author: Mr. Justice Craig

text:
    Mart A. Marmon v. Thomas F. Harwood et al.

      Wiled at Springfield March 28, 1888.

    FbaxjdttIiENT conveyance—voluntary conveyance to a child—retaining property apparently sufficient to pay debts. A voluntary conveyanee to a child by a debtor, is fraudulent as to pre-existing creditors of the donor even though the latter retains property apparently sufficient in value to satisfy all his indebtedness, when it results that the property retained is not in fact sufficient to discharge all his liabilities.
    2. Same—inadequate provision for payment of debts. Nor will the voluntary conveyance by a debtor be relieved of its fraudulent character as against creditors, merely from the fact that he has placed sufficient means in the hands of another for the payment of his debts, the fund so provided being misapplied to other purposes.
    3. SAME'—motives and intent of the. donor and Ms grantee, as giving character to the transaction. If a voluntary conveyance from a parent to a child results in hindering or delaying creditors, it will be fraudulent in law, notwithstanding the grantor’s motives may have been honest and upright, and he may have supposed he retained ample means to discharge all of his debts.
    4. On bill by a creditor to impeach a voluntary conveyance, the motives of the grantee do not determine the validity of the transfer. If, however, the conveyance is based upon a valuable consideration, then the intent of the grantee may become important.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. James S. Ewing, and Mr. Hamilton Spencer, for the appellant:
    The decree appealed from is erroneous, because it directs the property conveyed to Mrs. Marmon to be sold on the Harwood judgment, and is not in the alternative, that if the judgment is not paid by Mrs. Marmon then the property shall be sold. Patterson v. McKinney, 97 Ill. 41.
    The conveyance of Mrs. Paist to Mrs. Marmon was not fraudulent as against creditors. She retained property abundantly sufficient to pay all her debts. There is nowhere in the record, either in the bill or in the proofs, any suggestion, even, that Mrs. Marmon was party to any alleged fraud'. She had no knowledge of any debt owing by her mother, Mrs. Paist.
    To subject lands to the payment of debt because of a fraudulent conveyance, it must appear that the grantee had notice of the fraud. Kyzer v. Hull Skirt Co. 34 Ind. 249.
    A voluntary deed by a parent to a child will be upheld, if, at the time, the grantor retains property reasonably sufficient to pay his debts. Durand v. Weightman, 108 Ill. 489; Wooldridge v. Gage, 68 id. 157; Bridgford v. Riddell, 55 id. 261; Moritz v. Hoffman, 35 id. 553; Ward v. Enders, 29 id. 519; Tunison v. Chamblin, 88 id. 378; Pratt v. Myers, 56 id. 23; Jackson v. Miner, 101 id. 550. These cases refer mainly to the rights of subsequent creditors as against a voluntary conveyance.
    As to the validity of a voluntary conveyance, as to prior creditors, it must be affirmatively shown that the grantor was insolvent, or at least deeply indebted, at the time of making such conveyance. Gudgel v. Kitterman, 108 Ill. 50; Moritz v. Hoffman, 35 id. 553; Patrick v. Patrick, 77 id. 555; Bridgford v. Riddell, 55 id. 261; Gridley v. Watson, 53 id. 186; Tunison.
      v. Chamblin, 88 id. 378; Pratt v. Myers, 56 id. 23; Emerson v. Bemis, 69 id. 537; Crawford v. Logan, 97 id. 396; Patterson v. McKinney, 97 id. 41; Kehr v. Smith, 20 Wall. 31; Story’s Eg. Jur. sec. 1041; Bump on Fraud. Con. 282-287.
    Messrs. Herrick, Lucas & Spencer, for the appellees:
    The fact that appellant may have been innocent of any fraudulent intent in taking the conveyance, will not do away with the effect of the fraud of the grantor, when there is no consideration. Bump on Fraud. Con. 268, 274-276.
    It was not necessary to show that the grantor in fact intended to hinder or delay her creditors. If the gift tended in any way to hinder, etc., it was fraudulent in law. Bump on Fraud. Con. 271, 272.
    The debtor need not be insolvent to render a voluntary conveyance fraudulent. Bump on Fraud. Con. 285, 288, 289; Emerson v. Bemis, 69 Ill. 541; Patterson v. McKinney, 97 id. 41.
    A voluntary conveyance must be such as a prudent man would make with a proper regard to his creditors and circumstances, and a due consideration of all future events which prudence can foresee. Bump on Fraud. Con. 290; Russell v. Fanning, 2 Bradw. 640; Bullett v. Worthington, 3 Md. Ch. 99; Cash v. Oakley, 50 Miss. 629; Kehr v. Smith, 20 Wall. 31; Edmunds v. Mister, 58 Miss. 776; Eddy v. Baldwin, 32 Mo. 369.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a creditor’s bill, brought by Thomas F. and Willis S. Harwood, in the circuit court of McLean county, against Mary A. Marmon, Maria Paist, Owen L. Cheney, Mary L. Cheney, his wife, and William W. Marmon. The object of the bill was to set aside certain deeds executed by Maria Paist to Mary A. Marmon and Mary L. Cheney, whereby certain real estate was conveyed to them, and subject the jiroperty to "the payment of a judgment which complainants had recovered against Maria Paist. Upon the hearing in the circuit court, •on the pleadings and evidence, a decree was rendered in favor ■of the complainants. Mary A. Marmon appealed to the Appellate Court, where the decree' was affirmed. To reverse that judgment she has appealed to this court.

There is no material conflict in the evidence, nor do the parties disagree in regard to the facts established by the evidence, upon which the decree was rendered; hut it is insisted that the conveyance from Maria Paist to Mary A. Marmon was not fraudulent as against creditors; that at the time the deed was executed she retained property sufficient to pay all Jier debts, and for this reason the decree was erroneous.

It appears from the evidence, that in the month of April, 1884, Maria Paist, and her son, O. L. Cheney, executed and •delivered to H. T. Levin a promissory note for $3556, due in iwo years, with interest at seven per cent per annum. This note was sold to the complainants, and they recovered a judgment upon it for $4053.84. On April 30, 1886, an execution was issued upon the j udgment, and returned no property found. At the time the note was executed, Maria Paist was the owner in fee of lot 16, the east half of lot 1Y, and the south half of lot 19, all in White’s addition, and was the owner of lot 6, of ■assessor’s subdivision of lots 50, 51, 52, 53 and 54, of the original town, all in the city of Bloomington, and the east half of lot 4, in block 1, in Normal. She also had notes, made by W. W. Marmon, for about $2300. The first mentioned piece ■of property is known as the “homestead,” the second piece as the “Cheney homestead,” and the third as the “Hammerslaugh building.” Appellant and O. L. Cheney are the daughter and «on of Maria Paist, and Mary Cheney is the wife' of O.L. Cheney.

On the 5th day of November, 1884, Mrs. Paist made two deeds,—i. e., one to appellant, for the homestead, reciting a ■consideration of $Y000, the other to Mary Cheney, for the Cheney homestead, the Hammerslaugh building, and the Normal property. The homestead, Avhich was conveyed to appellant, was clear from incumbrance, and worth $7000. The Cheney homestead was incumbered for $1000, but was worth $2500. The Hammerslaugh property was mortgaged for some $8000, but worth $4000 above the mortgage. The lots in Normal were worth $300. _ The deeds purporting to convey the property to appellant and to Mary Cheney were executed without consideration. At the time of these conveyances Mrs. Paist was indebted on a promissory note, which she had signed with her son, in the sum of $1000, in addition to the debt she owed complainants. The property she conveyed without consideration exceeded in value $13,000. She retained no real estate, or property of any character, except notes of W. W. Marmon for $2300, and a note, secured by a second mortgage on the fair grounds at Bloomington, for $6000. This claim was subject to a prior mortgage of over $11,000, held by one Brokaw. On the 16th day of March, 1885, the Hammerslaugh property was sold to Dr. Barnes for $4000, subject to the mortgage on the property. Soon after this sale, the fair grounds, upon which Mrs. Paist held a second mortgage, were advertised for sale on the first mortgage, and at the sale Mrs. Paist became the purchaser, for the amount of the debt and costs. Upon making the purchase she paid $5000 cash down, and gave a mortgage on the property to secure the remaining $7000. The cash payment was made up of $4000 which Mrs. Cheney had received from the sale of the Hammerslaugh property, and $1000 which she borrowed. On the 29th day of September, 1885, Maria Paist conveyed the fair grounds to James B. Stevenson for $7500, subject to the mortgage she had given, of $8000. She received cash, $2000, Normal property, $2500, notes, $3000. The Normal property was soon sold, and the cash, notes and proceeds of the Normal property were all turned over by Mrs. Paist to her son, O. L. Cheney, and he lost the entire amount on the Chicago Board of Trade. The notes Mrs. Paist held against Marmon had all been disposed of before complainant’s debt matured, except a note for $1300, which was turned over to secure attorney’s fees to defend this suit.

In Patterson v. McKinney, 97 Ill. 41, where a voluntary ■conveyance of lands had been made by Patterson for the benefit of his wife, the grantor retaining property which exceeded in nominal value the total amount of his indebtedness existing at the time of the conveyance, it was insisted, as it is in this •case, that the transaction was not fraudulent as against creditors ; but the position was not sustained. In deciding the case the court held that a voluntary conveyance to a wife or child when the donor is in embarrassed financial circumstances, is fraudulent as to pre-existing creditors, even though the party retains estate nominally in value equal to, or more than equal to, all his indebtedness, when the event shows that the prop-erty retained is in fact not sufficient to discharge all his liabilities. In the Patterson case, the grantor, at the time he made the conveyance to his wife, had more property than Maria Paist had when she conveyed to appellant, and was indebted to a greater extent; but this case can not, in principle, be ■distinguished from the Patterson case. The principle which controlled the one must govern the other.

