 13, article 4, of the State constitution, which provides “that no law shall be revived or amended by reference to the title only, but the law revived or the section amended shall be inserted in the new act, ” is fully met and complied with where the amended section is set out in full, as amended. It is not necessary to set out in full the original section in the amending act.
    Appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.
    At the May term, 1883, of the county court of Coles county, the collector of said county made application for judgment against lots 1, 16, 17 and 18, in block 1, original town of Charleston, for the delinquent taxes for the years 1871 to 1881, inclusive, the current taxes for the year 1882 having been paid, which application was allowed. The following is a copy of the transcript of the delinquent list, and the judgment entered thereon:

    The application for judgment was resisted by W. M. who had recently purchased the property at a partition sale. There were altogether seventeen written objections interposed by him, none of which were deemed and judgments were ’ J 6 thereupon entered against the ., . , „ ,, said lots for the respective amounts above shown. By bis appeal, Chambers brings the case to this court for review.
    For the purpose of the present appeal it is stipulated that lots 1, 16, 17 ana 18, block 1, original town of Charleston, Coles county, Illinois, were to the State of 1111- . , n , - . . _ _ nois, at the tax sale of 1872, for non-payment of the said ^ J taxes due thereon for the year ^ 1871; that the said lots were y in like manner forfeited each succeeding year, up to and including the year 1882, for the non-payment of taxes, interest and costs of the year 1871 and all the succeeding years, up to the time of each forfeiture. It was also stipulated that the taxes which were extended against each of the said lots for each of the said years, respectively, were as follows:

    That the amounts for which each of said lots were forfeited, for each of said years, were as follows:

    That the costs against each of said lots, in 1872, were fifty cents, and in each subsequent year were fifty-one cents, and those amounts were added each year, and included in the amount for which each lot was forfeited, so that each forfeiture included the costs of all preceding years, as well as of the year in which the forfeiture occurred; that each of the amounts contained in the above table includes the amount of all costs which had accumulated against each lot, respectively, from 1872 up to the time of the forfeiture, which amount was, in the case of each lot, as follows: 1872, fifty cents; 1873, $1.01; 1874, $1.52; 1875, $2.03; 1876, $2.54; 1877, $3.05; 1878, $3.56 ; 1879, $4.07; 1880, $4.58; 1881, $5.09; 1882, $5.60; that the residue of the amount of the forfeiture of each lot for each year, was tax and interest, or penalty; that the tax judgment, sale, redemption and forfeiture record of 1881 shows as follows, in regard to the back taxes on said lots, viz:

    That the tax judgment, sale, redemption and forfeiture record of 1882 shows as follows, in regard to the back taxes on said lots, viz:

    That the objector, W. M. Chambers, Jr., paid the taxes of the year 1882 on said lots before application was made for judgment, which payment was received and receipted for by the collector, leaving the taxes of the previous years unpaid.
    Messrs. Fryer, Cunningham & Stoddert, for the appellant :
    Section 9, article 4, of the constitution, only authorizes the legislature to provide for the sale of land for the non-payment of taxes and special assessments,—not for penalties and interest. The legislative power, however broad, does not go beyond the right to levy taxes for public purposes. Cooley on Taxation, 42.
    When does the penalty fixed by the statute become a part of the tax ? If the tax is paid, how is the penalty to be collected? Not as taxes, for penalties are not taxes.
    Section 11, article 2, of the constitution, requires all penalties to be proportionate to the nature of the offence. A failure to pay taxes may be declared an offence, and punished, but the legislature can not authorize the sale of land to pay the penalty of the offence. Before conviction of an offence, a party has a right to a trial by jury.
    The addition of ten and twenty-five per cent is highly penal, and the statute imposing tie same does not apply retrospectively. People v. Peacock, 98 Ill. 172.
    In Scammon v. Chicago, 44 Ill. 279, the court held that the addition of five per cent for delinquency in payment of special assessments, was void, and that case denies the right of the legislature to empower a ministerial officer to impose penalties.
    The amendment of 1879, of section 129, was not made in conformity with section 11, article 4, of the constitution. That requires the section attempted to be amended to be set out in the new act, which was not done. There is a marked difference between the words “amended” and “as amended.”
    The statute, if valid, authorized the clerk to add ten per cent on the amount of back tax due' each year,—not on the taxes, interest and costs, as was-done in this case. The record shows that fifty cents for 1872, and fifty-one cents for each subsequent year, was added as costs for printer’s fees,. while the statute allows only ten cents. Rev. Stat. chap. 53, sec. 22.
    The collector’s delinquent list does not show the back taxes forfeited each year, but simply the aggregate of back taxes, interest and costs. ' Section 188 of the Bevenue law requires the return to show the year or years for which, such taxes were due. Mann v. People, 102 Ill. 346.

      The court could not render a judgment in this case, for the reason no judgment was asked for the current year. Judgment can not be rendered for back taxes separate from the tax of the current year. Eevenue law, see. 129; Stamposki v. Stanley, 109 Ill. 210.
    Appellant, by his purchase under the decree, did not personally assume the payment of the taxes charged against the lots. He simply took subject to whatever taxes were a legal charge on the property.
    Mr. S. M. Leitch, and Messrs. Dunn & Connolly, for the appellee:
    The burden of proof rests upon the party resisting the application for judgment. Rev. Stat. 1874, chap. 120, sec. 191; Durham v. People, 67 Ill. 416 ; Chiniquy v. People, 78 id. 570; Mix v. People, 86 id. 312.
    The statute does not require the collector’s return to show the several amounts of the back tax for the different years, or the valuation for each year. Law v. People, 84 Ill. 142; Pike v. People, id. 80.
    The judgment was not rendered for too great a sum, being for less than that asked for. The mistake of the clerk in his erroneous additions of penalties can not defeat the taxes and penalties legally authorized. Whatever improper interest and costs have been charged by the clerk, the record shows the judgment was for less than that shown to be actually due on each lot.
    The statute requires the clerk to add the back tax to the tax of the current year, and it is a part of the aggregate amount so added together, and a payment of a part of it does not discharge the whole of such aggregate amount.
    Appellant, by his purchase of these lots .subjéct to the taxes due thereon, as found by the decree under which he claims, is in no position to dispute these taxes. By his purchase he has received property he has not paid for, to the extent of these taxes. Insurance Co. v. Littlefield, 67 Ill. 368; Pinckard v. Milmine, 76 id. 453; Byrne v. Morehouse, 22 id. 603; Valentine v. fish, 45 id. 462; Henderson v. Bellew, id. 322; Pike v. Crist, 62 id. 464.
    Seasonable penalties for delay in paying taxes, where the tax-payer may be heard to contest his delinquency before judgment, may be provided, and enforced by sale of his land. Cooley on Taxation, 313; Bristol v. Chicago, 22 Ill. 587; People v. Peacock, 98 id. 172; Scammon v. Chicago, 44 id. 278.
    Section 129 was properly amended in 1879. Appellant’s view would render invalid nearly all the amendments of the statute since the new constitution was adopted.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This case is now before us on a rehearing, allowed upon-the petition of appellee, which opens up all questions for reconsideration that properly arise upon the record, or that were discussed by counsel or passed upon by the court at the former hearing.

The judgment sought to be reversed is assailed by appellant’s counsel on numerous grounds. All the positions assumed by them which are deemed of sufficient importance to notice, are fully met by the opinion filed in the case upon the former hearing, which opinion, with a slight modification, we entirely approve, saving an error of fact, hereafter to be noted, which is of so serious a character as to require a change in the final result. Such being the case, it will be sufficient for the present purpose to briefly summarize the points made and decided upon the former hearing, referring counsel to the opinion then filed for a more elaborate discussion of the grounds upon which the decision is placed.

First—It is contended the legislature has no power to provide for the sale of land in a summary way for the nonpayment of interest on forfeited or back taxes, or for a penalty imposed for the non-payment of taxes,—that it has power to provide for the sale of land for taxes, only. Section 4, article 9, of the present constitution, is referred to as sustaining this position. There is nothing in the section mentioned, as we conceive, that is inconsistent with the right of the legislature to authorize the sale of delinquent lands for such interest and penalties in connection with the taxes due thereon. The right to levy and collect taxes to defray the legitimate expenses of government is inherent, and it is erroneous to suppose that the section of the constitution in question confers this right. It is a mere limitation upon the taxing power, and considering it in that light, it is very clear there is nothing in it prohibiting the enactment of such a law.

Second—It is claimed the legislature has no constitutional power to authorize a mere ministerial officer to impose a fine or penalty upon the delinquent tax-payer. That is certainly' true, but we fail to perceive the application of that principle to a tax proceeding properly conducted under the statute. In that, as in all other cases, the law itself imposes the penalty, but before it can be enforced against a particular individual there must be a judicial inquiry, and the supposed delinquent must have an opportunity to be heard after notice, either actual or constructive. It is hardly necessary to say this is clearly and amply provided for in a proceeding to obtain judgment against lands for delinquent taxes. AVhen application is made for judgment in such cases, unless notice has been given to the owner in the manner required by law no steps can be taken in the ease until the law has been complied with in that respect, after which, if the owner has any defence, he must, as in any other case, appear and present it, otherwise judgment will, of course, go against him. This is all that is of it. There is manifestly nothing in the point. Smith v. The People, 94 Ill. 229.

