text:
    Clovis Soucy v. The People ex rel. Nicholas McCracken.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Officer—holding over until his successor is elected and qualified. A person elected to .an office for a stated time, and until his successor should be elected and qualified, may lawfully hold over until his successor is elected, etc., without being guilty of usurpation of office.
    2.. Elections—fraud and violence—as affecting the rights of one seeking to profit thereby. A person will not be allowed to maintain quo warranto against an officer holding over, on the ground that the former claims to have been elected and to .have qualified as his successor, when it appears from the evidence that the only title of the relator to the office was acquired through-fraud and violence at the polls. In such ease the court will not aid him in attempting to receive the emoluments of the office.
    3. At an election for supervisor, three persons came to the window where votes were taken, and offered their ballots and affidavits, when the partisans of one of the candidates knocked them down and drove them away, and would not allow any one to vote except for their candidate, and thereby deterred others from offering to vote, and the votes of the three persons so driven away were received by one of the judges at a back door, which, if counted) reelected the then present supervisor. On quo warranto by the candidate against whom those three votes were counted, to oust the incumbent, it was held, that the relator could not be allowed to show that the three persons against 'whom the violence was used were not legal voters; as that was a question for the judges of the election to decide, and not for the people, or partisans of the candidate, and his partisans having prevented such decision, he should not be allowed to raise that question.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the- Circuit Court of-St. Glair county; the Hon. Amos Watts, Judge, presiding.
    Mr. G. Koerner, and Mr. John B. Bowman, for the appellant.
    Mr. R. A. Halbert, and Mr. M. Millard, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

On the 3d day of March, 1884, an election was held in the village of Cahokia, for a supervisor, under laws that seem to be especially applicable to that village. It has been held by this court in Bernier v. Russell, 89 Ill. 60, the election law governing, political elections has no application to elections to be held for village officers. No previous registration of voters is necessary, nor is any ballot-box essential. Such election may be by ballot, or viva voce, as may be determined by the judges of election, or, perhaps, by the villagers themselves. It is a matter of no consequence which mode is adopted. The essential thing is, that .every villager having the legal qualifications to do so may have an opportunity to vote, and when he has voted, his vote should be counted.

At the election held on the 3d day of March, 1884, there were but two candidates for the office of supervisor,—viz, the relator, Nicholas McCracken, and the respondent, Clovis Soucy. The judges of the election made a certificate, in which they stated, in substance, that at such an election, of the total number of voters who voted at such election, including the three voters who were driven away by outside parties from the front window, and who thereupon voted at the back door of the polling place, the respondent, Clovis Soucy, received thirty votes for the office of supervisor, and relator, Nicholas McCracken, received twenty-nine votes for the same office, and that accordingly Clovis Soucy was elected supervisor. It is shown that the three votes received at the back door of the room occupied as a polling place were never deposited in the ballot-box used on that occasion, as were all the other votes cast at such election, and it is insisted for that reason they should not be counted. Rejecting these three votes, the relator would have a majority of all the votes cast, and therefore claims that he was duly elected supervisor. Each candidate attempted to qualify by taking the usual oath of office, and giving the bond or bonds required by law, but whether either or both of them conformed to the law in so doing will not become material, in the view taken of the ease. As respondent, Soucy, had previously been supervisor, and was in possession of such office, he seems to have continued therein, and the information in this case, in the nature of a quo warranto, was then filed in the name of the People, on the relation of McCracken, commanding respondent, Soucy, to show cause why he had usurped, and continued to usurp and hold, the office of supervisor. By way of justification respondent pleaded, in the first place, first, alleging his own election as supervisor of the village on the first Monday of March, 1884, for the period of two'years; that he had received the certificate from the judges and clerks of that election, of his own election, and that he had since qualified, and has been acting as such supervisor; and second, denying the election and qualification of relator to the same office. After-wards, respondent filed two other pleas, by way, also, of justification, in one of which he alleged his election and qualifying to the office in question on the first Monday in March, 1882, for two years, and until his successor should be elected and qualified, and that no one has since been elected, and no one has qualified as such supervisor since that time, and in the other he alleged his election and qualifying to the office in question on the first Monday in March, 1880, for two years, and until his successor should be elected and qualified, and that no one has since been elected, and no one qualified as such supervisor since that time. Issues were formed upon all these pleas, and on the trial" the circuit court pronounced a judgment of ouster.