In April, 1884, when the note upon which complainants ■obtained judgment was executed, Maria Paist owned property (mostly real estate) exceeding in value $13,000, but when 'the judgment was rendered, two years thereafter, shé had no property liable to execution, and almost all her property had, .between the date the note was given and the date of the judg•ment, been transferred to her children without consideration. Seven months after the note upon which complainants obtained judgment, was given, Mrs. Paist conveyed to appellant the homestead,—the property here involved,—the property at the time being worth $7000; but no consideration passed from the grantee to the grantor. It may be that Mrs. Paist did not, .at the time she conveyed this property to her daughter, design to defraud her creditors; or it may be that the transaction, was not fraudulent in fact,—that she expected to pay her debts from the property she retained, when she made the conveyance to appellant. But however that may be, we think it plain, from the evidence introduced on the hearing, the transaction is one which,- as against pre-existing creditors, was fraudulent in law. What may have been in the mind of the grantor when: she conveyed the property to her daughter, is immaterial. The conveyance being voluntary, if it resulted in hindering, delaying or defrauding creditors, it must be regarded as fraudulent in law. This view of the law is well expressed by Bump on Fraudulent Conveyances, secs. 271, 272, as follows: “The law will not speculate about what is actually passing in the donor’s mind, for the act need not be immoral or corrupt. The law does not concern itself about the private or secret motives which may influence the debtor. It does not deal with his conscience. He may make a conveyance' with the most upright intentions, really believing that he has a right to do so, and that it is his right and duty to do it; and yet, if the transfer is voluntary, and hinders, delays or defrauds his creditors, it is fraudulent. * * * The debtor may have some other purpose in view, but the intent to defraud is a part and parcel of his act.”

It may be said, that in accepting the conveyance appellant was innocent df any fraudulent intent. Conceding that to be the case, the transaction would not be relieved of a fraudulent character. Where a bill is brought to impeach a voluntary conveyance by a debtor, the motive of the grantee does not determine the validity of the transfer. It is the motive of the giver, and not the knowledge of the acceptor, that is to determine the validity of the transfer. (Bump on Fraudulent Conveyances, 280.) Had the transfer been made for a good consideration, a different question might arise; but such was not the case.

Reference has been made in the argument to the fact that Mrs. Paist offered to sell the fair grounds property to complainants, in payment of their debt, and also, upon the sale of that property, she placed a fund in the hands of O. L. Cheney amply sufficient to pay the debt, which he was directed to apply in that way. There are facts tending, doubtless, to show that Mrs. Paist did not intend, by the. conveyance to her daughter, to defraud her creditors; but as has been said before, it was not necessary to prove actual fraud in order to impeach the transaction. When the deed was made to appellant, the grantor was indebted ,to the amount of $5000. Without securing or paying these debts, she conveyed to her daughter the largest portion of her estate without consideration, the property retained not being adequate, as the sequel showed, to discharge her debts. As was held in the Patterson case, swpra, she had no right, as against her creditors, to make such a disposition of her property. As respects creditors, such a transaction was fraudulent in law. But aside from this, as to the fact that Mrs. Paist placed funds in the hands of her son, O. L. Cheney, to pay her indebtedness, was of no importance. He was insolvent, and known to be so, when the funds were placed in his hands, and an act of this character could be of no benefit to creditors, nor could it have any bearing on the case. Had the money been placed in the hands of a solvent party, the act might be regarded in a different light, as it might then have been anticipated that it would be paid over to creditors; but when the money was turned over to Cheney, Mrs. Paist must have known that it would be lost or squandered, as it was.

Objection is made to the form of the decree, but we do not regard it so informal as to require a modification.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    The Chicago, Burlington and Quincy Railroad Company v. William Schaffer.

      Filed at Springfield March 28, 1888.

    1. Fobmeb beo overt—after- accruing damages—whether a further action may be brought—of continuing a miisance. Where a railway company, under authority of law, properly constructs a bridge over a watercourse, and suit is brought by the land owner for damages thereby caused to his property, and a judgment is recovered and paid, it will be regarded as in full for all future as well as past damages, and a bar to a second suit for subsequent damages arising from the same cause.
    2. But when the bridge is imperfectly and improperly built, so as to prevent the free passage of the water, and thereby damages the lands above, a judgment for the damages caused by the creation of a nuisance by means of such bridge, will not be a bar to any subsequent action for damages caused by its continuance in such bad condition. In such case, the party injured is not bound to assume that the imperfect structure will be a permanent one. He has a right to regard the nuisance as of a transient character, and instead of bringing one action for the whole injury to the value of his property, resulting from the original construction of the nuisance, he may sue for the amount of such injury as he suffers from its continuance.
    3. So a party injured thereby may maintain an action against another for the creation of a nuisance, and a subsequent action for its continuance. The continuance of that which was originally a nuisance, is regarded as a new nuisance, and although a recovery may be barred upon the original cause, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued by reason of its continuance, within the statutory period.
    4. If, however, a land owner treats a defective structure as a railroad bridge across a stream of water, which causes his land to be overflowed and otherwise injured, as a permanent source of injury, and recovers the full amount of damages, both present and prospective, which his property sustains or may sustain by reason of such structure, he will be estopped from bringing a second action for subsequent damages.
    5. SAME—identifying prior cause of action with that of the subsequent suit. Where a judgment is shown by way of bar to a subsequent suit, whether by pleading or in evidence, it is competent for the plaintiff to reply that the prior suit did not relate to the same property or transaction in controversy in the action in which the judgment is set up in bar, and the question of identity thus raised is to be determined upon the evidence adduced.