Third—It is also contended that the amendment of the 129th section of the act of 1872, by the act of 1879, is invalid, because the amendatory act does not set out in full the section proposed to be amended, the claim being that an amendment thus made is in conflict with section 13, article 4, of the constitution, which provides “that no law shall be revived or amended by reference to the title only, but the law revived or the section amended shall be inserted in the new act. ” We understand the requirement of this . provision of the constitution is fully met if the amended section is set out in full, as amended. This was done. It follows, therefore, the .amendment in question is constitutional and valid. Section 129, as amended by the act of 1879, is as follows: “In all cases where any real property has heretofore been, or may hereafter be, forfeited to the State for taxes, it shall be the duty of the clerk, when he is making up the amount of tax due on such real property for the current year, to add the amount of back tax, interest, penalty and printer’s fees remaining due on such real property, with one year’s interest, at ten per cent, on all taxes heretofore forfeited, and twenty-five per cent on all taxes hereafter levied and forfeited on the amount of tax due, to the tax of the current year, and the aggregate amount, so added together, shall be collected in like manner as the tax on other real property for that year may be collected: Provided, that the county clerk shall first carefully examine said list, and strike out therefrom all errors, and otherwise make such corrections as may be necessary with respect to such property or tax. ” By this section, before thus amended, the clerk, in making up the amount of taxes due for the current year on real property forfeited to the State, was required “to add the amount of back tax, interest, penalty and printer’s fees remaining due on such real property, with one year’s interest, at ten per cent, on the amount of tax due, to the tax of the current year. ” By carefully comparing the original with the amended section, it will be seen the only effect of the amendment was to change the amount of interest from ten per cent to twenty-five percent on all taxes levied and forfeited after the amendment went into operation. As to forfeited taxes which were not both levied and forfeited after that time,' the penalty of ten per cent was still to apply. In respect to the taxes of 1879, it was assumed, and so stated on the former consideration of this case, that the twenty-five per cent penalty could not properly be applied to the taxes for 1879, for the reason they could not have been both levied and forfeited after the first of July of that year, when the act took effect. This statement was inadvertently made, and is accurate only as to the State taxes. As to county taxes, they can not be lawfully levied until in September. (See Rev. Stat. chap. 120, sec. 121.) So, also, as to road, school and municipal taxes, they may all be levied after the first of July, though they might lawfully be levied before that time. See Rev. Stat. sec. 119, chap. 121, sec. 44, chap. 122, and sec. 111, chap. 24.

The chief trouble in this case, and that which, on the former hearing, led to a misapprehension as to what was included in the judgment, results from the fact that the clerk, in making up the amount of taxes from year to year, erroneously added interest on the interest and costs embraced in former forfeitures, and also erroneously included in each of these computations fifty-one cents costs, whereas the law allowed but ten; and if the judgment had been rendered, as was assumed before, for the full amount of these estimates, as is shown by the tax books, as well as by the delinquent list itself, the judgment would clearly have been erroneous, as before stated. But upon an examination of the judgment itself, we find that it is much less than the amount for which judgment was demanded by the collector, as shown by the delinquent list and tax books. Thus, the amount of taxes charged against these lots, as shown by the delinquent* list, and for which judgment was asked, is as follows: Against lot 1, $168.59; against lot 16, $126.60; against lot 17," $1026.52, and against lot 18, $202.80; whereas, the actual judgments rendered against said lots are, respectively, for $148.79, $106.87, $871.54, and $172.92, besides twenty-three cents costs in each case, making a difference in the aggregate of $224.39. This difference will be found by actual calculation, when the various sections of the statute relating to the subject are given their proper effect, to more than cover the improper items above mentioned, which were included by the clerk in his annual computations of the amount of taxes, interest, etc., due on the lots. This, indeed, does not seem to be seriously questioned by appellant in his final argument,—at least he does not give, or even suggest, any mode of computation, based upon the sections of the statute relating to the subject, by which it will appear the judgments against these lots are for too much; but the claim rather is, as we understand counsel, that inasmuch as the record is conceded to show that the clerk, from year to year, included improper items in his computations, any judgment founded upon such a record, although confessedly for no more than is justly due, will be invalid. We can not concur in this view. To so hold would be saying, in effect, that the taxes, interest and costs properly chargeable against these lots can not be enforced against them at all. Surely, the mere mistakes of the clerk ought not to be visited with consequences so serious, especially as they affect public interests only.

We have not deemed- it necessary or proper to set out the computation by which the conclusion -now reached is verified, but the facts are all stated, which will enable any one who desires, to test its correctness for himself. We will simply add, in this connection, for the benefit of those who desire to do so, that in making such computation it is not only necessary to keep in view section 129 of the Revenue act, both before and after its amendment in 1879, but also section 177 of the same act. This section is cumulative, and is applicable to the taxes for 1880 and 1881. It provides: “All real estate upon which taxes remain due and unpaid on the 10th day of March, annually, or at the time the town or district collector makes return of his books to the county collector, shall be deemed delinquent, and all such due and unpaid taxes shall bear interest after the first day of May, at the rate of one per cent a month, ” etc. In applying the amendatory act of 1879, if necessary to sustain the judgment, it will be presumed that all the taxes of that year, except the State taxes, were levied after the first of July, when that act took effect.

Upon the facts, as we now understand them, we are satisfied the judgment of the court below is right, and it will therefore be affirmed.

Judgment affirmed.

The following is the opinion, as prepared by Mr. Justice Dickey, which was rendered on the original hearing of this case, and to which reference is made in the foregoing opinion of the court:

■ Mr. Justice Dickey : It is first insisted that the legislature has no power to provide for the sale of land for the non-payment of interest or penalties upon taxes levied thereon, and section 4, of article 9, of the State constitution, is referred to as sustaining this position. That section declares that “the General Assémbly shall provide, in all* cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer of the county having authority to receive State and county taxes, and there shall be no sale of said real estate for any of said taxes or assessments but by said officer, upon the order of some court of record. ” This section of the constitution contains no express grant of power to the General Assembly, and yet it • clearly recognizes a power in that body to provide for the sale of real estate for taxes. Instead of a grant of power, it is rather a limitation or restriction upon the exercise of such power, and is intended for the regulation of such sales hy a uniform rule or method of procedure. Without this section, the power of the legislature in respect to providing for the sale of land for taxes and special assessments, and the mode to be pursued in making sales, would have been plenary. With it, such a sale must be made by a general officer authorized to receive State and county taxes, and not by him except in pursuance of an order of some court of record. The law is well settled that the legislative power of a State is unlimited, except by the State and Federal constitutions. Our State constitution grants all legislative power to the General Assembly, subject, only, to the restrictions contained therein, and in the constitution of the United States. The General Assembly having power to provide for the levy and collection of taxes for the various purposes named in the constitution, it has the power, as a necessary incident, to adopt any and all proper means adequate to accomplish the principal thing, subject, only; to constitutional restrictions. It might with equal propriety be claimed that the costs incurred should not be included in a judgment against land for taxes.

Reference is made to Scammon et al. v. City of Chicago, 44 Ill. 269, as holding that the imposition of a penalty of five per cent against a tax-payer for not paying by a day named, was in violation of the constitutional provision requiring taxes to be uniform, and that the power to impose or add a penalty can not be conferred on a ministerial officer without the taxpayer having an opportunity to be heard. The addition of the penalty of ten per cent and twenty-five per cent, as required by section 129 of the Revenue act, does not violate the rule of uniformity required by the constitution. The provision of the statute is not partial in its operation, but applies to all tax-payers alike, who may suffer their taxes to remain unpaid until their property is forfeited to the State. In the case just referred to, this court, on a rehearing, said: “That the legislature may authorize the courts to impose and render a judgment for such a penalty, we have no doubt; but we do not believe that such a power can be conferred upon a mére ministerial officer, without any opportunity to be heard by the tax-payer. ” The statute here governing (Eevenue act, see. 129,) does not attempt to confer power on the county clerk to determine whether a party has incurred the penalty therein provided, but it, in effect, itself imposes the same. If any question arises as to whether a party has incurred the penalty, he has an opportunity to be heard by the court, on application for judgment, and have the matter adjudicated. In adding such penalty the clerk does not impose the same, any more than he does the back tax or costs. In the case of People v. Smith, 94 Ill. 229, the court say: “The addition which the clerk was required to make to the back tax, seems to have been required as a penalty upon the owner of the land for a failure to pay the taxes due, at the proper time, and we perceive no reason why it should not be imposed. Suppose the legislature had provided that when the tax due upon a tract of land was not paid, and the land was forfeited to the State, the clerk, in extending the taxes for a subsequent year, should add fifty per cent to the back taxes as a penalty upon the owner for a failure to pay his taxes when due. No reason is perceived why a provision of this character might not be enforced. If it could, upon the same principle and for a like reason the clerk could, under section 129, add to the back taxes ten per cent interest for one year, and a printer’s fee, as a penalty. ”

It is next insisted that section 129 of the Eevenue act of 1872 was not amended in 1879 in the manner required by section 11, article 4, of the constitution, which provides, “that no law shall be revived or amended by reference to its title only, but the law revived or the section amended shall be inserted at length in the new act.” The section, as amended, was inserted in full in the amendatory act of 1879, but it is claimed that this is not a compliance with the constitutional provision, and that it requires the original section to be set out in full in the amending act. We can not give our assent to this view. To do so would be to hold many important amendments of preexisting statutes as void, and it would be difficult to calculate the disastrous consequences of such a holding. Both the legislative and executive departments of the State government have given this constitutional provision a more reasonable construction. There seems to be no difference between the words, “the section amended, ” and “the section as amended. ” The object of the provision was to give members of the General Assembly a better opportunity to inform themselves of the scope and effect of the proposed amendment, and see the bearing the change would have upon the meaning of the section, taken as a whole, and know more readily the meaning of the section after its amendment,— and this is accomplished by inserting the entire section as amended. In the case now being considered, the original section required the back tax on lands forfeited to the State, etc., remaining due, with one year’s interest at ten per cent on the amount of tax due, to be added to the tax of the current year. By the amendment this is changed as to all taxes levied and forfeited after July 1, 1879, by increasing the interest to be added to twenty-five per cent. If this amendment had been made by reference to the original section, only, without giving the section as amended, both the old and the new law would have to be examined to know the force and effect of the words added, in the amendment. See Timm v. Harrison, 109 Ill. 597.