There is one reason, not affecting the merits of this case, however, why the present judgment can not stand. The affidavit filed by the respondent for a continuance was sufficient in every respect, and as the evidence sought was pertinent, the court should have either continued the case or required the relator to admit it, and allow the same to be read as evidence. The failure to do so was clearly error.

But the judgment of reversal need be placed on no technical ground. There is no question made that respondent was duly elected and qualified as supervisor of the village on the first Monday of March, 1882, for the period of two years, and until his successor should be elected and qualified, and unless a successor has since been elected and qualified he can continue to' exercise the functions of such office. Conceding, then, the fact respondent has shown lawful right to the office of supervisor, he can not be guilty of usurpation Of its functions. The relator claims he was elected the successor of respondent at the election held in the village on the first Monday of March, 1884, and that he has since qualified. Amid the circumstances proven in this ease it would be inequitable to permit the relator to have the relief sought, and the law will afford him no aid to secure an office the only title to which, it appears from the evidence, he acquired through fraud and violence at the polls.

It appears from the evidence in the record, that at the election at which relator claims to have been elected the successor to respondent, when the three persons came to vote whose ballots were not placed in the ballot-box, they were assaulted by the partisans of the relator and driven from the front window where voters were expected to hand in their ballots, and one of the judges testified that one man stood at one side of the window, that another stood at the other side, and- when the three voters came up one of them said, “knock down * * * he is a stranger here;” and that he was about to take the ticket and affidavitJ!rom one of them at the window when they knocked him into the • middle of the road; “they knocked him in the street, and they went around to the back door and handed me the affidavits and ticket, and I took them.” All the judges of the election testified substantially to the same fact. It is said these three persons were not legal voters, and for that reason their votes ought not to have been received or counted. That was a question for the judges of the election to determine, and not for the people on the outside. Had there been no interference by the alleged partisans of the relator, the legality of the votes offered by these three persons could have been passed upon by the judges, and if found lawful they would have been deposited in the ballot-box with other ballots; or if found illegal, they would, no doubt, have been rejected. Having prevented by actual violence that question from being passed upon, it does not now lie in the mouth of relator to say they were not legal voters. The tribunal established by law for that purpose ought to have been suffered to decide that question for themselves in a lawful way. The respondent offered to prove by witnesses whose names are given in the affidavit for continuance,—and it will be presumed he could have done so had he been allowed an opportunity,—that the adherents of the relator were during the day very noisy and turbulent; that they took and held possession of the window at which the voting was to be done, in front of the building where the election was held, and insulted and abused and intimidated those desiring to vote, or did vote, for respondent, and that from and after four o’clock in the afternoon the adherents of relator obstructed the approach to the window, and allowed none to vote for respondent; that John B. Vien and his son were legal voters in the village at such election, but fearing to be insulted, abused and injured if they attempted to exercise their franchise at the front window, went to the back door and handed their ballots to the judges of the election; that Vien saw the adherents of relator attack and assault and beat one Henry Brown, a resident of Cahokia for about eighteen years or more, because he attempted to vote for respondent; that the witness Vien saw other inhabitants desirous of voting for respondent, assaulted and beaten by partisans of relator; that the crowd of relator’s adherents at the polls were heavily armed,—many carried clubs, and at least twenty of them pistols, which were flourished, while none of respondent’s adherents displayed arms of any sort, and that Yien would testify that the three persons whose ballots were taken were inhabitants of Cahokia, and under the law entitled to vote at such election. The election, under the circumstances proven and offered to be proven, can find no sanction in the law, and an officer claiming to have been elected at such an election will get no aid from the courts to get possession of such office. Fraud and violence in conducting an election will not be tolerated. A title to an office arising out of such an election will find no support in the law, and the courts will be careful not to lend their aid to give a party so elected the emoluments of such office. Surely courts will not aid a party to avail of that which he has obtained through wrong and violence, in utter disregard of public and private rights. Although not analogous, the previous decisions of this court sustain, to some extent, this view of the law: People v. Waite, 70 Ill. 25; People v. Moore, 73 id. 132; Frick v. Trustees, 99 id. 167.