      6. And in such case, if the face of the record does not show the full and true state of the controversy and the matters investigated in the prior suit, parol evidence is proper to supply what is not shown, but not to contradict the record.
    7. Appeal—in case of certificate of importance—what questions may be considered. Where a ease is taken by appeal from the Appellate Court to the Supreme Court on the certificate of importance, etc., this court will not be confined to the consideration of the particular question specified in the certificate, but may consider any arid all questions of law arising upon ■ the record.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Mr. J. F. Carrott, and Mr. 0. F. Price, for the appellant:
    The defendant company, under the law, was only required to construct the bridge with such care and skill as to make it sufficient, for all ordinary floods and freshets. Railroad Co. v. Gillilan, 56 Pa. St. 445; Notris v. Railroad Co. 28 Vt. 99; Henry v. Railroad Co. 30 id. 638; Sprague v. Worcester, 13 Gray, 193; Smith v. Canal Co. 2 Allen, 355; Town of China v. Southwick, 12 Maine, 238; Sawler v. Boom Co. 56 id. 443.
    When the structure or injury is permanent in its nature, the injured party may recover damages, past, present and future, and a judgment in such a case is a bar to any suit for subsequent damages. Fowle v. Railroad Co. 112 Mass. 334; Warner v. Bacon, 8 Gray, 397; Wheeler v. Worcester, 10 Allen, 591; Troy v. Railroad Co. 3 Foster, (23 N. H.) 83; Stodghill v. Railroad Co. 53 Iowa, 341; Hahn v. Miller, 68 id. 745; Freeman on Judgments, sec. 259; 1 Sutherland on Damages, 175; Whiting v. Clarendon, 18 Vt. 252; Hodsell v. Strallebrasse, 11 A. & E. 301; Railroad Co. v. Carey, 90 Ill. 514; Railroad Co. v. Maher, 91 id. 312; Powers v. Council Bluffs, 45 Iowa, 657; Railroad Co. v. Loeh, 118 Ill. 209; Railroad Co. v. Mihlman, 17 Kan. 224; Gas Co. v. Graham, 28 Ill. 73; Gas Co. v. Howell, 92 id. 19; Railroad Co. v. Grabill,
      50 id. 242; Cooper v. Randall, 59 id. 321; Railroad Co. v. McAuley, 121 id. 165.
    Mr. Freeman thus states this rule very clearly and forcibly: “All the damages which can, by any possibility, result from a single tort, form an indivisible cause of action.” And the same author further says: “For damages alone no action can be permitted. Hence, if a recovery has once been had for the unlawful act, no subsequent suit can be maintained.” ■ Freeman on Judgments, see. 241; Cadle v. Railroad Co. 44 Iowa, 11; Powers v. Council Bluffs, 45 id. 652; Stodghill v. Railroad Co. 53 id. 341; Hahn v. Miller, 68 id. 745; Troy v. Railroad Co. 3 Foster, (23 N. H.) 83; Fowle v. Railroad Co. 112 Mass. 334; Railroad Co. v. Grabill, 50 Ill. 241; Railroad Co. v. Carey, 90 id. 514; Railroad Co. v. Maher, 91 id. 312; Dutton v. Shaw, 35 Mich. 431.
    A former judgment, when admissible under the general issue, is as conclusive as if specially pleaded. Young v. Rimvmell, 2 Hill, 478; Offertt v. Johns, 8 Mo. 120; Whitney v. Clarendon, 18 Vt. 252; 1 Greenleaf on Evidence, see. 531; Vanlandingham v. Ryan, 17 Ill. 28; Jones v. Weatherbee, 4 Strobh. L. 50; Gray v. Gillilan, 15 Ill. 455.
    Messrs. Carter &. Govert, for the appellee:
    When an obstruction is illegal it will not be presumed to be permanent, and in an action for its erection and maintenance the plaintiff may recover for the damages up to the time of bringing suit, and this will be no bar to future actions for further injuries. Railroad Co. v. McAuley, 121 Ill. 160; Railroad Co. v. Loeb, 118 id. 203; Railroad Co. v. Maher, 91 id. 312; Railroad Co. v. Allen, 39 id. 205; Railroad Co. v. Grabill, 50 id. 242.
    The statute giving the right to cross streams of water, requires the company to restore the stream to its former state, or so as to leave its usefulness unimpaired. This makes it necessary to have the channel as free and unobstructed as it was before. Billinger v. Railroad Co. 23 N. Y. 32; Railroad Co. v. Moffitt, 75 Ill. 524.
    ■ In building bridges and culverts, railway companies are bound to anticipate and provide against “not only the natural rise and fall of the waters during the year, but also the floods and freshets which occur annually, or at longer periods or intervals, if regular, and which, from having been known to occur, might reasonably be expected to occur again.” Bochardt v. Boom Co. 54 Wis. 107; Mayer v. Bailey, 2 Denio, 433; Gray v. Harris, 107 Mass. 492; Railroad Co. v. Carr, 38 Ohio St. 448; Hoffman v. Water Co. 10 Cal. 413; Gould on Waters, 497.
    The rule in reference to acts amounting to a nuisance is, that every continuance is a new nuisance, for which a fresh action will lie; so that, although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the bringing of the action, provided such a period of time has not elapsed that the person maintaining it has acquired a presumptive right to do so. McConnel v. Kibbe, 29 Ill. 483; Holmes v. Wilson, 10 A. & E. 503; Bowyer v. Clark, 4 C. B. 236; Benomi v. Blackhouse, 1 EL., B. & E. 622; Whitehouse v. Fellows, 10 C. B. (N. Y.) 765; Plumer v. Harper, 3 N. H. 88; Polly v. McCall, 37 Ala. 20.
    When the extent of a wrong may be apportioned, from time to time, and does not go to the entire destruction of the estate, or its beneficial use, separate actions not only may, but must, be brought to recover the damages sustained. Wood on Nuisance, secs. 869, 865.
    The owner of the overflowed land may maintain successive actions when, as in the case of the destruction of crops from year to year, the wrong does not involve the destruction of the entire estate or its beneficial use; but recovery in a single suit, for any unauthorized use of the stream, is a bar to a subsequent action, where, as in the case of a permanent and complete deprivation of the use of the land, or of the water of the •stream, the injury is of a permanent character, and goes to "the entire value of the estate. Gould on Waters.
    When the successive actions lie, the Statute of Limitations is not a bar to an action for the continued flooding of land, Avithin the statutory period, although the first flowage may be ■barred. Spilman v. Navigation Co. 74 N. C. 675.
    A recovery for erecting a nuisance bars another action for "the erection, but not other actions for the continuance of the nuisance. Hodges v. Hodges, 5 Mete. 205; Staple v. Spring, 10 Mass. 72.
    When a stream "was obstructed wrongfully, and several years later this act caused the plaintiff’s land to be overflowed, it "was held that the Statute of Limitations ran only from the later event. Devery v. Canal Co. Irish R. 9 C. L. 194; Gould on Waters, sec. 210.
    In actions for injury to land by throwing back water upon it, and nuisances, only the damages actually accrued before action brought can be recovered, and any further damage must be recovered in a separate action when it actually accrues. Waggoner v. Jermaine, 3 Denio, 306; Baldwin v. Calkins, 5 Wend. 167; Philipp v. Terry, 42 N. Y. 313; Whitemore v. Bischoff, 5 Hun, 176; Duryea v. Mayor, 26 id. 120; Beckwith v. Griswold, 29 Barb. 291; Thayer v. Brooks, 17 Ohio, 489; Polly v. McCall, 1 Ala. Sel. Cas. 246; 37 Ala. 20; Stein v. Burden, 24 id. 130; Canal Co. v. Bowquin, 51 Ga. 378; 1 Hayw. (N. C.) 248; Carruthers v. Tillman, id. 501; Bradley v. Amis, 2 id. 399; Shaw v. Etheridge, 3 Jones, (N. C.) 300; Burnett v. Nicholson, 86 N. C. 99; Duncan v. Markley, 1 Harper, (S. C.) 276; Langford v. Owsley, 2 Bibb, (Ky.) 215; Cobb w. Smith, 38 Wis. 21; Hazeltine v. Case, 46 id. 391; Dorman v. Ames, 12 Minn. 451; McConnel v. Kibbe, 29 Ill. 483; Clark v. Mining Co. 6 Nev. 203. Also, to the Statute of Limitations. See Sutton v. Clarke, 6 Taunt. 29.
   Mr. Justice Magruder

delivered the opinion of the Court;

This is an action of case, begun on September 22, 1885, by the appellee against the appellant company, in the circuit; court of Adams county, to recover damages for obstructing; the natural flow of water in a certain water-course, called “Harkness Branch,” by maintaining a certain railroad bridge over said branch, so as thereby to throw the water upon plaintiff’s land and injure the same and'the growing crops thereon. Pleas of the general issue, Statute of Limitations and leave and license were filed to the declaration. There was no special plea setting up the judgment hereinafter named as a bar. The trial resulted in verdict for $500 in favor of plaintiff and judgment thereon, which judgment has been affirmed by the-Appellate Court.

On October 8,1883, William Schaffer, the present appellee, brought against the Chicago, Burlington and Quincy Eailroad Company, the present appellant, a suit for damages, resulting from the overflow of water in this same branch, alleged to have been caused by constructing and maintaining this same-bridge, which suit resulted in a verdict for $600 in favor of Schaffer, and a judgment upon said verdict rendered on May 5, 1884. The amount of this former judgment was paid to' appellee by the railroad company on July 17, 1885.

Upon the trial of the present suit the railroad company introduced in evidence the record of the former suit, including the prcecipe, summons, pleadings, verdict, judgment and Schaffer’s receipt for the amount of the judgment, and claimed that the verdict and judgment in such former suit constituted a bar to any recovery in this suit.

The certificate of the judges of the Appellate Court, by reason of which the case is brought before us, certifies-, that, in their opinion, “this case involves a question of law of such importance, on account of principal interests, as that it should be passed upon by the Supreme Court, that is, whether the former judgment between the parties is a bar to the present action, it appearing from the evidence that the structure complained of was imperfectly built, and that there was negligence in the mode of the construction of said bridge.”

While this court can not be confined to the consideration of a particular question that is specified in the certificate of importance, but, after the granting of such certificate, may consider any question of law properly arising upon the record, yet the only question, which we deem it necessary to discuss in the case at bar, is whether or not the judgment in the former suit between these same parties is conclusive of the issue in the present suit, it being admitted by the counsel for appellant, in their brief, that this is “the main question and the real bone of contention between the parties in this case.”

That this bridge was improperly constructed so as to obstruct the free passage of the water in “Harkness branch” is a question of fact, which is settled by the judgment of the Appellate Court. The bridge was built upon piles and was not a truss bridge such as might have been built so as to leave the stream unobstructed. The piles were set at an angle to the current of the stream and not in line with the current. The caps upon the piling were set obliquely to the line of the stream. The piles were from one foot to fourteen inches in diameter and about five feet apart. The timbers of the bridge, the caps, rails, ties and stringers were so arranged as to largely reduce the space for the water to pass under the bridge. The results of all these defects were, that brush, logs and other drift could not pass through without obstruction and were caught and held; that the channel, of the branch filled up with gravel, sand and sediment under the bridge and for some distance east and west of it, thereby lessening the depth of the channel; and that, in times of freshets, the water would be deflected from its natural course and would overflow upon the land of plaintiff and other adjoining owners.

Appellant claims, that the injury resulting from the construction of the bridge was a permanent one and depreciated the value of appellee’s land, and, consequently, that all damages for past and future injury to the property either were or might have been sued.for and recovered in the former suit, and that such former recovery is a bar to any further prosecution for the injury resulting from the erection and continuance of the nuisance. In other words, appellant invokes the aid of the doctrine laid down by this court in Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203, and in other cases therein referred to. But the “doctrine as to entireness of recovery in one action where the cause of injury is of a permanent kind,” is “limited to the case of a railroad built under authority of law and in a reasonably proper and skillful manner so as to avoid the infliction of all loss and injury not necessarily resulting from thus building and operating the road.” (Ohio and Mississippi Railway Co. v. Wachter, 123 Ill. 440.) In the case at bar, the bridge was not built “in a reasonably proper and skillful manner,” and the loss and injury have resulted from its improper construction.

We said in the Wachter case: “This court has never held, nor is it prepared to hold, that a railroad company is not liable for damages resulting from its negligence either in the construction, maintenance or operation of its road. * * * Public health and convenience as well as the positive law of the State alike demand that railways leading over natural streams and drain's should, by means of efficient and substantial culverts or otherwise, bé so constructed as to admit the escape of accumulating waters through them in times of high water as well as low.” In the case at har, the proof tends to show that, before the erection of the bridge complained of, the water in Harkness branch did not overflow its natural banks even in time of high water at the point where it passed appellee’s land.

Appellant’s right of way crossed the branch. The construction of a bridge over the branch was necessary to the operation of appellant’s road. If the bridge had been properly built, whatever injury it may have caused to appellee’s land would have been the necessary result of the existence of a necessary public improvement and would have been permanent in its character. The effect of the construction of the bridge upon the value of the land could he estimated at once, and it would answer all just purposes to allow but one action for the recovery of all damages.