Section 129 of the Bevenue law, as amended in 1879, is as follows: “In all cases where any real property has heretofore been, or may hereafter be, forfeited to the State for taxes, it shall be the duty of the clerk, when he is making up the amount of tax due on such real property for the current year, to add the amount of back tax, interest, penalty and printer’s fees remaining due on such real property, with one year’s interest at ten per cent on [all taxes heretofore forfeited, and. twenty-five per cent on all taxes hereafter levied and forfeited, on] the amount of tax due, to the tax of the current year; and the aggregate amount-so added together shall be collected in like manner as the tax on other real property for that year may be collected: Provided, that the county clerk shall first carefully examine said list, and strike out therefrom all errors, and otherwise make such corrections as may be necessary with respect to such property or tax. ” The words in brackets are those added 'by the amendment. This section, as amended, required the county clerk to add ten per cent on the amount of all such back taxes due each year, in ease of a forfeiture of the property before July 1, 1879, and twenty-five per cent on taxes levied and forfeited after that date, to such back taxes, printer’s fees and the current year’s tax, but it did not authorize the addition of such per cents on the amount of the costs, interest or penalties which had accumulated in preceding years. This interest or per cent is “on all taxes heretofore forfeited,” and “on all taxes hereafter levied and -forfeited.” (People ex rel. v. Gale, 93 Ill. 127; People v. Smith, 94 id. 228; Belleville Nail Co. v. People ex rel. 98 id. 399.) In this case it is evident that the clerk, in extending the tax of each current year after 1872, added to the same Ml back taxes, interest and costs included in these forfeitures, and interest not only on taxes for which the land had been forfeited, but also interest on such interest, and-on the costs embraced in such former forfeitures. This was done without authority of the law. Take lot 17, for instance. The tax of 1871 was $51.57, to which was added fifty cents costs, making $52.07, for which sum the lot was forfeited at the tax sale in 1872. In extending the tax for the year 1872, (which was $53.50,) the clerk added $52.07 as forfeited back tax, fifty-one cents printer’s fees, and $5.20 interest, at ten per cent on $52.07, which includes the costs of 1871,—making in all $111.28 total charges for 1872 and the amount of the forfeiture in 1873. To this he added the current tax of 1873, being $47.78, fifty-one cents costs, and $11.12 interest on the whole amount of the forfeiture ($111.28,) including interest on costs, and interest on interest on the tax of 1871, a second time.

It may be observed, in respect to the interest or penalty of twenty-five per cent provided for in the amendment of section 129, (in force July 1, 1879,) that this increaséd interest applies only to taxes after that date levied and forfeited, and not to forfeitures after that date in respect to taxes levied before that amendment took effect. The current tax of the year 1879 could not have been levied and forfeited subsequent to July 1, 1879, and hence the twenty-five per cent could not be added until after the year 1879, and then it can not be computed upon all the back taxes of that and prior years, but only upon such taxes as were levied after July 1, 1879, and in respect of which there has been a forfeiture for nonpayment. The amendment is penal in its character, and the courts should not endeavor to make it more so by any strained or technical construction. The record shows that fifty cents for 1872, and fifty-one cents for each succeeding year, was added to the current and other tax, as printer’s fees. This was not authorized by law, the statute allowing only ten cents printer’s fees for each year. Rev. Stat. chap. 53, sec. 22.

It is also insisted that section 188 of the Revenue act requires the collector’s return or delinquent list to show the year or years for which the back taxes were due, and the amount which was due for each of the several years, from 1871 to 1881, inclusive. That section provides: “The collector shall transcribe into a book prepared for that purpose, and known as ‘the tax judgment, sale, redemption and forfeiture record,’ the list of delinquent lands and lots, which shall be made out in numerical order, and contain all the information necessary to be recorded, at least five days before the commencement of the term at which application for judgment is to be made,—which book shall set- forth the name of the owner, if known; the proper description of the land or lot; the year or years for which the tax or special assessments are due; the valuation on which the tax is extended. ” The requirement that the list shall show the year or years for which the tax or assessments are due, and the valuation of the land or lot, has" reference more directly to the current year’s taxes remaining unpaid, which are demanded for the first, and have no reference to taxes for which lands have been forfeited. To require the same particularity in regard to the back taxes of many years for which the land has been forfeited, would seem to impose an unreasonable, if not an impracticable, labor, without any corresponding advantage. Such a practice would render the collector’s warrant in such cases very complicated and voluminous. By resort to the former records of the judgments under which the forfeitures were had, the tax-payer can find the several valuations, and other details. Having been furnished to him once, the legislature did not consider, it necessary that all these details should be repeated on the record, where the addition of such back taxes is required to be made to the taxes of the current year. No reason is shown why the collector’s report should show the amount of back tax under forfeiture for each of several years, any more than the valuation of each year. Section 182 has no reference to back taxes for which land has been forfeited to the State. The proceeding for the collection of taxes • under forfeitures is prescribed in sections 129 and 229 of the Revenue statute. In neither of these sections is there found any requirement that the years for which such taxes were assessed and levied shall be stated in the return to the court. (Pike v. People, 80 Ill. 82.) Such a statement seems to be wholly unnecessary, as those facts are shown in the record of the judgment under which such lands were forfeited, and the amount and validity there ascertained. If the same are to be challenged, it rests on the objector to show his defence by the production of these former records, and pointing out the alleged defect or vice, if the same does not appear on the face of the collector’s return. In this case the delinquent list filed May 9, 1883, does not show, separately, the back tax of each year for the taxes for which the land .had been forfeited, but gives the aggregate amount of such back tax, interest and costs, from 1871 to 1878, and from 1879 to 1880,—thus, lot 1, 1871-1878, $112.59; 1879-1880, $25.16. This, we think, is sufficient in this regard.

We have been referred to four cases as settling the rule otherwise. They will be found to have no reference to back taxes under forfeitures. In the first, (Pickett v. Hartsock, 15 Ill. 279,) the defect in the report was, that it failed to state for what year the taxes were assessed,—they did not purport to be on forfeitures. In Morgan v. Camp, 16 Ill: 176, the report did not contain the heading required by the statute, and did not show on its face in what county the lands were situated, or the year for which the taxes .were assessed. In Morrill v. Swartz, 39 Ill. 108, the defect in the report was, that it gave the total amount of taxes due, without showing whether they were State or county taxes. To the same effect is the case of Fox v. Turtle, 55 Ill. 377. These cases are not any authority on the question now before us. But we are not wanting in authority upon this point. In Pike et al. v. People ex rel. 84 Ill. 80, it was held that the statute does not require that the collector’s advertisement and application for judgment against lands for back taxes shall state the year for which the lands were forfeited. The case of Mann v. People ex rel. 102 Ill. 346, only holds it error to give judgment against land for back taxes not claimed to be due or reported as unpaid. In that case the report, which was likened to a declaration, showed a delinquency only as to the tax of 1880 and back tax of 1879, “and subsequent years,” and judgment was rendered for the tax of 1880, and back taxes for the years 1875 to 1879, inclusive,—and this was held erroneous, because the judgment related to taxes for years not subsequent to 1879. The question here was not involved.

It is also claimed that no judgment can be rendered against the lots for such back taxes, separate from the taxes of the current year,—that is, without taxes of the current year are embraced in the judgment. This is wholly untenable. If such were the law, the tax debtor might always defeat an application for judgment by paying the taxes of the current year. It is sufficient that such back taxes are added in the warrant to current taxes. The back taxes in this case were extended in 1882, with the taxes of that year, and the appellant paid the taxes of 1882 alone, as he had the right to do. This payment of a part of the taxes then due and extended against his property, did not relieve it from the lien of the remaining charge. The case of Stamposki v. Stanley, 109 Ill. 210, does not sustain appellant’s position. The point in this regard decided in that case was, that two separate judgments could not lawfully be rendered against a single lot,— one for such back taxes, and the other for the current year’s taxes.