It will not, therefore, be necessary to determine whether respondent was elected his own successor at the election in March, 1884. It is certain no one, in the language of the plea, whose election the law will tolerate, has been elected his successor, and he may therefore hold his office under the law until his successor shall have been elected and qualified. In view of what has been and what was offered to be proven, what was said by this court in People v. Waite, may here be repeated: “These facts make it inequitable that he (relator) should have the remedy (quo ivarranto) sought, ” and the circuit court, in the exercise of a sound discretion, ought to have found defendant not guilty.

The judgment of the Appellate Court will be reversed, and the cause remanded, with direction to reverse the judgment of the circuit court and remand the cause.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. Catharine Coble.

      Filed at Springfield

      January 31, 1885.

      1. Practice—time to object—for variance between allegations and proofs. This court will not consider a question of variance in the allegations and proofs, when no motion has been made in the trial court to exclude the evidence on the ground of variance, or for an instruction to the jury in respect of the same.
    2. Appeal—reviewing facts. Where this court can not say the evidence heard on the trial of an action for negligence does not tend to sustain the judgment, the action of the Appellate Court in affirming the judgment of the trial court is conclusive on the disputed questions of fact.
    3. Allegations and proofs — on the question of negligence. The object of written pleadings is to apprise the defendant of the ground of action relied on by the plaintiff, and thereby afford him an opportunity to meet the specific ground of complaint, and it is not admissible that one ground of negligence be alleged and a recovery be had upon another and distinct ground. It is error to instruct the jury that they may find the defendant liable for any acts of negligence different from those alleged in the declaration.
    4. So in an action against a railway company to recover for damages for a personal injury, at a public crossing of a street, the court instructed the jury, for the plaintiff, that railroad companies, in operating their trains and engines, must be held, in crossing public highways and thoroughfares, so to regulate the speed of their trains, and to give such signals to persons crossing, that all may be apprised of the danger of crossing the railroad track, and that they should keep a lookout, so as to see, and as far as possible prevent injury to others exercising their legal rights, and that for an injury resulting from a failure of any such duties they are liable, provided the person injured has used all reasonable precaution to avoid injury. The failure to give signals of danger to persons crossing the track, or to keep a lookout to avoid injury as far as possible, were not charged in the declaration: Held, that it was error to give the instruction.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.

      This was an action on the case, by appellee, against appellant, for negligence resulting in personal injuries. Judgment was rendered in the circuit court, for the plaintiff, for $3000, and this, on appeal to the Appellate Court for the Third District, was affirmed. From that judgment of affirmance this appeal is prosecuted.
    Messrs. Crea & Ewing, for the appellant:
    This court may review the testimony to see if there is a variance between the declaration and the evidence. Ives v. McHard, 103 Ill. 97.

    As to the variance between the allegations and proofs, and its effect, see 1 Chitty’s Pleading, (14th Am. ed.) 317, 391; City of Bloomington v. Goodrich, 88 Ill. 558; Moss v. Johnson, 22 id. 633; Railroad Co. v. McKee, 43 id. 120; Hilliard on Torts, p. 150, secs. 9, 10; Railroad Co. v. Dickson, 88 Ill. 431.
    The fourth instruction of plaintiff is too general, and places a right of recovery upon grounds not alleged, and is erroneous. Steinmeyer v. People, 95 Ill. 383; Railroad Co. v. Morgan, 72 id. 175.
    An instruction which allows a recovery for “negligence” in general, is bad. Railroad Co. v. Mock, 72 Ill. 141.
    Mr. W. C. Johns, for the appellee:
    No variance was claimed on the trial, and in the absence of any objection to the evidence, this court can not reverse for its admission. Winslow v. Neivlan, 45 Ill. 145; Cross v. People, 47 id. 152; Brennan v. Strauss, 75 id. 234; Lane v. People, 76 id. 300; Welborn v. People, id. 516; Driggers v. Bell, 94 id. 223; Benevolent Society v. Fietsam, 97 id. 474; 6 Bradw. 161; Driver v. Ford, 90 Ill. 595; Roberts v. Corby, 86 id. 182; Thompson v. Turner, 22 id. 387; Doyle v. Machinery Co. 73 id. 273.