But where the bridge has been imperfectly built and there has been negligence in the mode of its construction, the party, whose property is damaged, is not bound to assume that the structure will he a permanent one. . To indulge in such assumption would be to take it for granted, that the railroad company, having done a wrong, intended to continue in such wrongdoing.

Undoubtedly, if the injured party treats-the defective structure as a permanent source of injury and recovers the full amount of damages, both present and prospective, which his property sustains or may sustain by reason of such defective structure, he will he estopped from bringing a second action for damages. But where the railroad company has, as in this case, built an imperfect and faulty bridge over a stream of water, crossing its .right of way, a party suffering damage therefrom has a right to regard the nuisance as of a transient character, and, instead of bringing one action for the whole injury to the value of his property resulting from the original construction of the nuisance, he may sue for the amount of such injury as he suffers from its continuance. McConnel v. Kibbe, 29 Ill. 483.

The question then arises whether or not the record of a former recovery, introduced in evidence by appellant, showed a recovery for all the damages, present and prospective, which appellee’s property had suffered or might suffer from the erection and maintenance of the bridge.

The pleadings in the former suit do not present precisely the same issue as is presented by the pleadings in the present suit. The second count of the declaration in the latter suit alleges that the defendant “did to-wit: on May 1, 1884, etc., wrongfully maintain and continue a certain obstruction, etc., being duly requested to remove said wrongfully constructed obstruction to the free running and flowing of the water in said stream.” This count claims damages for the continuance of the nuisance. There was no such count in the declaration in the former suit. An action may be maintained for the creation of a nuisance, and a subsequent action may be maintained for its continuance. The continuance of that which was originally a nuisance is regarded as a new nuisance, and, although a recovery may be barred upon the original cause, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued, by reason of its continuance, within the statutory period. McConnel v. Kibbe, 29 Ill. 483.

An examination of the declarations in the former and in the present suit leaves it doubtful whether the subject matter involved in the latter was actually passed upon in the former, and, hence, it was proper to receive parol evidence to show the truth. Where a former recovery is relied on as a bar, parol evidence, not contradictory of the record, may, in case of such doubt, be introduced to show what was included within and investigated on the trial of the issue. If the face of the record does not show the full and true state of the controversy and the matters investigated, parol evidence must be admitted to supply what is not shown. (Vanlandingham v. Ryan, 17 Ill. 25; Barger v. Hobbs, 67 id. 592.) Greenleaf on Evidence, vol. 1, sec. 532, (14th ed.) says: “When a°former judgment is shown by way of bar, whether by pleading or in evidence, it is competent for the plaintiff to reply, that it did not relate to the same property or transaction in controversy in the action to which it is set up in bar, and the question of identity thus raised is to be determined by the jury upon the evidence adduced.”

The evidence introduced upon the trial of this ease tends strongly to show, and, indeed, seems to he undisputed by the appellant, that the damages recovered in the former suit were such as resulted from an overflow of water occurring before the beginning of such suit, and from injuries to crops then growing upon appellee’s land, and from injuries to about five acres of said land caused by the deposit thereon of drift, gravel, dirt, sand and stone; while the injuries, which form the basis of "the present recovery, have been caused by overflow's occurring since the institution of the former suit, resulting in the deposit of sand, stone, gravel, etc., upon nine acres of land, which do not include the five acres above mentioned, and resulting in the destruction of crops planted since the former suit was begun.

It follows, that, by the recovery of the present judgment, appellant is not required to pay the same damages twice.

The views herein expressed dispose of the various objections made by counsel for appellant to the instructions and to the introduction of evidence.

Some proof was introduced upon the trial below, which tends to show that fourteen acres of appellee’s land were damaged by the floods of 1884 and 1885, and that such four-, teen acres included the five acres, for the damage to which a recovery was had in the first suit. But the jury were sufficiently warned by the instructions, given for both appellant and appellee, against allowing any damages for injuries which formed the subject matter of the former recovery. The first instruction, given for the plaintiff, after directing the jury as to the assessment of damages, closes with the words: “Not including, however, any damages recovered in the first suit, the judgment in which is in evidence before the jury.” The second instruction given for plaintiff closes with the words: “Not including any damages recovered or claimed in the former suit mentioned in the evidence.” The fifth instruction given for the plaintiff contains the following sentence: “And the jury are instructed not to allow said plaintiff anything for or on account of damages done to Ms close, premises or crops on or prior to the 8th day of October, A. D. 1883.” The eighteenth Mstruetion given for defendant told the jury, “that the record of the former action * * * is conclusive agamst the plaintiff in this action as to all matters which were put in issue or offered in evidence on the first trial;” and the nineteenth Mstruetion given for defendant stated, that such record was conclusive as to all matters, which were put in issue on the trial of the former case, “no matter whether said Schaffer recovered all he claimed in such suit or not.” The twentieth Mstruetion given for defendant, which was prepared and asked for by defendant’s counsel, is as follows: “The court further instructs the jury, as a matter of law, that for damages accruing after a judgment in a former action between the same parties and arising out of the same cause, or resulting from one and the same Mjury, an action will not lie.”

We perceive no such error M the record as would justify us in a reversal of the judgment. The judgment of the Appellate Court is accordingly affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    David T. Littler v. William Jayne et al.

      Filed at Springfield March 28, 1888.

    1. Letting public oontkaots—of the advertisement—requirement as to description of work, materials, etc. Where public agents are required to let public work to the lowest responsible bidders, upon notice of the work or material required, such notice should give all the necessary information to enable parties desiring to bid, to make estimates. Eesort can not be allowed to merely verbal explanation, to ascertain substantially all that is contemplated to be done, as that might lead to favoritism and other mischief intended to be avoided by the statute.
    2. Same—under act of 1883 relating to completion of State House—of the contract for statues. The act of 1883, making an appropriation for the completion of the State House, provided that all contracts for labor or materials used in the work, requiring the expenditure of more than a given sum, should be let to the lowest responsible bidder or bidders, after advertising for bids or proposals at least thirty days, etc., and provided that all contracts entered into contrary to such act should be null and void. The State House commissioners let a contract for eight statues without having advertised for bids for the same, or giving notice of the materials of which they should be made, and other necessary information, to enable parties to bid understandingly: Held, that such contract being let contrary to law, was null and void, and that no voucher should be issued for the price agreed to be paid.
    3. Lapsing op appropriations— effect of a re-appropriation for the » same purpose■ Where the "amount of an appropriation of the legislature unexpended is, within the two years, re-appropriated for the same purpose as the original, there will be no lapse of such balance into the State treasury; and this court will take judicial notice of appropriations by the legislature.
    4. Injunction—misapplication of public money. A bill will lie at the suit of any tax-payer of the State to enjoin the action by public agents or officers which will lead to the misapplication of public money, or the payment of such money on illegal contracts, or without authority of law; and the fact that the Governor’s approval of their acts is also necessary to the payment of public money, will afford no sufficient reason against enjoining the illegal action of such public agents.
    Writ oe Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmer & Palmer, and Messrs. Greene & Humphrey, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Messrs. Patton & Hamilton, for the defendants in error.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill filed by the complainant, for himself and all other tax-payers of the State, to enjoin the defendants, State House Commissioners, from making, signing or approving Touchers for any expense incurred, under a certain contract therein mentioned, for the making of eight electro-bronze ■statues of public men of the State of Illinois, living and dead, and from using any portion of the money appropriated for the completion of the State House for the purpose of procuring or placing such statues in said building. Answer was filed, proofs taken, and on final hearing the bill was dismissed. The order of dismissal was affirmed by the Appellate Court for the Third District, and this writ of error was sued out by the complainant.

The grounds of the bill are, that the contract was let without advertisement for bids for the work, as required by law, and that the making of such a contract was in excess of the authority of the commissioners.

By two certain acts of the General Assembly of this State, one approved February 25, and the other February 27, 1867, (Laws 1867, pp. 162, 164,) provision was made for the erection of the new State House, at the capital of the State, and •commissioners were appointed to superintend the erection of the building. In 1883," the prior appropriations having been •exhausted, and the commissioners theretofore appointed, discharged, the General Assembly passed an act, approved June 14, 1883, (Laws 1883, p. 39,) appropriating $531,712, for the purpose of completing said building, and providing for the appointment of commissioners to superintend said work. Under this .act the defendants were appointed commissioners. Section 2 of said act of February 27,1867, provided that all contracts for labor or materials in the erection and completion of mid State House, requiring an expenditure of more than $500, ■should be let to the lowest responsible bidder or bidders, after .advertising for bids or proposals for the same, for at least thirty days, in two daily papers published in the city of Springfield .and in the city of Chicago, such advertisements to specify the time and place when and where the bids or proposals should be opened; that no bids or proposals should be opened at any •other time and place, and that all bids or proposals received by the commissioners for labor or materials, should be filed _ by the commissioners in the office of the Secretary of State, whether the same should be accepted or rejected. The last clause of section 1 of the act was as follows: “And all contracts made or entered into contrary to the provisions of this act shall be null and void.” By an amendatory act, approved June 14, 1871, (Laws 1871-2, p. 165,) said limit of $500 was extended to $2500, and the commissioners were “authorized, at any subsequent letting of the work, after having advertised in the manner now provided by law, to make and enter into contracts for the whole or any portion of the materials and labor that may be required in each class of work to be placed under contract, * * * and specified in their advertisement.”