Lastly, it is claimed that the appellant is not in a position to question the propriety of the judgment, for the reason that he purchased the lots at a sale made under a decree of court in a partition proceeding. The decree found the amount of the taxes due upon each of the lots, as shown by the collect- or’s books, and ordered an appraisal and sale, subject to the taxes as an incumbrance. There is nothing to show that appellant, in making his purchase, or in any other way, ever assumed or promised to pay the taxes on these lots, or any part thereof. Appellant stands in the same position as any other grantee whose deed is made subject to an existing incumbrance. If he assumes to discharge the same by paying a given amount, as, with a part of the purchase money re-t'ainecl for that purpose, he becomes personally responsible to the holder of the incumbrance; but simply taking a conveyance subject to a prior lien, imposes no personal liability on the grantee to remove the same, but he takes the land subject to the true amount of the incumbrance.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    Edward F. Thomas v. The People of the State of Illinois.

      Filed at Ottawa

      May 15, 1885.

      1. Criminal law—of the indictment—for conspiracy to obtain goods by false pretences. Where the act to be accomplished by a conspiracy is illegal, as, to obtain the goods of another by false pretences, it is not necessary to specify in the indictment the means by which it was intended to be accomplished.
    2. So a count in an indictment that the defendants, on, etc., at, etc., feloniously, fraudulently and deceitfully did conspire and agree together, with the fraudulent and malicious intent then and there, feloniously, wrongfully and wickedly, to obtain one horse, of the value of $75, and describing other property in like manner sought to be obtained, and giving its value, the personal goods and property of K. C., from the said K. C., by false pretences, and to cheat and defraud her, the said K. C., of the same, contrary, etc., is substantially good.
    3. Same—misjoinder of counts. A conspiracy to obtain the goods of another by false pretences being only a misdemeanor, both at common law and by our statute, though punishable by confinement in the penitentiary, an indictment charging such offence in two counts, with a third charging the obtaining of the same goods by false pretences, will not be obnoxious to the objection of a misjoinder of counts.
    4. Same—conspiracy to defraud—negligence of the party conspired against. Where several persons conspire together to obtain the goods of another by false pretences, and obtain such goods upon the false assurance that one of them has a clear title to certain lots which are given in exchange, the fact that the owner of the goods was induced, by his confidence in the false assurances, to forego an examination of the records, which would have shown the defendants had no good title to convey, and was negligent in relying upon the representations made, will not prevent a conviction of the defendants so-conspiring together.
    5. Same—one good count—general motion to quash. A general motion to quash an indictment containing several counts, should be overruled if any count thereof is good.
    6. Same—one good count—general verdict. A verdict finding the defendants guilty of a conspiracy to obtain goods by false pretences, under an indictment containing two counts for such offence, will be sustained if either of the counts is good.
    7. Same—verdict of guilty as to a portion of several counts—effect as to the other counts. Where an indictment contains three counts, two of them charging a conspiracy to obtain goods by false pretences, and the third for obtaining goods by false pretences, a verdict finding the defendants guilty' of the conspiracy to obtain the goods by false pretences, saying nothing as to the third count, is equivalent to a finding of not guilty as to that count.
    8. Same—misdemeanor—measure of punishment allowable. It is competent for the legislature to provide that a misdemeanor may be punished by confinement in the penitentiary.
    Writ of Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This was an indictment found at the March term, 1884, of the Criminal Court of Cook county, against Edward F. Thomas and William G-. Murphy, the first count of which is as follows:
    “The grand jurors chosen, selected and sworn in and for the county of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present, that Edward F. Thomas and William G. Murphy, late of the county of Cook, on the first day of December, in the year of our Lord one thousand eight hundred and eighty-three, in said county of Cook, in the State of Illinois aforesaid, feloniously, fraudulently and deceitfully did conspire and agree together, with the fraudulent and malicious intent then and there, feloniously, wrongfully and wickedly, to obtain one horse, of the value of $75, one wagon, of the value of $25, twenty-five dozen canned goods, of the value of $50, one hundred boxes of soap, of the value of $25, one hundred pounds of soap, of the value of $25, one hundred bars of soap, of the value of $25, one hundred packages of bluing, of the value of $10, one hundred pounds of teas, of the value of $25, three hundred pounds of sugars, of the value of $30, and divers and sundry groceries, dry goods, notions and fixtures contained in her grocery store, situated on Clark street, in the city of Chicago, in said county and State, (a more particular description of which said groceries, dry goods, notions and fixtures is to said grand jurors unknown,) of the value of $580, the personal goods and property of one Kate Carberry, from the said Kate Carberry, by false pretences, and to cheat and defraud her, the said Kate Carberry, of the same, contrary to the statute, and against the peace and dignity of the same People of the State of Illinois.”
    Mr. C. F. Remick, for the plaintiff in error:
    The first count charges an unexecuted conspiracy to obtain goods by “false pretences.” The pretences, the objective point of the conspiracy, the gravamen, are not stated, and hence no venue or scienter thereof is stated. Wharton on Crimes, secs. 2127, 2159.
    The second count attempts to charge the same conspiracy. The third omits any charge of conspiracy.
    The motion to quash should have been sustained, as also the motion in arrest of judgment. Representations, though false, are not within the statute unless calculated to deceive persons of ordinary prudence and discretion. 2 Wharton on Crim. Law, secs. 2129, 2131; Commonwealth v. Haughey, 3 Metc. 224.
    In Commonwealth v. Grady, 13 Bush, 285, the court say: “By a visit to the clerk’s office he could soon have ascertained whether appellee had the unincumbered title to the house and lot, as represented.” Hale v. DeHart, 6 Bax. (Tenn.) 222; 19 Mo. 233; 50 Ind. 477; 76 N. C. 258.

      One not examining records must suffer the consequences’ of his own negligence. Babcock v. Lisk, 57 Ill. 329; Monts v. Hogle, 37 id. 155; People v. Jacobs, 35 Mich. 36.
    It is a well recognized doctrine that counts for misdemeanor and felony can not be joined in the same indictment. Lyons v. People, 68 Ill. 271.
    The first and second counts are attempts under section 46 of the Criminal Code, while the third is under section 96. It is certain that the offence in the third count is simply a-misdemeanor, and not a felony. Crim. Code, secs. 277, 278.
    Mr. Julius S. Grinnell, State’s Attorney, and Mr. John Gibbons, for the People:
    As to the law bearing upon the evidence to show a conspiracy, see 3 Greenleaf on Evidence, sec. 93; Wharton on, Crim. Law, sec. 1398 ; Commonwealth v. McClean, 2 Pars. 363 ; State v. Stroting, 34 Iowa, 443; Cowen v. People, 14 Ill. 348.
    Courts will not sustain a motion to quash an indictment containing several counts, if either count is sufficient to sustain a conviction.
    As to compelling an election as to which count the prosecutor will proceed under, see Goodhue v. People, 94 Ill. 61.
    Counts for felony and misdemeanor may, under some circumstances, be properly joined. 1 Bishop on Crim. Proc. sec. 199.
    When several counts are employed to meet the evidence as it may transpire on the trial, all the counts being for the same offence, it is always allowed. Commonwealth v. McLaughlin, 12 Cush. 612; State v. Sutton, 4 Gill, 494; Burke v. State, 2 Har. & J. 426; State v. Posey, 7 Rich. 484.
    Conspiracy is a misdemeanor, even in those eases where its object is the commission of a felony. 2 Bishop on Crim. Law, 231.
    The extent of the punishment for misdemeanor does not make it a felony, provided the imprisonment is for a stated number of years, not for life. State v. Danfort, 3 Conn. 112; State v. Murphy, 6 Ala. 765; State v. Noyes, 25 Vt. 415; Regina v. Button, 11 Q. B. 929; People r. Mather, 4 Wend. 229; Respublicæ v. Delongchamps, 1 Dall. 111.
    Mrs. Carberry was not bound to examine the record. The gravamen in this case is the unlawful combination. Parties have the right and are justified in relying upon statements made to them in the ordinary business transactions of life. They are not bound to assume that every man is a cheat, a swindler, a liar and a fraud.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Edward E. Thomas and William G-. Murphy were convicted, in the Criminal Court of Cook county, of a conspiracy to obtain goods by false pretences from one Kate Carberry, by the verdict of a jury, and, thereby, punishment of the former was fixed at confinement in the.penitentiary for the term of three years, and that of the latter at paying a fine of $300. The court overruled a motion for a new trial, and gave judgment upon this verdict. This writ of error is prosecuted by Thomas alone.

Several grounds are urged upon which we are asked to reverse this judgment, and such of them as we deem material shall be briefly considered.