      The affirmance of the judgment is a finding of the facts the same way as the jury did, and is conclusive in this court. Railway Co. v. Henks, 91 Ill. 406; Brownells. Welch, id. 52-4; Hayioard v. Merrill, 94 id. 355; Tenney v. Foote, 95 id. 106.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The question of variance between the allegations and proofs can not be entertained. No motion was made in the circuit court to exclude the evidence from the jury on the ground of variance, nor was that court asked to instruct the jury in that regard. (Doyle v. Douglas Machinery Co. 73 Ill. 273.)

And since we can not say that the evidence does not tend to prove the issues on behalf of appellee, the action of the Appellate Court in affirming the judgment is conclusive as to the questions of fact. Fitch v. Johnson, 104 Ill. 111; Edgerton v. Weaver et al. 105 id. 43; Chicago and Eastern Illinois Railroad Co. v. Rung, 104 id. 641.

The specific acts of negligence charged in the declaration are: Not ringing a bell or blowing a whistle eighty rods before coming to a highway crossing; running at a rate of speed of twenty miles an hour within the city limits, where an ordinance prohibits running at a higher rate of speed than six miles an hour; not approaching a street crossing with due care and caution; leaving cars standing partially across a street crossing, and thereby obstructing the view of a train standing on a track just beyond, and, without any previous warning, starting that train across the track, with loud, shrill whistles; and running an engine and cars over a street crossing at a high rate of speed, and ejecting steam from the steam chest. There is no averment of negligence in not having a flagman stationed at this crossing, nor in not having a man stationed upon the train as a look-out, to give notice of its approach, nor of negligence in any other respect than those just pointed out.

The evidence shows that appellee, who is a married woman and who lives with her family a few miles north-east of Decatur, on the morning of November 1, 1881, in company with her husband, went to Decatur to trade. They traveled in a spring wagon, drawn by a pair of horses, which were driven by her husband. Their way, after entering the city limits, led along Broadway street, which runs north and south, and ■ crosses appellant’s line of railway some distance west of its depot. Appellant has four tracks crossing this street, east and west,—one main track, and the other three side-tracks for switching cars. Appellee and her husband having completed their trading, started homeward, traveling northwardly along the line of Broadway until they came to the crossing of appellant’s road. Their horses had partially crossed the tracks, when, becoming frightened by the noise and advancing of an engine and cars, they started quickly, reared, and plunged to the eastward, and then, being restrained, they backed, and suddenly turned to the westward, throwing the wagon into a lock or cramp, and thereby appellee was either thrown from the wagon, or so frightened that she jumped therefrom to save herself. She fell upon the planking between the railway tracks, and was seriously and permanently injured, the short ligaments in the right knee-joint that hold the parts of the joint together, being torn asunder. There was a building on the west side of the street and south side of the railroad right of way, flush with the street on one side and with the railroad track on the other, and another building on the opposite side of the street, together with other obstructions, thus cutting off a view of the railroad track in either direction until within a very short distance of the tracks themselves. It is in dispute, by the evidence, whether cars were standing on the tracks, projecting into the street; on what tracks wrere the engine and cars by which the team was frightened; whether that engine and cars ran across the street rapidly, or stopped before coming to it, and whether any, and what, signals were given. It was in proof that Broadway street is considerably traveled, and that it is one of the thoroughfares of the city..

The court, at the instance of appellee, gave the following among other instructions to the jury:

“Bailroad companies, in operating their trains and engines, must be held, in crossing public highways and thoroughfares, so to regulate the speed of their trains, and to give such signals to persons crossing, that all may be apprised of the danger of crossing the railroad track; and they should keep a lookout, so as to see, and as far as possible prevent injury to others exercising their legal rights. A failure of any of these duties, when injury occurs because of such failure,, renders them liable for injuries inflicted and for wrongs resulting from the omission, provided the person injured has used all reasonable precautions to avoid such injury. ”