The contract in question was made with Poulson & Eger, and is for eight copper-bronze statues, made by the galvanoplastia process, from models furnished, them, each to be ten feet high, for the sum of $7600. The cost of the models to be furnished by the commissioners was $2400, making the aggregate cost of the statues $10,000. All the advertisement there was in relation to the matter was the following, published in two daily newspapers of Springfield and Chicago, for more than thirty days prior to the letting of the contract to Poulson & Eger, viz.:

“Notice to Contractors.—Sealed proposals for finishing the unfinished portions of the Illinois State House will be received by the State House Commissioners, at their office in the Capitol building, at Springfield, until September 1, next, at twelve o’clock M., for the following parts of the work, viz.For all the cut stone and granite work; for all the marble finish and floor tiling; for the iron inner dome and other ornamental iron work; for the plain and ornamental plastering; for the carpenter work and hard-wood finish; for the plumbing and gas fitting.

“Full particulars as to the before mentioned work can be obtained at the office of the architect, W. W. Boyington, 157 La Salle street, room 107, Chicago, where the plans and specifications can he consulted until the time for receiving proposals. There will also he copies on file at the commissioners’ office, at Springfield, on and after August 15, 1885. The commissioners reserve the right to reject any or all bids.” (Signed by the commissioners.)

The time here fixed for receiving and opening proposals was extended to September 10, at twelve o’clock M., and notice thereof given by publication in like manner. The only specification relied on as showing anything in relation to the statues reads as follows:

“Railings and Facings.—The present iron and wood railings around the well-holes on the second and third floor under the dome will be taken away, and new railings, panel facings and curbing made in its place. Also, the same pattern will be made around the second floor of well-holes, the cast-iron to be of a quality and finish suitable to electro-bronze or bower burffwork, all of which must be executed in the most thorough and artistic style of work, according to the balance of work, as shown by plans and detailed drawings adopted September, 1885, and are now on file in the commissioners’ office.”

The statues are to stand, respectively, upon the eight corbels projecting from_ the wall of the inner dome. There was exhibited, in evidence, an elevation drawing, (not a detail drawing,) of the inner dome of the State House, which showed on one of these corbels an outline drawing of an imaginary female figure, which was, by the scale given, ten feet high and three and a half feet in width across the chest, and beside it, in lettered words, the statement that “eight corbels are now in place.”

This is all the evidence there is in the case going to show that the letting of the contract for these statues was advertised, as required by law. The item in the advertisement which is relied on by the defendants as embracing these statues, is: “For the iron inner dome and other ornamental iron work.” There is in this no mention of statues, and evidently no sufficient notice to attract the attention of, and invite bids and proposals from, persons engaged in the business of furnishing statuary. The advertisement refers to the plans and specifications, but the specification under the head of “Bailings and Facings,” which is relied on as helping out the advertisement, lends no aid in that respect, as it is equally wanting with the advertisement in the mention of any statuary. All that there is in the plans and specifications suggestive of any idea of statues, is the elevation drawing showing the outline of an imaginary female figure on one of the eight corbels. This might indicate to a competent architect that the eight corbels were to be supplied with figures of some kind; but as to their finish, the character of the work, of the material of which the figures were to be constructed, who was to furnish the models, no information whatever was afforded by this elevation drawing, nor by it taken in connection with the advertisement and specifications. These were elements as to which there was necessity of information, in order for the making of any intelligent bid or proposal for doing the work. This is not only obvious, but the whole testimony in the case, that of experts as well, is, that the advertisement, taken in connection with the plans and specifications and this elevation drawing, is wholly insufficient for the making of an intelligent bid for the construction of these statues in question; that in order to that, verbal explanation, in addition, would be requisite. And it is insisted that that is sufficient, if the needed information might have been obtained through verbal explanations. To allow such resort to verbal explanations for information, at least to the extent that would be necessary in this case, would be inconsistent with the policy of the statute requiring public notice to be given of the letting of contracts for public work, and would tend to the admission of the mischief the statute was designed to remedy. The object of the statute is, that there should be notice, in writing, of the work to be contracted for, given by publication, to secure full and fair competition and prevent favoritism. Verbal explanations might vary with different persons, and thereby bidders be made to stand not on the same equality, and there might, in this way, be afforded an opportunity for the exercise of favoritism. If an advertisement, “For the iron inner dome and other ornamental iron work” of the State House, may be eked out, by verbal explanations, so as to be made to include the work and materials' of eight copper-bronze statues made by the galvano-plastie process from models furnished the contractors, then the statute requiring that all contracts for labor or materials in the completion of the State House shall be let to the lowest responsible bidder, after advertising for bids or proposals for the same for at least thirty days in newspapers named, is a delusion.

The advertisement in this case was not only calculated to deceive and mislead the public, but it actually did have that effect. Mr. Mullins, of the firm of Bakewell & Mullins, of Salem, Ohio, whose business is manufacturers of metal statuary, testifies that he came to Springfield for the purpose of bidding on the ornamental iron work of the inner dome of the new State House; that he examined thoroughly the elevation drawings and specifications, and there was no mention whatever of statuary, although on one of the elevations was shown an outline tracing of a female figure; that he had no notice of the letting of any statuary, but, on the contrary, was informed by one of the commissioners, whom he met in a room in the Capitol building, where drawings were on exhibition, that the statues, the tracing of one of which was shown on elevation of inner dome, were to be made of plaster. He also testifies that had he known of the letting of this statuary, he would have bid for the same, as his firm were particularly anxious for that kind of work,—made a specialty of it. The witness Louis Pfaw, general manager of the ¿Etna Iron Works of Quincy, Illinois, testifies that he carefully examined the specifications, plans and elevation drawings in this case, in order to bid on certain portions of the iron work of the interior of the dome; that he could not bid, intelligently or otherwise, for the construction of these statues from the specification and elevation drawing; that the specifications and plans did not include or contemplate the construction of such statues.

It was important that the material of which the statues were to be made, should have been advertised, in order for intending bidders to be able intelligently to make their bids and proposals for the construction of the statues. It is obvious, as the proof shows, that the cost of the statues would be dependent upon the material of which they were composed, and would vary very greatly, according to the kind of material, whether marble, plaster, bronze, sheet-iron, cast-iron, cast-zinc, etc. Mr. McGreery, one of the commissioners, testifies: “We didn’t determine to put up these statues until after the contracts were awarded.” Mr. Boyington, the architect for the work of completing the building, testifies, that “it was not till after their bid (Poulson & Eger’s) was in, that we determined to adopt this particular kind of metal for these statues.” The original bid of Poulson & Eger, produced in evidence, bears date, “New York, September 9,1885.” The time limited for receiving and opening bids was September 10, 1885, at twelve o’clock M. The contract was actually let to Poulson & Eger, September 11, 1885. How is it possible to regard the contract here as let in compliance with the statute requiring that all contracts for labor or materials shall be let after advertising for bids for the same for thirty days, when the materials, the kind of which was of such vital consequence for the making of the contract in question, were not determined upon at the time of inserting the advertisement, and not until just before the opening of the bids and the letting of the contract ? How could work and materials not known and determined upon, be advertised and intelligently bid for ? The bid of Poulson & Eger was the only one made for the statues. The contract price, the proof shows, was some $2800 or $3000 more than the reasonable value. How could the kind of the material, the character of the work, who was to furnish the models, as described in the contract, have been ascertained and settled upon except through private negotiation ?

We regard this contract with Poulson & Eger for these statues as essentially a private contract made with them, and. not as having been publicly let in compliance with the statute, but let contrary to its provisions, and we must hold the same, therefore, to be null and void.

Exception is taken to the remedy here sought. It is said the bill is in effect to prevent the payment of public money, and that these commissioners have no public money in their possession or under their control. Although that may be, yet if the action of the commissioners which it is sought to have restrained would be an authority for, and undoubtedly lead to, the payment of public money thereunder, we think such action might properly be restrained, by way of prevention of the misappropriation of public funds.

It is said, the Governor’s approval of the commissioners’' vouchers is necessary for the drawing of any money thereunder, that such power of approval is a sufficient protection for the tax-payer, and that the injunction asked for would be an improper interference with the duty of the executive in the exercise of such power of approval. If it were a case where a gross and palpable breach of law was apparent, this power of approval might be a sufficient reliance against the making of any payment under an illegal voucher of the commissioners. But in a case of such doubt as appears here, there having been a contrary determination by two other courts, the Governor might take'the view that there wa% a judicial question involved, which might more properly be referred to the judicial department of the government to settle, and so add his sanction to what had been certified to by the commissioners under the responsibility of their official duty. We see no interference in the ease with executive duty. No occasion for executive action arises until vouchers from the commissioners are presented for approval. Enjoining the issuing of the vouchers is but the decision, by the court, of a judicial question properly presented to it, antecedent to any vouchers being issued. There is no requirement of law that vouchers shall be issued or shall be presented to the Governor for approval. Only, such vouchers and approval must be obtained before any money can be drawn from the treasury on the accounts of expenditure.

There is evidently nothing -in the point that all that part of the appropriation for completing the State House, made June 14, 1883, unexpended September 30, 1885, had, before this bill was filed, October 2, 1885, lapsed into the treasury, and could not be drawn therefrom by virtue of or under said act of June 14, 1883. There was, by the act approved June 29, 1885, a re-appropriation made of the same sum of money which was appropriated by the former act of June 14, 1883, so that there could not have been any lapse of money into the treasury. Although there is no reference in the bill to the act of June 29, 1885, we take judicial notice of it.