First—It is contended the court erred in overruling the motion to quash the indictment. Since the motion was general to the entire indictment, it was properly overruled if either count was good; and since the verdict expressly finds the defendants guilty of a conspiracy to obtain goods by false pretences, saying nothing as to the third count, which is for obtaining goods by false pretences, simply, this is equivalent to a finding of not guilty under that count. (Stoltz v. People, 4 Scam. 169 ; Chambers v. People, id. 356.) And, therefore, if either of the counts for conspiracy be. good, it will sustain the verdict. (Lyons v. People, 68 Ill. 276, and cases cited.) ■The first count, under the ruling in this State, whatever may be decided elsewhere, is clearly good. To obtain goods by false pretences is, to every apprehension, an illegal act; and the rule here is,' where the act to be accomplished by the conspiracy is illegal, it is unnecessary to specify the means by which it was intended to be accomplished. (Johnson v. People, 22 Ill. 314; Smith v. People, 25 id. 17; Cowen v. People, 14 id. 348.) The first count in the present indictment is, in substance, identical with the count in Johnson v. People, supra, and which is there held to be good. And in Cole v. People, 84 Ill. 216, (a case in the decision of which Mr. Justice Dickey and the writer of this opinion did not then and do not now concur,) the court went still farther, and held, where the act to be accomplished was not in itself illegal, but the conspiracy was to accomplish it by illegal means, the illegal means need not be set out, but that the . offence, only, need be set out in the terms and language of the Criminal Code, or so plainly that the nature of the offence may be easily understood.

Second—A motion in arrest of judgment was made, and overruled, and it is contended this was error, because, first, if the offence of which the defendants were convicted was felony, then the third count, which was only for a misdemeanor,— that of obtaining goods by false pretences,—was improperly joined; and second, if the offence of which they were convicted ' was not felony, then the punishment imposed was improper. Without at all conceding that a count for a misdemeanor can under no circumstances be joined with a count for felony, it is sufficient for the present to observe the offence of which the defendants were convicted was not felony at common law, (2 Bishop on Crim. Law, 4th ed. see. 231,) and it is not made felony by our statute, and so is necessarily a misdemeanor. (Lamkin et al. v. People, 94 Ill. 501.) All the counts being for misdemeanors, (and that, too, manifestly, for the same misdemeanor, stated in different ways,) there was, even on the theory of the counsel for plaintiff in error, no misjoinder. The offence being a misdemeanor only, why the punishment imposed was improper, we can not divine. It was certainly competent for the legislature to provide that a misdemeanor might be punished by confinement in the penitentiary. It was so provided in the statute, and this verdict is within the meaning and intent of that statute.

Third—We are unable to say that the evidence does not sustain the Verdict. The prosecutrix, Mrs. Carberry, had a small stock of family groceries, which she advertised to sell or trade. The defendant Thomas responded. He was aided by the defendant Murphy, in obtaining her confidence, and in consummating the scheme by which possession was got of her goods. Thomas professed to own certain city lots, and these she agreed to take for her goods. He represented his title to be good, and the property to be clear of incumbrances. By these means he got possession of her goods. He neither owned the lots, nor was able to procure a deed conveying the legal title to them, to her,—and this want of title and inability the defendants knew when the pretended trade was made. The only question raised upon the facts, demanding attention, is, whether the negligence of the prosecutrix in not having the records examined in respect of the title, can be urged as a defence. We think it does not lie in the mouths of these defendants to say, that because, by their'artifice, they inspired an unmerited confidence, they are guiltless. The offence is the combination to obtain property by false pretences; and the very object might be, and often is, to so influence the party as to prevent the accuracy of the pretences being tested. Whether one owns property, is a fact. The truth in regard to it might, undoubtedly, be disclosed by the record, but it might equally be disclosed by the declarations of the party; and the most dangerous artifice, and that against which it is most important the law should protect simple-minded and credulous people, is that whereby they are induced to forego all investigation, and trust implicitly to the trickster. 2 Wharton on Crim. Law, (7th ed.) sec. 2128; Cowen et al. v. People, 14 Ill. 348 ; State v. Munday, 78 N. C. 460; State v. Dow, 33 Maine, 498.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Patrick Flaherty v. Leander J. McCormick et al.

      Filed at Ottawa

      March 27, 1885.

    1. Trial by jury—constitutional right—as to cases in chancery—in partition. The provision in the constitution preserving the right to trial by jury, has no reference to cases in which courts of equity have jurisdiction. The right to such trial is confined to cases at law.
    2. A court of equity having jurisdiction, both at the common law and by statute, of suits for the partition of land, a defendant in such a suit is not entitled, as a matter of right, to demand a trial of the issues by a jury, even if there is a dispute as to the title.
    3. Limitation—twenty years’ possession of land. The actual and open occupancy of a tract of land for a period of twenty years, under a claim of ownership, whether under a paper title or not, is in this State sufficient to bar an action brought by the party holding the true title, when he is under no disability.
    4. But an adverse possession of land for twenty years, in order to defeat an action by the true owner of land, must have been hostile in its inception, and so continued without interruption for the full period of twenty years; and the possession must have been actual, visible and exclusive, and acquired and retained under claim of title inconsistent with that of the true owner. The title, however, need not be a rightful claim, nor the possession taken and continued under color of title.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

      Messrs. Wallace, Mason & Medbury, and Messrs. Collins & Adair, for the appellant.
    Mr. John N. Jewett, and Mr. W. T. Burgess, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Leander J. McCormick, in the Superior Court of Cook county, against Cyrus H. McCormick and Patrick Flaherty, for the purpose of dividing a certain tract of land lying in Cook county, south of the west branch of the south branch of the Chicago river, in the west half of the west half of the south-west quarter of section 30, township 39, north, range 14, east of the third principal meridian, except the south one hundred feet of the tract, containing about twenty-nine acres.

It is alleged in the bill that on the 2d day of April, 1872, Samuel J. Walker, being seized in fee of the land by deed of that date, conveyed the land to Cyrus H. McCormick and complainant, who now own the land as tenants in common,— Cyrus H. McCormick being entitled to an undivided threefourtlis, and the complainant one-fourth. The bill prays for a partition of the land. It is also alleged in the bill that at the time of the conveyance Patrick Flaherty, the defendant, was in possession, as tenant at will of and under Samuel J. Walker, of a portion of the lands, being a small tract of about one acre, south of the “old Blue Island road, ” so-called, and of another tract of about twelve acres, north of said road; that said tenancy has been determined, and Cyrus H. and Leander J. McCormick are entitled to the possession thereof; that Flaherty has no longer any estate or interest in said lands, and is holding over without right. It is also alleged that Flaherty entered into the possession without title, as a mere squatter; that before the conveyance from Walker, Flaherty had frequently recognized Samuel J. Walker to be the owner, and agreed to hold the possession for and under him, and surrender the land to him when requested. It is also alleged that shortly after the conveyance was made, Flaherty was requested to move off said premises, and surrender the possession to the McCormicks, which he refused to do, alleging as an excuse that he had been in possession claiming title for twenty years; that thereupon complainant and Cyrus H. McCormick commenced an action of ejectment against Flaherty, on the 19th day of March, 1877, to recover the possession of the premises; that Flaherty appeared and pleaded to the action, and the cause remained pending until October 19, 1882, when, without a trial, the cause was dismissed.

The answer of Patrick Flaherty denies that on April 2, 1872, or at any time, S. J. Walker was seized or possessed, in his own right, of the lands described in the bill; denies that Walker, on April 2, 1872, conveyed the premises to the McCormicks in the manner and for the consideration set forth in the bill; admits that he was in possession of a portion of the lands described, at the time of said alleged conveyance, but denies that he was a tenant at will- of or under said Samuel J. Walker, and denies a tenancy of any kind between Walker and himself; denies that Cyrus H. McCormick or Leander J. McCormick is entitled to the possession of the premises, as alleged, and denies that he has no interest or estate in said lands, and is holding over without right; denies that he entered into' possession without right or title, or claim or color of such, or as a mere squatter, as alleged; denies that frequently, before said conveyance, he had, or at any time, acknowledged Walker to be the owner of said land, and agreed to and with him to hold the same under and for him, and to quit and surrender the same to him when requested by Walker, or that he was so holding the same, and otherwise had no right or title to said land when said alleged conveyance was made; denies that he was, shortly after said conveyance was made, requested to move off said premises occupied by him, and to surrender the possession thereof to the complainant and Cyrus H.. McCormick, or that he refused to do so, alleging as an excuse false and fraudulent pretences; charges that he has been in the peaceable, adverse and continuous possession of said premises, with claim of title, for more than twenty years before the commencement of this suit, and insists upon the Statute of Limitations as a bar to the action.

Cyrus H. McCormick put in an answer to the bill, admitting all its allegations. He also filed a cross-bill containing the same allegations, in substance, of the original bill, and claimed the same relief against Flaherty. To the cross-bill Flaherty filed an answer similar to the one put in to the original bill. The cause came to a hearing on the bill, cross-bill, answers and replications, and the court found the issues for the complainant, and decreed that Flaherty surrender the possession of the property to the McCormicks. From this decree Flaherty appealed.

It appears from the record that on the 10th day of July, 1883, (one of the days of the July term of court,) the defendant, Flaherty, entered a motion that the cause be tried by a jury, which motion was denied, and, by agreement, the cause was continued. Afterwards, and on the 11th day of December, 1883, during the December term of court, the defendant, Flaherty, entered a motion in the cause that the issue be tried by a jury, and in support of the motion filed a demand, in writing, as follows:

“And now comes the said Patrick Flaherty and demands a trial by jury of the issues made by the pleadings in the above entitled cause, between him and the said complainants in the original and cross-bills, and for cause states that said pleadings, and the issues formed thereby, show that the only question to be tried, as between this defendant and the said
complainants, is, do the said complainants own the'premises occupied by this defendant, in fee, or does this defendant own said premises in fee,—xvliich question is purely a legal one, and has heretofore and should be now tried according to the rules of the common law in actions at law, and is not an equitable one, to be tried according to the practice in chancery cases*
Signed: Patrick Flaherty,
By counsel. ”

This application was also denied, and the defendant excepted.