This was error. The requirement that appellant should give “such signals to persons crossing that all may be apprised of the danger of crossing the railroad track, ” is condemned in Chicago, Burlington and Quincy Railroad Co. v. Dougherty, 110 Ill. 521, Peoria, Pekin and Jacksonville Railroad Co. v. Siltman, 67 id. 72, and Chicago and Alton Railroad Co. v. Robinson, 106 id. 142. Moreover, it must be obvious, since the object of written pleadings is to apprise the defendant of the ground of action on which the plaintiff relies, and thereby afford him an opportunity to meet that specific ground, it can not be admissible that one ground of negligence be alleged and a recovery be had upon another and distinct ground. We have seen, here, that no allegation bases appellee’s right to recover on account of the failure of appellant to place a person to keep a lookout, on the train, nor on the ground of a failure to keep a flagman at the crossing to warn persons of the approach of trains; yet the jury are told, by this instruction, that appellant was to give “signals to persons crossing, ” and “keep a lookout, so as to see, and as far as possible prevent injury to others.” What “signals” were to be given, and in what manner such “lookout” was to be kept, the jury were not informed, further than that they were to be such that all might be apprised of the danger of the crossing, and that the “lookout” was to be such as to see, and as far as possible prevent injury to others. With these ends in view, the jury are left to be judges of what shall be the “signals” and the “lookout. ”

But counsel insist that the instruction must be construed with reference to the case actually being tried. The difficulty is, the instruction directs the minds of the jury away from the case actually being tried, and allows them to find the appellant guilty of negligence on a ground not charged in the declaration. It can not be said it is impossible, or even unreasonable, that they could have so found, for there was no evidence offered,—and, under the pleadings, there need have been none,—either that there was a flagman at the crossing, or a person placed on the rear end of the train to keep a lookout, and the instruction authorized the jury to find that the omission of these was negligence.

In another instruction given at the instance of appellee, there is an explanation, which is not objectionable, of the word “lookout, ” as used in that instruction; but it applies to that instruction only, and does not profess to apply to or modify this, which, on its face, assumes to be the complete statement of a cause of action.

The other objections urged by counsel for appellant we deem untenable, but for the error in giving this instruction the judgment is reversed and the cause remanded.

Judgment reversed.


author: Per Curiam :

text:
    William T. Davis v. Stephen Gossnell et al.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Tax title—notice to owner before taking deed. The law makes it a prerequisite to the validity of a tax deed, when sought to be relied on as evidence of title, that an affidavit shall be made of the service upon the occupant of the land, of notice of the sale, and when the time of redemption will expire.
    2. Same—sufficiency of affidavit to authorise a tax deed. The constitution requires the service of notice of a tax sale and when the time of redemption will expire, upon the occupant of the land, to be a personal service, and the statute requires the affidavit of service to state particularly the facts relied on as a compliance with the constitution. A failure to state the mode of service and the facts relied on as showing a service, is a fatal defect, and renders a tax deed made under it invalid.
    Writ of Error to the Circuit Court of Williamson county; the Hon. D. M. Browning, Judge, presiding.
    Mr. W. W. Clemens, for the plaintiff in error:
    Formal criticisms not affecting the substantial rights of the tax-payers, are measurably ignored. Buck v. People, 78 Ill. 562; Beers v. People, 83 id. 492; Purrington v. People, 79 id. 13; Thatcher v. People, id. 601; Fisher v. People, 84 id. 495; Chiniquy v. People, 78 id. 573.
    The uncertain description in the deed as to one piece of the land is made good by parol evidence. Law v. People, 80 Ill. 269; Fowler v. People, 93 id. 117; Colcord v. Alexander, 67 id. 583; 3 Washburn on Real Prop. 407; Law v. People, 84-Ill. 142.
    Mr. A. D. Duff, for the defendants in error:
    The notice of the tax purchase served on Gossnell, offered in evidence, is insufficient, under section 5, article 9, of the constitution, and section 216, chapter 120, of the Bevised Statutes, amended in 1879. This notice is to Gossnell alone, and the words, “and all others interested, ” added after his name, are merely surplusage. If - the parties interested are known, they must be named in the notice. If not known, they should be notified as “unknown owners. ”
    The affidavit of Holland, required by section 217, is not in compliance with the law. Section 216 required him, if the owner or party interested in said land was not known to him, then to make diligent inquiry for them,—and this is one of the essential facts that should appear in this affidavit. Yet there is not a word in it showing that he ever made any inquiry as to the owner or parties interested in the land. It is stated in this affidavit that Moulton & Co. could not be found in the county, after diligent inquiry, but it is not shown that such inquiry was made as to the owners and parties interested.
    The affidavit of Holland is wholly defective, in not showing how it was served. Ho' court can determine whether this notice was served by sending it through the mail, by newspaper, by leaving a copy, or otherwise. The service upon the occupant must be personal service. This is not an open question in this court. Price v. England, 109 Ill. 395, seems to be decisive of this question. There was some attempt made, on the trial below, to show some additional fact connected with this notice, by the parol evidence of the occupant defendant. But I insist that these tax deeds being, under the constitution and law, based on the affidavit, they must stand or fall by the affidavit as it appears upon its face,—that no evidence can be heard either to contradict, bolster up or explain its contents. Klokkee v. Stanley, 109 Ill. 192.
   Per Curiam :