This whole proceeding of the commissioners with respect to the contract in question, we regard as one in misappropriation of the public money. Numerous are the cases in this court where suits have been sustained on the part of tax-payers to prevent the misappropriation of public funds. (Colton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 id. 160; Beauchamp v. Kankakee County, 45 id. 274; City of Springfield v. Edwards, 84 id. 626.) The present suit we consider one of this class. The issuing of the vouchers, asked to be restrained, if not a •direct act of such misappropriation, is one in the accomplishing thereof. If the vouchers are issued, there can be no reasonable doubt that payment under them will be obtained, and thus the misapplication of the public money be effected. If the vouchers he not issued, no public money can be drawn under the contract, and the restraining of their issue is in prevention of the misapplication of public funds. The remedy by injunction we think appropriate, and the only one adequate-for the case.

The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court of Sangamon county, for further proceedings in conformity with this opinion.

Judgment reversed.


text:
    The Village of Mansfield v. Lovina J. Moore.

      Filed at Springfield March 28, 1888.

    1. Municipal Corporation—sidewalks—duty to keep same in repair? though on private ground. Where the corporate authorities of a village-build" a sidewalk within the village limits, and treat the same as a public-sidewalk, and allow its use as such, the village will be liable for damages-for an injury resulting to a party from its neglect to keep the sidewalk in proper repair, although it may turn out that the sidewalk, at the place of the injury, is in fact on private property.
    2. Where village authorities assume to perform the same duty in respect, to a sidewalk, which is upon private property, as though it was a part of one of the streets, they will be bound to use the same degree of vigilance as they exercise in reference to other sidewalks within the corporate limits.
    3. Negligence—of the care required of the person injured, Where & plaintiff has observed ordinary care, he has, even if slightly negligent, observed all the care the law requires of him; and if he is injured by the negligence of another, that other will be held guilty of that degree of negligence for which the law charges responsibility.
    4. So where, on the trial of an action to recover damages resulting from a defective sidewalk in a village, the court instructed the jury that the village would be liable to the plaintiff for negligence in the construction or maintenance of said walks, if by reason of such negligence the plaintiff was injured while exercising ordinary care in passing over such walk, it was held, that, so far as the .question of negligence was concerned, the instruction was not erroneous, and that the failure to mention the subject of notice was not prejudicial to the defendant, when the necessity of notice was clearly-stated in other instructions.

      5. Same—degree of care as to sidewalks.. Oities and villages are only required to keep their sidewalks in a reasonably safe condition, and can only be held responsible for the failure to exercise ordinary care and prudence in that regard. An instruction which speaks of the duty of the village to “keep in repair the sidewalks,” is not erroneous because not qualified by the word “reasonable,” especially when the other instructions show the duty to keep the walks in “a reasonably safe” condition or state of repair.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Piatt county; the Hon. James F. Hughes, Judge, presiding.
    Messrs. Lodge & Huston, for the plaintiff in error:
    The first of plaintiff’s instructions tells the jury that the village is liable, though the walk was wholly on the Indianapolis, Bloomington and Western railroad land, and not in the street, and there is no evidence of that company’s consent io the walk on its land. It also holds the village liable for any degree of negligence, ever so slight, and ignores the question of notice entirely, which is clearly not the law.
    The fifth instruction was specially bad. It told the jury, without any limitation, that it was the duty of the defendant to maintain and keep in repair its sidewalks, and if they believed the plaintiff was injured by reason of the walk being ■out of repairs, to find for the plaintiff. All these instructions were erroneous. Chicago v. Bixby, 84 Ill. 82; Grayville v. Whitaker, 85 id. 439; Chicago v. McGiven, 78 id. 347; Chicago v. Watson, 6 Bradw. 344; Macomb v. Smithers, id. 470; Joliet v. Walker, 7 id. 267; Chicago v. McCulloch, 10 id. 459; Owen v. Chicago, id. 465.
    The second refused instruction should have been given. It presents the law as laid down by this court and the Supreme Court in many cases, and would probably have controlled the verdict, had it been given. Chicago v. McCcurthy, 75 Ill. 602; Joliet v. Walker, 7 Bradw. 267.
    It will not do to say the errors in the instructions are cured by those given for the defendant. It is a dangerous practice to give erroneous instructions for a plaintiff, and rely on the defendant’s instructions to correct or modify them. Railway Co. v. Rector, 104 Ill. 296; Railway Co. v. Shacklett, 105 id. 364; Railroad Co. v. Moffitt, 67 id. 431; Insurance Co. v. Crawford, 89 id. 62; Wabash County v. Hanks, 91 id. 406; Manufacturing Co. v. Peke, 12 Bradw. 506.
    Mr. Thomas J. Smith, and Mr. S. R. Reed, for the defendant in error:
    There is no exception to the rule, that when a city exercises control over a street or sidewalk, then the city would be liable for negligence in keeping it in repair, or in its construction. City of Champaign v. Patterson, 50 Ill. 61; Lafayette v. Larson, 73 Ind. 367; Gridley v. City of Bloomington, 68 Ill. 47.
    A sidewalk is a part of the street, and the establishment of a sidewalk is an act of the city. City of Bloomington v. Bay, 42 Ill. 503.
    In Gridley v. City of Bloomington, 68 Ill. 47, Justice Scholfield, in delivering the opinion of the court, used these words, to-wit: “The general rule is, that the occupant, and not the owner, as such, is responsible for injuries received in consequence of a failure to keep the premises in repair,” and that learned judge cites Cheatham v. Hampsen, 4 Durn. & East, 318, and other cases.
    As to the correctness of the fifth instruction, see McCombs v. Town Council of Akron, 15 D. 475; Delgen v. St. Paul, 14 Fed. Rep. 567, (U. S. Dig. 593;) Hiller v. Sharon Springs, 28 Humph. 344; Selma v. Perkins, 68 Ala. 145; Thomas v. Brooklyn, 58 Iowa, 438.
    The language of all the courts seem to be to the effect, that if the street or walk is under the control and management of the corporation, it having taken charge, and adopted it. as a street or sidewalk, then the corporation is liable for negligence in its construction or state of repair which causes injury to persons in the use of due care, to which proposition see Reinhard v. Mayor, 2 Daly, 243; Phelps v. Mankato, 23 Minn. 276.
    The defendant village in this case is estopped from denying that the sidewalk'in question is a legal'Sidewalk of the village. A town which, by its officers, expends upon a road the means provided by law to make and improve highways, in order to make them safe for traveling, proclaims to the world that such road is one of its public highways, and is thereby estopped from denying it to be so, in an action for the recovery of damages for injuries sustained through the neglect of its officers to keep such highway in repair. Codner v. Town of Bradford, 3 Chand. 291; Norton v. Kearny, 10 Wis. 443.
    . The doctrine of estoppel in pais is applicable to municipal corporations. Board of Supervisors v. City of Lincoln, 81 Ill. 156; Martel v. City of East St. Louis, 94 id. 67.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of trespass on the case brought in the circuit court of Piatt county by Lovina J. Moore against the village of Mansfield to recover damages for an injury alleged to have been received by the plaintiff by reason of a defective sidewalk. The cause was tried before a jury, who returned a verdict in favor of the plaintiff; motion for new trial was overruled, and a judgment rendered on the verdict, which has been affirmed by the Appellate Court. From the latter court the case is brought before us by writ of error.

The sidewalk, where the injury occurred, lies between a public highway or street of the village on the north and the track of the Indianapolis, Bloomington and Western railroad on the south. It runs westward from the business part of the village to the platform of the railroad depot and is the main walk or passageway for persons going from the depot to the village and from the village to the depot.

It is admitted that the sidewalk in question is built upon a part of the right of way of the railroad company, which lies just south of the public highway or street already mentioned. All the facts are settled by the judgment of the Appellate Court.

The main question of law, presented by the record, arises upon the first instruction given for the plaintiff, and is whether the village is relieved of liability for the accident by reason of the fact that the sidewalk was upon the right of way of the railroad and was not a part of the street.

The proof is undisputed that the sidewalk was within the corporate limits of the village and was built and established by the village officers, and that they assumed control of it and undertook to keep it in repair. The burden of the defence made by the village was that its officers had done their duty both in properly constructing the sidewalk and in keeping it in proper condition for use. The corporate authorities treated it as a public sidewalk, took charge of it as such and permitted the inhabitants to make use of it as such. There is no evidence, that the railroad company ever objected to its being laid upon the right of way, or ever denied the authority of the corporation to put it there and maintain it after it was built.

Under the circumstances thus detailed the village was liable for damages if injury resulted from its neglect to keep the sidewalk in a reasonably safe condition. To hold otherwise would be to relieve the corporate authorities of a just measure of responsibility. They so acted in reference to the sidewalk as to hold it out to the people as a public thoroughfare. They invited the public to use it as belonging to the village. Having assumed to perform the same duty in regard to it as though it was a part of one of the streets, they were bound to use the same degree of vigilance as they exercised in reference to other sidewalks within the limits of the corporation. These views "are sustained, by the following authorities: 2 Dillon on Corp. (3d ed.) sec. 1009; Sewell v. City of Cohoes, 75 N. Y. 45; City of Joliet v. Verley, 35 Ill. 58; City of Bloomington v. Bay, 42 id. 503; City of Champaign v. Patterson, 50 id. 61; Gridley v. City of Bloomington, 68 id. 47.