It is contended that while this action is, in form, a bill in equity for partition, it is simply an action of ejectment, w'herein the McCormicks are plaintiffs, and Flaherty defendant ; that defendant had a constitutional right to trial by jury, and the denial of that right was erroneous. What may have been the secret motive of the complainant in bringing a bill in equity for partition, we have no means of knowing, nor is that fact at all material. The facts alleged in the bill are sufficient to give the court jurisdiction of the subject matter, and that is all that can be required. Originally, courts of common law had jurisdiction over the subject of partition, but whether that jurisdiction was exclusive is a question upon which the authorities do not agree. But however that may be, long before this State had an existence as a State, courts of equity had jurisdiction in cases of partition. The exercise of the jurisdiction became a necessity, for the reason that in many eases the remedy at law was found to be inadequate. In 1 Story’s Equity Jurisprudence, sec. 651, the author says: “The true expression of the doctrine should have been, that courts of equity interfere in cases of such a complication of titles because the remedy at law is inadequate and imperfect, without the aid of a court of equity, to promote a discovery, or to remove obstructions to the right, or to grant some other equitable redress. ” Lord Eldon, in Ayer v. Fairfax, 17 Ves. 551, said: “This court issues the commission, not under the authority of any act of parliament, hut on account of the extreme difficulty attending the process of partition at law, where the plaintiff must prove his title as he declares, and also the titles of the defendants, and judgment is given for partition according to the respective titles so proved. That is attended with so much difficulty, that, by analogy to the jurisdiction of a court of equity in the case of dower, a partition may be obtained by bill. The plaintiff must, however, state, upon the record, his own title and the titles of the defendants; and, with a view to enable the plaintiff to obtain a judgment for partition, the court will direct inquiries, to ascertain who are, with him, entitled to the whole subject.” These authorities indicate the ground upon which courts of equity become invested with jurisdiction in cases of partition, and that jurisdiction has been exercised so long that the power is not now a matter of dispute.

If we are correct in this, it would seem to follow that the defendant was not entitled to a jury as a matter of right, unless the jurisdiction of courts of equity has been changed by our constitution or statute, and that the court, sitting as a court of equity, had the right to proceed in the trial of the case without a jury, in accordance with the rules and practice of courts óf equity in other cases cognizable in such courts. Under our present constitution the right of trial by jury is preserved, but that provision has no reference to cases in which courts of equity have jurisdiction. That question was considered in Heacock v. Hosmer, 109 Ill. 245, and we there held that the present constitution of the State preserves the right of trial by jury in all cases where that right had existed before its adoption; but the right to such trial does not extend to cases in equity, but is confined to cases at law. There is, therefore, nothing in the constitution which takes away from courts of equity jurisdiction in partition cases, and so far as our statute is concerned, jurisdiction is conferred in express words. So far, then, as defendant’s constitutional right to a trial by jury was concerned, we are of opinion that the decision of the court was correct,—that the cause was one in equity, in which a trial by jury could not be demanded as a matter of right, under the constitution and laws of the State.

Section 1, chapter 106, of the Revised Statutes of 1874, confers jurisdiction on a court of chancery to partition lands held by tenants in common, whether the title may be derived by purchase, devise or descent. Section 39 of the same act provides, that “in nail suits for the partition of real estate, whether by bill in chancery or by petition, under this act, the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds, * * * invest titles, by their decrees, in the parties to whom the premises are allotted. ” This statute has been construed and sustained in the following cases: Henrichsen v. Hodgen, 67 Ill. 179; Gage v. Lightburn, 93 id. 248.

The defendant, Flaherty, set up as a bar to a recovery on the part of the McCormicks, adverse possession under claim of ownership for twenty years before the filing of the bill. The original bill was filed on the 20th day of October, Í882, and if Flaherty went into the' actual possession of the land in controversy prior to October 20, 1862, as owner, and continued in the actual possession under such claim from the time of his entry until the filing of the bill, it is manifest he is entitled to claim the protection of the statute as a bar to a recovery of the possession. of the premises in any action brought by the McCormicks, although they may have established title to the land. . It is true that an adverse possession sufficient to defeat the right of action of the party who holds the legal title, must be hostile in its inception, and so continue without interruption for a period of twenty years. The possession must be actual, visible and exclusive,—acquired and retained under claim of title inconsistent with that of the true owner. The title need not he a rightful claim, nor even a muniment of title. It is sufficient when a party takes possession of land claiming it to be his own, and holds the possession for the requisite period, with the continued assertion of ownership. (Turney v. Chamberlain, 15 Ill. 271.) Flaherty testified that he went into the possession of the premises in the spring of 1856, and in this he is corroborated by a number of witnesses; but some of the witnesses for complainant fix the date of his entry upon the land in 1857 or 1858. This conflict, however, is not material. If the possession did not commence until 1858, there was ample time to complete the running of the statute before the action was ' commenced. Whether the entry, therefore, was in 1856, 1857 or 1858, is not material. It is, however, fully established by the evidence, that in one of these years Flaherty went into the possession of the premises in dispute, erected a house thereon, inclosed the land with a fence, and from that time down to the present he has occupied the property and cultivated it, asserting to be the owner. It is true that the land embraced in Flaherty’s inclosure was in an irregular shape, and that he has not paid the taxes thereon, which may be regarded as a circumstance against him; but it is apparent from the evidence, that from the beginning of his possession he has all the time asserted ownership of the 'property. It is also true that he did not enter under a paper title, but that was not necessary. As held in the case heretofore cited, his entry under claim of ownership was enough.

It is plain, from the evidence, the possession of Flaherty was visible, open and notorious, and continued for a sufficient time to bar a recovery, unless, as is claimed in the bill, he was in the possession under the title of Walker, who conveyed to the McCormicks. Samuel J. Walker claimed to have acquired title to the premises in 1853, which were conveyed to the McCormicks in 1872. It is not claimed that Flaherty entered originally under Walker, or that he ever accepted or held a written lease from Walker or his grantee, but reliance is placed upon three things to establish the fact that Flaherty held under the Walker title, viz: First, it appears that one Clark, in 1863, acting for Iglehart & Co., who were agents of Samuel J. Walker, served a notice on Flaherty requiring him to vacate the premises. Clark left the notice at Flaherty’s house, and afterwards met him and informed him about the notice, and Flaherty asked if he could not make some arrangement with Iglehart. He was referred to Iglehart, and the two had a conference, but what was said or agreed upon, if anything, is not disclosed by the evidence. At the time of this occurrence, Flaherty had been living on and cultivating the premises, under the claim of ownership, for six or seven years. After the interview with Iglehart, he continued in the possession precisely as he did before. No rent, so far as appears, was demanded or paid. Indeed, nothing was done to indicate any change in the manner in which he occupied the land. Giving this interview all the prominence which can in reason be attached to it, it is so meagre and indefinite that it can not be relied upon, with any degree of confidence, to establish the fact that Flaherty had abandoned his claim as owner, and held, possession under the Walker title. •The next thing relied upon is an alleged conversation which occurred in the spring of 1871, between Henry H. Walker (acting for Samuel J. Walker,) and Flaherty. The substance of Walker’s evidence on this point is, that he had an interview with Flaherty, on the premises, and asked him whose land he was occupying, and he replied, “Walker’s, ” and it was then arranged, as Walker says, that Flaherty should remain in possession of the land at a rent of $25 per annum. The next thing relied upon is an interview, on the premises, in the latter part of 1871 or early in 1872, between the two Walkers and Flaherty, in which, as the Walkers testify, Flaherty admitted that the land he occupied belonged to the Walkers. Samuel J. Walker then arranged with Flaherty that he should remain on the premises without charge, he keeping off intruders, until possession was required. These conversations were unequivocally denied by Flaherty, who testified that he never had either of the conversations, at any time or place. The Walkers, it will be remembered, were large dealers in real estate, and doubtless knew and realized the importance,, not only of obtaining the possession of a tract of land occupied adversely to their title, but also of preserving the evidence of a fact of that character, and it seems strange, if their version of the transaction is the correct one, when they found Flaherty, who then had occupied the land fifteen or sixteen years, willing to recognize their title and become their tenant, that they failed to place the matter beyond dispute, and have a written lease executed. If an agreement was made, as claimed, that Flaherty should hold under the Walker title, it is but reasonable to believe that a written lease would have been executed, and the fact that no lease was prepared and signed, is a strong circumstance in Flaherty’s favor. In the first interview which H. H. Walker had with Flaherty, he testified, as before stated, that it was arranged that Flaherty should remain in possession of the premises at $25 per annum. If this was true, when he and Samuel Walker called on Flaherty, six or eight months later, why did Samuel Walker then inquire “whose premises those were that he was on?” If he was holding at a rental of $25 per annum, the Walkers knew it, and why ask the question which was propounded ? If the owner of a farm should lease it to a tenant, and in six or eight months call on the tenant to see how he was getting along, and ask him who owned the land he occupied, any reasonable person would conclude, and justly, too, that the landlord was insane.