The plaintiff’s claim of title is under a tax deed. The law makes it a prerequisite of such a deed that an affidavit should have been made of the service upon the occupant of the land sold for taxes, of notice of the sale, and when the time of redemption will expire. The affidavit in this case states merely that the affiant did serve a partly written and partly printed notice of the purchase on the occupant, without stating the manner of the service. The constitution requires the service to be personal service. The statute requires that the affidavit shall state particularly the facts relied on as compliance with the condition of service of notice. It is a fatal defect in the affidavit, and consequently to the validity of the tax deed, that the affidavit fails to show the mode of service,—does not state particularly the facts relied on as constituting service, so that the court may see that the service was such as is required by law. This precise point was so adjudged in Price v. England, 109 Ill. 395, and the decision in that ease must control here.

The judgment for defendants must be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Henry T. Digby v. The People of the State of Illinois.

      Filed at Mt. Vernon

      January 22, 1885.

      Evidence—d/ying declarations. Upon the trial of a person on the charge of murder, it appeared that the deceased, some days before his death from the wound he had received, made a statement to the effect that the defendant shot him. The preliminary proof to the court showed that at the time of making the statement the deceased had not been informed by his physician or any one else that his wound was mortal, though he said at the time he would not live three days. It further appeared that he made no preparation of any kind in view of death, often used profane language, and spoke about being able to resume business and of getting married in a few days: Held, that the statement of the deceased was not admissible as a dying declaration, it not appearing it was made in view of impending death, and under the sanction of a moral sense of certain and just retribution.
    • Writ of Error to the Circuit Court of Hamilton county; the Hon. M. C. Crawford, Judge, presiding.

      Mr. T. B. Stelle, for the plaintiff in error:
    As to the admissibility of dying declarations, in general, see Starkey v. People, 17 Ill. 17.
    It is not the province of the court, in a criminal case, to express an opinion upon the facts, whether orally or during the progress of the trial, or in the form of instructions. Weyrich v. People, 89 Ill. 90; Bond v. People, 39 id. 26.
    The court, by its instructions, swept away the issues, and told the jury “that the dying declarations of the deceased * * * are proper for your consideration, and in passing upon their weight or value, you have a right to take into consideration all the facts and circumstances surrounding the deceased, so far as presented by the evidence.”
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment for murder. It was claimed on behalf of the People that in the night of October 18, 1878, Henry T. Digby, the plaintiff in error, attempted to rob one John Sinclair, who was sleeping in a room at the house of John Digby, and- that while engaged in the effort to commit the robbery, plaintiff in error shot and mortally wounded Sinclair, who, in a few days thereafter, from the effects of the wound received, died. At the September term, 1879, of the circuit court of Hamilton county, the plaintiff in error was tried, and found guilty, and his term of imprisonment was fixed, in the penitentiary, at fourteen years, by the jury. The court overruled a motion .for a new trial, and rendered judgment on the verdict. To reverse the judgment, this writ of error was sued out, September 30, 1884.

Upon an examination of the evidence introduced by the People to establish the guilt of the defendant, we find no evidence in the record which can be regarded as sufficient to sustain the verdict of the jury, aside from the declarations of Sinclair, made in the presence and hearing of Dr. Bullard. It therefore becomes an important question' whether those declarations were proper and legal evidence for the consideration of the jury in passing upon the guilt or innocence of the defendant.