Counsel for plaintiff in error complain further of the first instruction given for the plaintiff because it told the jury that the “village would be liable to the plaintiff for negligence in the construction or maintenance of said walk, if, by reason of such negligence, the plaintiff was injured while exercising ordinary care in passing over such walk.” Counsel say: “The instruction holds the village liable for any degree of negligence ever so slight, and ignores the question of notice entirely.”

So far as the question of negligence is concerned, the language of the instruction was not erroneous under the rule laid down in Calumet Iron and Steel Co. v. Mantin, 115 Ill. 358. It required the jury to find that the plaintiff was exercising ordinary care and that the defendant was guilty of such negligence as produced the injury. There is no claim nor is there any proof tending to show, that the plaintiff was guilty of contributory negligence. We held in the Man-tin case, that where one has observed ordinary care, he has, even if slightly •negligent, observed all the care the law requires of him, and that “where, having observed this care, he is injured by the negligence of another, that other has been guilty of the degree of negligence, for which the law charges responsibility.”

In several instructions given both for the plaintiff and defendant the jury were correctly instructed in regard to the subject of notice. They were told that the plaintiff could not recover, unless the village had actual notice of the defective ■condition of the sidewalk, or unless the alleged defect was of such a nature and had existed for such a length of time before the injury happened, that the village officers could have discovered it by the exercise of reasonable care and diligence. The instructions must be read together and are to be regarded as a single charge. The failure to mention the subject of notice in one instruction could not have prejudiced the defendant in view of the fact that the necessity of notice, either actual or constructive, was so clearly insisted upon in other instructions in the series.

The objections to the second and third instructions given for the plaintiff, relating as they do to negligence and notice, are disposed of by suggestions already made in regard to the first instruction.

The fifth instruction for the plaintiff, which is mainly devoted to the definition of constructive notice, speaks of the duty of the village “to maintain and keep in repair the sidewalks.” It is complained of because the word “repair” is not qualified by the use of the word “reasonable.” It is undoubtedly the law that cities and villages are only required to keep the sidewalks in a reasonably safe condition and can only be held responsible for the failure to exercise ordinary care and prudence. (Town of Grayville v. Whitaker, 85 Ill. 439; City of Chicago v. Bixby, 84 id. 82.) And such was held to be the law in this case. In the third instruction for the plaintiff the court told the jury, that “the law requires cities and villages to construct such sidewalks as they build in such manner as to be reasonably safe in their use, and also to keep and maintain the same in a reasonably safe condition.” The sixth instruction for the plaintiff directed the jury to determine, whether the sidewalk, at the point where the injury occurred, “was or was not constructed so as to he reasonably safe,” etc. The second instruction given for defendant stated, that villages were not “insurers against accidents on their streets or sidewalks.” The eighth instruction given for defendant told the jury, that “the burden of proving that the sidewalk * * * was not in a reasonably safe condition * * * was upon the plaintiff,” etc. Therefore, if the failure to use the word “reasonable” before the word “repair” in the fifth instruction was an error, its frequent and prominent use in other instructions made the error a harmless one.

Moreover, where the word “repair” is used, as here, without any qualifying word, the jury are as much authorized to construe it to mean “reasonable repair,” as to regard it as indieating a higher and more perfect state of repair. Millwood Coal and Cohe Co. v. Madison, 2 Atlantic Reporter, (Pa.) 39.

As to the four instructions asked by defendant which were refused, all that was material in the first and second was contained in instructions which were given, and the third and fourth were erroneous as announcing that the location of the sidewalk on the right of way of the railroad relieved the village from liability for the injury suffered by plaintiff.

We perceive no material error in the record, and, as the case has already been tried three times, we are not disposed to look with favor upon such slight mistakes as could not possibly have prejudiced the plaintiff in error.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    John Dolese et al. v. Daniel A. Pierce.

      Filed at Springfield March 15, 1888.

      1. Statutes—amendatory acts—how far limited to the subjects of the acts proposed to be amended. An act to amend certain sections of a prior act whose title is mentioned, will relate to the same general subject, and there can be no valid provisions in either act which do not relate to that subject.
    2. An act to amend certain sections of a general law is limited in its scope to the subject matter of the sections proposed to be amended. In such case, the introduction of any new substantive matter not germane or pertinent to that contained in the original sections, can not be regarded as an amendment thereto, but must be regarded as independent legislation upon a matter not embraced in the title of the act, and therefore void.
    3. The amendment of an act in general, or of a particular section of an act, ex vi termini, implies merely a change of its provisions upon the same subject to which the act or section relates.
    4. Same—title of the amendatory act of 1874 “to revise the law in relation to township organization”—scope of the act, as affecting the boundaries

      of cities and milages—constitutionality. The act entitled “An act to amend sections 2, 4, 6, 7, 10, 11 and 12, of article 3, of an act entitled ‘An act to revise the law in relation to township organization,' approved and in force March 4, 1874,” in so far as it attempts to change the boundaries of cities and incorporated villages, is in violation of section 13, article 4, of the State constitution, as embracing more than one subject.
    5. The act mentioned expressed in its title that it was to amend certain sections of an act in relation to township organization, which sections provided for the making of new towns from old ones, changing town boundaries, and the division and consolidation of towns and parts of towns, but they did not profess to relate to incorporated cities or villages in any manner. The amendatory act, after providing in respect to towns, and changes therein, directed that when the town to which new territory should be annexed is wholly within the limits of a city, the city limits shall be extended to include the territory so annexed: Held, that the act, in so far as it assumed to provide for a change in the boundaries of cities and villages, that subject not being embraced in the title of the act, was in violation of article 4, section 13, of the constitution.
    G. Any provision in an act which has not a tendency to promote the object and purpose of the act to which it belongs, is clearly obnoxious to the constitutional provision.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. James P. Root, for the appellants:
    The act in question is void because it embraces more subjects than are expressed in the title. (See. 13, art. 4, Const. 1870.) The title embraces nothing but the subject of townsliip organization, while the act assumes to legislate on the subject of cities and villages, and the subject of annexation as applied to them, as well as on various other subjects not germane to the subject expressed in the title.
    Mr. Sidney Smith, also for the appellants :
    The statute, so far as complained of, is in violation of section 13, article 4, of the constitution. O’Leary v. Cook County, 28 Ill. 534; People v. Mellen, 32 id. 181; People v. Protestant Deaconesses, 71 id. 229; Railway Co. v. Lake View, 105 id. 207.
    In determining the powers of the county board, this statute should be strictly construed against the power claimed. In case of reasonable doubt, it should be construed against the power. Dillon on Mun. Corp. sec. 55, and cases cited in note; Mather v. City of Ottawa, 114 Ill. 659.
    This board must strictly pursue the methods prescribed by this statute. It can exercise the powers expressly granted only in the manner prescribed by the statute. There can be no dealing in equivalents. Fitch v. Pinckard, 4 Scam. 69; Hardin v. McFarlan, 82 Ill. 138; People v. Village of Crotty, 93 id. 180.
    Mr. John N. Jewett, also for the appellants.
    Mr. Henry V. Freeman, also for the appellants:
    The act itself not having been complied with, the board had no power to call an election, and its action was void. Marshall County v. Cook, 38 Ill. 48; Force v. Town of Batavia, 61 id. 102; People v. Cline, 63 id. 397; Harding v. Railroad Co. 65 id. 90; Willianns v. Town of Roberts, 88 id. 11; Gaddis v. Richland Co. 92 id. 119; Richland v. People, 3 Bradw. 210; Chambers County v. Clews, 21 Wall. 317; Lamier v. Padgett, 18 Fla. 842.
    The jurisdiction of the county board is limited by the terms of the statute itself, and it must appear that the statutory preliminaries had been complied with where jurisdiction is limited. Prosser v. Secor, 5 Barb. 610; Stone v. Miller, 62 id. 442; Harrington v. People, 6 id. 608; Walker v. Mosely, 5 Denio, 102.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The legislature, at its last session, passed an act entitled “An act to amend sections 2, 4, 6,7,10,11 and 12, of article 3, of an act entitled ‘An act to revise the law in relation to township organization,’ approved and in force March 4, 1874.” (Laws of 1887, p. 300.) By the 12th section of the act as amended, it is provided that “the county board of each county shall have full power and jurisdiction to unite into one, two or more contiguous towns, whether incorporated under any special or general act, or organized under this act, and to disconnect territory from one of such towns and annex the same to another; but no such towns shall he united, nor shall territory be taken from one such town and at the same time annexed to another, except in the following manner.” The act then proceeds to prescribe the manner of carrying its provisions into effect, after which occurs the following proviso: “And provided, that -where said town to which such territory is annexed is wholly within the limits of an incorporated city, the limits of said city shall thereupon be extended to include the territory annexed to such town.” Pursuant to the provisions of said section, on the 3d of October, 1887, a petition, signed by the requisite number of legal voters of the town of Hyde Park, was presented to the board of commissioners of Cook county, praying that a specifically designated portion of said town be disconnected therefrom and annexed to the adjoining town of . South Chicago, both of which towns lie in the county of Cook, and the latter wholly within the corporate limits of the city of Chicago. The county authorities, under the provisions of the act, submitted the matter, as therein directed, to a vote of the people of the two towns, and upon a canvass of the votes cast, the requisite majority was found to be in favor of the proposed change in the boundaries of said towns, and it was so declared. The corporate authorities of Cook county, and of the city of Chicago, have both officially recognized the alleged new order of things, and the latter are now exercising municipal jurisdiction over that portion of the town of Hyde Park claimed, by virtue of said proceedings, to have been disconnected therefrom and made a part of the town of South Chicago. The village of Hyde Park, which was incorporated under the general law in 1872, and whose territorial limits and municipal jurisdiction, prior to said proceedings, were co-extensive with the town of Hyde Park, does not acquiesce in the action taken by the two towns and the county board, in so far as it is sought to affect its own jurisdiction and powers as an incorporated village within the alleged disconnected territory, but disregards such action altogether.