But this is not the only strange thing in regard to the conduct of the Walkers. According to H. H. Walker’s account, Flaherty was to pay $25 per annum rent. When they called the second time nothing was said about the payment of the rent previously agreed upon, but Samuel Walker, without any request from Flaherty, informed him that he could occupy the premises without charge. This was magnanimous; but if a lease was in existence, why make such a change? Again, as before observed, Flaherty had occupied the property, claiming it as owner, for fifteen years, and yet the moment the Walkers appeared, strangers as they were, according to their version of the transaction, he recognized their title, and agreed to surrender up the land, with the house, fences, and all other improvements he had made at his own expense, and not a single word was said in regard to pay for the outlay he had made on the property. It is possible that Flaherty did as the Walkers claim, but the occurrence is so unreasonable and contrary to what might be expected from a man situated as Flaherty was, that we do not regard the evidence, contradicted as it was by Flaherty, sufficient to convert his possession from that of one claiming title, into that of a tenant, or sufficient to establish the fact that Flaherty was -holding the possession of the land under the Walker title.

As has been observed, Flaherty entered into possession of the land without paper title of any description, and it is contended in the argument that his possession was not adverse or hostile, and, although continued for twenty years, such possession was not a bar to a recovery in an action brought by the owner of the title. We are aware of the fact that it has been held by some courts of last resort that possession of lands, to be availing, must be taken and held under color of title; but such is not the rule which has been established in this State. This court has held in a number of cases, that actual occupation of a tract of land for a period of twenty years, under claim of ownership, is sufficient to bar an action brought by the party holding the title, where the owner of the title is not under disability. Weber v. Anderson, 73 Ill. 440; Hubbard v. Stearns, 86 id. 35; Schneider v. Botsch, 90 id. 577; James v. Indianapolis and St. Louis Railroad Co. 91 id. 554. The doctrine. announced in the cases cited we believe to be well sustained by the courts of other States. In Overfield v. Christie, 7 Serg. & Rawle, 177, the court, in considering the question of adverse possession, said: “I have no manner of doubt that one who enters as a trespasser, clears land, builds a house and lives in it, acquires something which he may transfer to another; and if the possession of the two, added together, amounts to twenty-one years, and was adverse to him who had the legal title, the act of limitation will be a bar to his recovery. ” In Payne v. Skinner, 8 Ohio, 159, it was held that possession, to be availing under the Statute of Limitations, must be actual and notorious, but whether the person claiming under the statute did or did not enter into possession under color of title was immaterial. Other decisions in that State are to the same effect, and the statute in that State which bars an action unless suit is brought within twenty years, is almost identical with our statute on the subject. In Bowman v. Grubbs, 26 Ind. 419, it was also held that color of title was. not necessary to constitute an adverse holding so as to bar an action under the Statute of Limitations. It is there said: . “It is claimed that the defendant went into possession without color of title,—that he was a mere trespasser. * * * Color of title is not necessary to constitute an adverse holding so as to bar an action under the Statute of Limitations. * * * The fact of possession, and the quo animo it commenced, are the tests. The defendant entered under a claim of ownership, and he was in possession to the extent of his claim. ” In Munshower v. Patton, 10 Serg. & Rawle, 334, it was held that actual occupation, however tortious it might be, and however destitute of color of title, either in law or equity, gives a right to the extent of in closure against all the world but the State. Other authorities might be cited, but it is unnecessary.

The language of our statute will not admit of the construction contended for. It provides, “that no person shall commenee an action for the recovery of lands, nor make an entry thereon, unless within twenty years after the right to bring such action or make such entry accrued. ” No mention is made in the statute in reference to the occupant having color of title, and we do not feel at liberty to impose a requirement not specified in the statute. The action accrued when Flaherty went into actual possession of the land claiming to be the owner, and if the persons holding the title saw proper to allow him to occupy the land for a period of twenty years, until their right of action was barred by the statute, they alone are to blame.

The judgment of the Superior Court will be reversed and the' cause remanded.

Judgment reversed.

Scott and Sheldon, JJ., dissenting.


author: Mr. Justice Scott

text:
    Alexander B. Carrow v. The People of the State of Illinois.

      Filed at Ottawa

      May 15, 1885.

    1. Change of ventje—diligence required in making application. An information was filed against a defendant on May 10, 1883, in the county court, for selling intoxicating liquor without a license, and he was arrested on the following day and gave bail for his appearance at the next term, which commenced on the 14th of the same month. On the 14th he served notice on the State’s attorney that he would ask for a change of venue, on account of the prejudice of the judge of the court, and on the next day filed his petition for that purpose in due form, and entered his motion for the change of venue, which the court overruled: Held, that it was error to refuse the motion, and that no greater diligence could be required than was shown.
    2. Information—of the affidavit—before whom it is to be made. The county court may grant leave to the State’s attorney to file an information against one for selling intoxicating liquors without a legal license, upon a proper affidavit made before a justice of the peace, which satisfies the court that there is probable cause for filing an information. It is not essential the affidavit should be made before the judge of the county court.
    3. Juror—competency—prejudice against the particular business. It is no legal objection to the competency of a juror in a prosecution for selling intoxicating liquors without a license, that he may not approve of selling such liquors either with or without a legal license to keep a dram-shop.
    4. But if a juror is so prejudiced against one charged with selling intoxicating liquors, or any other misdemeanor or crime, that he can not give the accused a fair and impartial trial, he will be incompetent to serve.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the County Court of Iroquois county; the Hon. S. G. Bovie, Judge, presiding.
    This was an information filed by the State’s attorney against Alexander B. Carrow, for selling liquor without having a legal license so to do. Leave was granted to file the same upon the following affidavit:
    “State of Illinois, ) gg

      Iroquois County. )

    “Joseph Manning, being duly sworn, on his oath states that Alexander B. Carrow on the 4th day of May, in 1883, and on divers other days before as well as after that date, at and within the county of Iroquois and State of Illinois, not having a legal license to keep a dram-shop, intoxicating liquors in less quantities than one gallon, unlawfully did then and there sell, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the
    same People of the State of Illinois. T
    T Joseph Manning.
    “Subscribed and sworn to before me this 9th day of May, A. D. 1883. W. B. SisroNDs, J. P.”

    Before arraignment in open court, on May 15, 1883, the defendant applied for a change of venue, on account of the prejudice of the judge, and in support of the application filed a copy of a notice of the application served on the State’s attorney on the preceding day. He also filed his petition, which, after the entitling of the case, is in the following words;
    “The petitioner, Alexander B. Carrow, who, being duly sworn, on oath states that he is the defendant in the above entitled cause, and that he fears that he will not receive a fair and impartial trial in the said court, because'the judge of said court, the Hon. S. G. Bovie, is prejudiced against petitioner. And petitioner further states that the judge of the circuit court, the Hon. -Franklin Blades, is prejudiced against him, and because of such prejudice he fears he can not and will not receive a fair and impartial trial before said Judge Franklin Blades, in the circuit court of said county of Iroquois and said State. Petitioner states that the information in this case was filed on the 10th day of May, 1883, and he was arrested on the 11th of May, 1883, and gave bond for his appearance at this term of court, and this petition is made at the first opportunity since the knowledge of said prejudice came to affiant, which Was on the 12th day of May, 1883, and this is the first term of court since affiant’s arrest. He therefore prays a change of venue according to law.
    Alexander B. Carrow. ”
    “State of Illinois, }

      Iroquois County. )
    “Alexander B. Carrow,- being duly sworn, states that he has read the above and foregoing petition, and the same is true in substance and in fact. .Alexander B. Carrow.”
    “Subscribed and sworn to before me this 14th day of May, 1883. [Seal.] W. F. Pierson, Notary Public.

    Filed May 15, 1883. Henry’A. Butzow, Clerk.”

    In support of said petition the following affidavits were filed:

      State of Illinois, ) County Court, May Term, 1883. Iroquois County. ) J J

      “The People of the State of Illinois y. Alexander B. Carrow. Information for selling liquor without license:
    “John B. Salkeld, being duly sworn, states upon oath that he is a reputable person, and a resident of said county of Iroquois, in said State, and that he is not of kin or counsel to the said Alexander B. Carrow, applicant for a change of venue, and affiant believes the judge of said county court, Stephen G. Bovie, and the judge of the circuit court, Franklin Blades, and each of them, are so prejudiced against the defendant in said cause that he, the said defendant, can not have a fair and impartial trial-before either of said judges. Further affiant saith not. John B. Salkeld.”
    “Subscribed and sworn to before me this 14th day of May, A. D. 1883. E. Simpson, J. P.

    Filed May 15, 1883. Henbv A. Butzow, Clerk.”