Dr. Bullard, who was called as a witness for the People, over the objection of the defendant, testified to the declarations of the deceased, as follows: “I saw deceased twice after he was shot. On Saturday afternoon, after he was shot, I saw him. He knew me. I asked him if he had any idea who shot him, and he said, ‘The man who shot me wears a pair of shop-made boots.’ I said I hoped it was not a fatal shot, and tried to encourage him. He made no reply. Again, on Monday, about two or three o’clock in the afternoon, I saw deceased. He knew me. He said he felt mighty bad. I told him I hoped it was not a fatal shot, and that I hoped he wrould get well. He said, ‘No; I’ll not live three days.’ I asked him if he knew who shot him. He said he did,—that it was Henry Digby. He gave no reason for thinking it was Henry Digby. He spoke fluently. ”

As a general rule, hearsay evidence is not admissible, but an exception to the general rule is found in case of dying declarations, on the trial of a defendant on an indictment of this character. Before the court admitted the declarations, evidence was heard by the court for the purpose of ascertaining whether such declarations could be regarded as the dying declarations of Sinclair. From this evidence, it nowhere appears that Sinclair had ever been advised by his physicians, or by any other person, that his wound was mortal, and that he could not recover. Nor does the evidence, when fairly considered, establish the fact that Sinclair believed he would not recover. It is true that some of the witnesses state that he said he could not get well, but others who were with him constantly, testify the other way. Bichard Sinclair, who was called on behalf of the People, testified: “I was with him nearly all the time. I never heard him express himself about living or dying. We were in business together. He never talked about any disposition of his property or business.” Blades, who testified for the People, said Sinclair “swore about being waked up. He never said anything about business, religion or dying. ” Elizabeth Merrill testified: “I was with deceased every day, after he was shot, until he died. He was anxious about his medicines, and wanted to take them regularly. He said several times he wished he knew the God damned man that shot him. He asked Eliza when she and her mother were going to town to get her things. He told me, on Tuesday night, that he would be able for he and Eliza to get married by next Sunday. He said he was better. He said, Tuesday night, he would give $100 or $50 to know the damned man who shot him. He always told me he was getting better, until Tuesday night.” Sarah Downing, called for defendant, testified: “I saw deceased on Tuesday before he died. I asked him how he was. He said if he kept on getting better he would start the factory on next Monday.” Eliza Digby, also for defendant, testified: “I am the sister of defendant, and was with deceased nearly all the time, after he was shot. Deceased and I were engaged to be married, and he wanted to know when I was going to town to get my clothes to be married in. He told me several times he was better. I heard him swear. He said, ‘God damn it.’ ■ I waited on him and nursed him. ” On cross-examination this witness stated “deceased said he thought he would get up by next Sunday.” Several witnesses also testified to repeated acts of swearing by Sinclair during his illness, but a statement of the language used will serve no useful purpose here.

When due weight is given to all the evidence introduced before the court, does the testimony of Dr. Bullard fall within what is known in law as dying declarations? It is said in 1 Greanleaf on Evidence, sec. 156: “The general principle

on which this species of evidence is admitted was stated by Lord Chief Baron Eyre to be this : That they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced, hy the most powerful considerations, to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice.” In Starkey v. People, 17 Ill. 17, this court, in considering this class of evidence, said: “Dying declarations are therefore such as are made by the party, relating to the facts of the injury of which he after-wards dies, under the fixed belief and moral conviction that his death is impending, and certain to follow almost immediately, without opportunity for repentance, and in the absence of all hope of avoidance,—when he has despaired of life, and looks to death as inevitable and at hand. ”

Were the declarations in question made in extremity ? Was deceased at the point of death, and all hope of life gone, and death expected to follow at once? The record discloses no such case. It is true that the deceased stated that he would not live three days; but this, when considered in connection with the other evidence on the subject, is not enough to bring the evidence within the rule laid down in the authorities heretofore cited. Again, the physicians who were attending the deceased had never informed him that his wound was a dangerous one, and likely to produce death, nor had his friends so advised him. Nor had the deceased made any preparation for death, spiritually or otherwise, as he probably wxmld have done had he supposed death was near at hand. He, as appears, was in business, and had property, but he made no effort whatever to settle his business affairs or make disposition of his property, as he probably would have done had he anticipated that his life was about to terminate. On the other hand, he talked- of his business as a man would who expected soon to be able to take charge of his affairs again. In view of these facts, which were before the court when the evidence was offered, we. are of opinion that it can not be regarded as the dying declarations of the deceased.