After the disconnection and annexation proceedings were consummated, which occurred on the 3d day of December, 1887, the village of Hyde Park, not regarding such action as binding upon it, ordered certain improvements to be made upon some of the streets in the alleged disconnected territory which appellants claim is still a part of said village. The contract for the work on the streets was let to John Dolese and Jason H. Shepard. The work, amounting to $600, was satisfactorily performed, the claim properly audited and certified as correct, and by order of the board of trustees, a warrant for the amount was drawn on the village treasurer, signed by the village clerk, and only wanted the signature of Daniel A. Pierce, the president of the board of trustees, to make it a valid voucher for the payment of the claim, provided the village of Hyde Park, as claimed by it, is unaffected by said annexation proceedings. The president refused to sign the voucher, on the sole ground that the streets on which the work was don,e were not within the territorial limits or jurisdiction of the village of Hyde Park, and that said village consequently had no power or authority to incur the indebtedness in question. The contractors, Dolese and Shepard, thereupon filed a petition for a mandamus, in the Superior Court of Cook county, against Pierce, to compel him to sign said warrant on the treasurer. The Superior Court, on demurrer to the petition, held it insufficient, and entered an order dismissing the same at the petitioners’ costs, from which order the present appeal is prosecuted.

After perfecting the appeal in this court, a motion was filed therein to dismiss the suit, on the ground that it had been eollusively brought, and was not being prosecuted in good faith. This motion was reserved for the hearing of the cause on its merits. We do not think that the proofs offered in support of the motion are sufficient to sustain it, and it must therefore be overruled.

The main question to be considered is the validity of that part of the act of 1887 under and by virtue of which it is claimed that the greater part of the village of Hyde Park, with all its property and improvements, has been transferred to and made a part of the city of Chicago. There are other grave and important questions presented by the record, but in the view we have taken of the one stated, it will not be necessary to notice them.

Section 13, article 4, of the present constitution, among other things, provides, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in its title; but if any subject shall be embraced in an act, which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be so expressed.” It is earnestly insisted by appellants that the act of 1887, in so far as it attempts to deal with cities or villages by limiting or extending their territorial boundaries and jurisdiction, is obnoxious to this provision of the constitution; that the legislature, in attempting to accomplish these objects, has introduced into the act a distinct, independent subject, which is neither embraced in its title nor germane to that which is embraced in it.

After a very careful examination of the act and all the authorities cited in the briefs, besides many others not referred io by counsel, we feel constrained to hold, as we do, that the act of 1887 is, in the respect stated, unconstitutional and void. As the title of the act of 1874 is included in and constitutes a part of the title of the act of 1887, it follows that both acts relate to the same general subject of “township organization,” and consequently there can be no valid provisions in either which do not relate to that subject. But it does not follow that the subject of each act, in a constitutional sense, is necessarily co-extensive with such general subject, for restrictive terms are found in the title of the latter act which do not a]Dpear in the first, and which materially limit its scope and purpose. The act of 1874, as appears from its title, extends to a revision of the entire law then existing, relating to township organization, while that of the act of 1887 is expressly limited to the amendment of certain specified sections of the law as revised by the former act. This being so, it is clear that the scope of the act of 1887 is limited by the subject matter contained in the amended sections before amendment, for to introduce any new substantive matter not germane or pertinent to that contained in the original sections, could, in no proper sense, be regarded as an amendment of them, but would manifestly be additional, independent legislation upon a matter not embraced in the title of the act, and consequently void.

The amendment of an act in general, or of a particular section of an act, ex vi termini, implies merely a change of its provisions upon the same subject to which the act or section relates. These propositions are so elementary in their character as-to require neither argument nor citation of authority in their support.

Turning to the amended' sections, as they appear in the act of 1874, it will be found that they treat exclusively of making new towns out of old ones; re-adjusting the boundary lines of adjacent towns, by detaching territory from one and adding it to another; the uniting of two contiguous towns into one, and of the manner of accomplishing these objects, including the adjustment of the property rights and liabilities of the towns affected. There is no attempt in either of the sections to deal with cities or villages in any manner whatever. Indeed, the word “city,” or “village,” does not even so much as incidentally occur in said sections, or either of them, nor is the slightest allusion to be found in them on that subject. This being so, upon what principle or show of reason can it be contended that the provision in the act of 1887 which attempts to deal with cities and villages, is, in any sense, an amendment of the-sections named in the former act ? Or how can it be seriously-contended that such a provision relates to township organization ? And yet, both these propositions must be maintained in order to sustain the provision in question.

It is said, however, that legislation affecting the boundaries of cities and villages is germane to that affecting the boundaries of townships. But counsel have failed to tell us in what way or sense the one is germane to the other, or what meaning they attach to that term in giving a construction to the provision of the constitution in question. Literally, “germane” means “akin,” “closely allied.” It is only applicable to persons who are united to each other by the common tie of blood or marriage. When applied to inanimate things, it is, of course, used in a metaphorical sense, but still the idea of a-common tie is always present. Thus, when properly applied to a legislative provision, the common tie is found in the tendency of the provision to promote the object and purpose of the act to which it belongs. Any provision not having this tendency, which introduces new subject matter into the act, is clearly obnoxious to the ponstitutional provision in question. It is an error to suppose that two things are, in a, legal sense, germane to éach other merely because there is a resemblance between them, or because they have some characteristics common to them both. One might, with just as much reason, contend that two persons are necessarily akin because they are of the same complexion, or in other particulars alike.

Under the title of the act of 1887-, the legislature had the right to provide, as it did, for the change of township boundaries, but this right did not carry with it, as an incident, the power to change the boundaries of cities and villages, unless the change of the latter was necessary to effectuate a change of the former, or at least to promote such object, and nothing of this kind is pretended. The only thing claimed,—or which can be truthfully claimed,—is, that there is some resemblance, -or that there are common characteristics, between townships .and cities and villages. But this is equally true of all corporate bodies. While townships are regarded as municipal •corporations, in the general sense of that term, yet they stand upon a plane altogether different from that occupied by cities and villages. The latter are possessed of a much higher order •of corporate existence than the former, and differ from them in many essential particulars. They are, in law and in fact, as distinct from one another as any two artificial beings could be, whatever their supposed resemblances may be. This is ■equally so with respect to their organization and jurisdiction. In the exercise of the powers conferred upon them, they act wholly independently of each other, even where their jurisdiction extends over the same people and territory. Looking at the provisions of the amendatory act of 1887, which relate exclusively to townships, we find nothing there which was not fully provided for in the act of 1874, and consequently fail to discover the object or purpose in amending the latter act. It is only when we turn to those provisions relating to cities and villages that such object and purpose become apparent.

Looking at the act as a whole, jt is difficult to repel the conviction that it is nothing more than a method of extending, almost indefinitely, the limits of the great cities of our ‘State without consulting the people living in them, or at least but a ■small portion of them, and all this without a word in the title ■of the act to indicate such a purpose. By the proceedings under the act, if sustained, the territorial limits of the city of ■Chicago have been more than doubled by the addition of some ■thirty-seven square miles of new territory. The rich and prosperous village of Hyde Park has been practically destroyed as a separate municipality. The most valuable part of it has been transferred to and made a part of its great and populous .neighbor. But with the territory thus transferred to the city, •the act generously transfers along with it the village ordinances regulating and restraining the sale of intoxicating liquors, whereby the city has acquired the peculiar, though somewhat anomalous, distinction of having one code of ordinances for one part of its territory and a different code for the remaining, part. The act also contains elaborate provisions for the establishment and maintenance of park districts. And yet all this is done and proposed to be done under an act whose title is limited to the simple and apparently harmless purpose of amending seven sections of the township organization law, relating to the change and re-adjustment of the boundaries of townships! It is difficult to conceive of a title that more effectually concealed the real object and purpose of an act than the present one does. The constitution forbids and condemns all such devices. Whether intended to he so or not, they are-frauds upon the legislature and the people of the State. That the act of 1887, to the extent stated, is unconstitutional and. void, is conclusively shown by the following authorities: Lockport v. Gaylord, 61 Ill. 279; People v. Institution of Protestant Deaconesses, 71 id. 229; People v. Mellen, 32 id. 181; Welch v. Post, 99 id. 471; North Chicago City Railway Co. v. Lake View, 105 id. 207.

To the suggestion, that as the new order of things is an accomplished fact, great inconvenience will result from holding-the act unconstitutional, it is sufficient to say, that however great the inconvenience, it is far better that it should be borne-than to have the constitution trampled under foot, and one of its main safeguards against fraudulent legislation frittered! away. Whatever difficulties may he encountered in the readjustment of matters, are probably attributable, in a large degree, to hasty action, and that, too, in the face of litigation instituted for the purpose of testing its legality. • This court can not afford to permit itself "to be embarrassed or handicapped in the decision of a grave constitutional question by considerations of this kind. The highest duty and most sacred function of this court is to protect and enforce the constitution, regardless of all real or imaginary inconveniences that may result from doing so.

The judgment of the Superior Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Sheldon C. J., and Scott J., dissenting.