    “State of Illinois, > gg_ Count Court, May Term> 1883. Iroquois County. ) J

    “ The People of the State of Illinois v. Alexander B. Carrow. Information for selling liquor without license:
    “James N'osker, being duly sworn, states upon oath that he is a reputable person, and a resident of said county of Iroquois, and said State, and that he is not of kin or counsel to the said Alexander B. Carrow, applicant for a change of venue, and affiant states that he believes the judge of said county court, Stephen G. Bovie, and the judge of the circuit court, Franklin Blades, and each of them, are so prejudiced against the defendant in said cause that he, the said defendant, can not have a fair and impartial trial before either of
    said judges. Further affiant saith not.
    __ James Noskeb.
    “Subscribed and sworn to before me this 14th day of May, A. D. 1883. E. Simpson, J. P.

    Filed May 15, 1883. Henbv A. Butzow, Clerk.”

      The following counter affidavit was filed by the People:

      “The People of the State of Illinois v. Alexander B. Carrow:

    “B. W. Hilscher, being duly sworn, on his oath says that the first and only notice of an intended application for a change of venue by said defendant that he received or had ' served upon him as State’s attorney in and for said county, or in any other capacity, is the notice hereto attached, and was served on him by Free P. Morris, one of the attorneys a for said defendant, about half-past five or six o’clock in the afternoon of the 14th day of May, A. D. 1883.
    B. W. Hilscher.”
    \
    “Subscribed and sworn to before me this 15th day of May,
    A. D. 1883. Henry A. Butzow, Clerk.”

    Filed May 15, 1883.
    Which were all the papers and evidence offered, used or read on the hearing of the application for change of venue of said cause. But the court refused to grant the change of venue, to which ruling defendant excepted.
    In impaneling the jury, one 0. F. Phelps was challenged for cause, for the reason he had a prejudice against the liquor business, and a man engaged in that business. ' The court overruled the challenge, and the defendant challenged the juror peremptorily.
    A. G. Parks stated he was prejudiced against the liquor business; that it was pretty hard to sell liquor right, and that he would require strict proof that a party sold according to law; that he was prejudiced against a man selling liquor, whether he did it according to law or not, and that if the evidence showed defendant engaged in selling liquor, he would be prejudiced against him. Defendant challenged the juror for cause, when the court asked the juror: “If, from all the evidence in this case, you should have a reasonable doubt, would you give the defendant the benefit of that doubt in a liquor-case as well as any other criminal case?” And he answered,- “I think I could. ” The court overruled the challenge, and the juror was then challenged peremptorily.
    David Johnson said he had heard of the case, but not the facts, and that he condemned the liquor business. He was challenged.
    B. F. Farrington stated: “The fact a party was charged
    with selling liquor might have a little influence over me.” That he was opposed to selling liquor, and would be inclined to think defendant guilty, or he would not be charged. The person so answering was challenged for cause, but the court overruled the challenge, and defendant excepted.
    J. R. Parkinson was challenged peremptorily. The State’s attorney thereupon insisted that the challenges of the defendant were exhausted, whereupon the court overruled the challenge, to which the defendant excepted.
    Mr. Kershow was examined as to his competency, and said he was prejudiced against selling liquor, and so opposed to a man in that business that it would influence him against him on the trial, and the fact that defendant is charged would require some explanation or evidence on his part. The appellant was challenged for cause, but the court overruled the challenge, to which the defendant excepted.
    Mr. Isaac W. Holland, and Messrs. Doyle, Morris & Pier-son, for the plaintiff in error:
    The affidavit upon which the information is based was not made before the county judge pursuant to the evident statutory intent. Hurd’s Stat. 1883, chap. 37, sec. 207.
    The affidavit makes but one specific charge, while the information makes twenty-six. That part of the statute which gives the State’s attorney authority to file an information of his own motion, is antagonistic to article 2, section 6, of the Bill of Rights.
    The defendant complied with the law by presenting his petition for a change of venue, and it being on account of the prejudice of the judge, it was not permissible fora counter . showing to be made, and the court erred in refusing the application. Hurd’s Stat. 1883, chap. 146, sec. 18, secs. 20, 21; McGoon v. Little, 2 Gilm. 42; Barrows v. People, 11 Ill. 121; Walsh v. Ray, 38 id. 30.
    The notice of the application should be reasonable, and the length of time necessary to constitute a reasonable notice will depend on the circumstances.
    And when the application is on account of the prejudice of the judge, it is error to deny it. Perteet v. People, 65 Ill. 230; Rafferty v. People, 66 id. 118; Freeling v. State, 8 Mo. 611; Cross v. State, 2 Greene, (Iowa,) 353; Welsh v. Savery, . 4 Iowa, 241; Brener v. Frazier, 8 id. 77; MeCann v. People, 88 Ill. 103; Lumbard v. People, 5 Bradeen, 560.
    Mr. George Hunt, Attorney General, for the People:
    The affidavit of Manning justified the filing of the information. It was not necessary it should be sworn to before the county judge. Myers v. People, 67 Ill. 503.
    The claim that defendant had a license to sell, is not well taken. The license was not signed by the president, and was issued to extend' beyond the municipal year for which a majority of the trustees were elected, and was to commence beyond such year, and was therefore void. Rev. Stat. chap. 24, sec. 62, clause 46.
   Mr. Justice Scott

delivered the opinion of the Court:

The information in this case was filed on the 10th day of May, 1883, in vacation, after the January term, 1883, in the county court of Iroquois county, by the State’s attorney, and charges defendant, Alex. B. Carrow, with selling intoxicating liquors contrary to the statute, he not having a legal license to keep a “dram-shop.” It contains twenty-six counts, alleging, by appropriate averments, that many distinct offences. On the trial in the county court, defendant was found guilty of five offences as charged in the information, and the court imposed a fine of $40 and costs on each count on which defendant was found guilty, and rendered judgment against him accordingly, and, as a part of the judgment, ordered that defendant stand committed until fine and costs should be paid. That judgment was affirmed in the Appellate Court for the Second District, and defendant brings the case to this court on error.

No matter what view could be taken of the merits of the case, the present judgment against defendant must be reversed on account of the refusal of the court to allow defendant’s motion for a change of venue of the cause. The petition .on which the motion was based was in the usual form, and alleged the judge of the court in which the cause was pending was so prejudiced against- defendant that he feared he could not have a fair and impartial trial in such court. It conformed in all essential particulars to the requirements of the law, and was presented in apt time. As appears from the record, the information was filed against defendant on the 10th day of May, 1883. He was arrested on the 11th day of that month, and gave bail for his appearance at the next term of the county court, which convened on the 14th day of the same month. On the first day of the May term, 1883, of the county court, (that is, on the 14th day of that month,) defendant caused notice to be served on the State’s attorney that he would ask a change of venue of the cause on account of the prejudice of the judge, and on the next morning he made his motion for that purpose, which was by the court disallowed. Greater diligence the law does not require, and it was error in the court to refuse to change the venue of the cause, as was asked to be done by the petition.

There are a few questions that may arise on another trial of the cause, concerning which something ought now to be said. The point made the information is founded on no sufficient affidavit, is not well taken. Construing the statute, as, perhaps, should be done, with reference to the sixth section of the Bill of Bights, which declares “no warrant shall issue without probable cause, ” the affidavit filed in this cause does show probable cause for filing the information, and the subsequent arrest of defendant. It is a matter of no consequence before whom the affidavit was made. It is not essential it should have been made before the judge of the county court that granted leave to present the information. In this case the affidavit was sworn to before a justice of the peace, and that is sufficient, if it satisfied the judge to whom it was presented there was “probable cause” for filing the information. More than that the law does not require for the security of the citizen against unwarrantable prosecutions. Myers v. People, 67 Ill. 503.

Objections are taken to the rulings of the court touching the competency of a number of jurors chosen to try the cause. It is no legal objection to the competency of a juror, in such cases as the one now being considered, the juror may not approve of selling intoxicating liquors, either with or without a legal license to keep a dram-shop. He is quite as competent, other qualifications being equal, as one who does approve of it; and if both classes should be excluded, it is obvious it would be impracticable to secure a jury in such cases, for it is apparent most men who have capacity enough to make an intelligent juror have convictions as to the propriety of such a business. One may approve it, and another condemn it, but his convictions in that respect would not disqualify a person having all other necessary qualifications from becoming a juror. Some of the persons in this case, when examined touching their competency as jurors, answered, they had a “prejudice against the business of selling intoxicating liquors, ” and some, perhaps, went to the extent of saying that prejudice extended to defendant. It is apparent, from the whole examination, that all the juror wished to be understood as saying was, he did not approve of the business of selling intoxicating liquors, and nothing more. All right-minded persons disapprove of crime, but their hatred of everything they may believe hurtful to the public welfare by no means disqualifies them for jury service,—otherwise the administration of the criminal law would be largely committed to the worst class of persons, which, of course, the law will not tolerate. But if a person is so prejudiced against one charged with selling intoxicating liquors, or any other misdemeanor or crime, that he could not give the accused a fair and impartial trial, he would, of course, be an incompetent juror, and should be excused from serving in that capacity. Under this latter rule one or two of the jurors chosen in this case were clearly disqualified, and the court should have sustained the challenges to their competency.

On account of the. error indicated, the judgment of the Appellate Court will be reversed, and the cause remanded, with directions to reverse the judgment of the county court and remand the cause for a new trial.

Judgment reversed!.