It will be remembered that evidence known as dying declarations is hearsay in its character. The accused has not the right to meet the witness who accuses him, face to face. He is deprived of the right of cross-examination,—one of the greatest tests of truth in the trial of a crime. The evidence is not given under the sanctity of an oath. But while these safeguards, which are thrown around ordinary evidence for the purpose of preventing falsehood, can not be applied to dying declarations, still there is one element,—one check,—which can not be dispensed with, and that is, that the declarations, as declared in Starkey v. People, must be made in view of impending death, and under the sanction of a moral sense of ■ certain and just retribution. The declarations read in evidence were not made under such circumstances, and we do not think they were admissible in evidence against the defendant.

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

Judgment reversed.


author: Mr. Justice Walker

text:
    Daniel C. Lynn v. Caleb M. Lyerle.

      Filed at Mt. Vernon

      January 22, 1885.

    • 1. Specific pebfobmance—as to promise to pay purchase money under new agreement after prior transaction set aside as in fraud of creditors. The owner of a tract of land conveyed the same to his son-in-law for $1200, talcing five promissory notes, of $200 each, from the grantee, one to each of the grantor’s five daughters, the other $200 being the grantee’s wife’s share of the purchase money. The conveyance was set aside at the instance of creditors of the grantor, and the notes given for the purchase money ordered to be surrendered and cancelled, which was done, except as to one note which had been paid. After the land was advertised for sale in the interest of the creditors, the grantor agreed to discharge the judgments and the lien on the land, and did so upon the agreement of the grantee to pay him $1200, which he afterward refused to do, or give his notes for the price: Held, that a court of equity would compel him to pay the sum really due from him; and that he could not defeat a suit in which relief was sought in that regard, on the alleged ground the conveyance was originally made to defraud creditors.
    2. Chancery—practice—omission to make formal disposition of injunction in decree. On bill to compel the purchaser of land to specifically perform his contract, the court, in decreeing that he pay the sum agreed to be paid, and making it a lien on the premises, made no disposition of an injunction previously granted restraining him from cutting and selling timber from the land: • Held, no error, as the decree fixed the rights of the parties, and when the defendant should execute the decree the injunction would fall or cease to hold good.
    3. Attorney at law—privileged communications. Where two parties go together to an attorney, .and make statements to him in the presence of each other, such statements are not confidential communications intended to be withheld from the opposite party, and there is no error in permitting the attorney to testify thereto in a suit between the parties relating to the subject matter of such communications.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of. Union county; the Hon. Daniel M. Browning, Judge, presiding.
    Mr. W. C. Moreland, and Messrs. Inscore & Maxey, for the appellant:
    The court erred in permitting W. S. Day to testify as a witness, because he testified that he was acting as attorney for each of the parties to the suit when them statements were made to him. Granger v. Warrington, 3 Gilm. 299; People v. Barker, 56 Ill. 299; Dietrich v. Mitchell, 43 id. 40.
    There never was but one contract entered into between the parties for this land, and that was when the deed was made, in 1880. By that contract- appellant was to pay, not to appellee, but to his daughters, $1000,—$200 of which has been paid, and a part of the remainder-is not due. While this contract was fraudulent as to creditors, it was good
      inter partes. Harmon v. Harmon, 63 Ill. 512; Ward v. Enders, 29 id. 519; Campbell v. Whitson, 68 id. 240; Bott v. Rogers, 3 Paige, 154.
    A court of equity will not aid in the enforcement of fraudulent contracts, but, will leave the parties in the same position it finds them. Crosier v. Acer, 7 Paige’s Ch. 137; Miller v. Markle, 21 Ill. 152; Harmon v. Harmon, 63 id. 512.
    Mr. M. C. Crawford, for the appellee:
    This transfer was not set aside because of fraud in fact, but for the reason that there was no valuable consideration moving from the daughters of appellee to him for said land ; and as the law requires that a man shall be just before he is generous, the transfer was declared to be fraudulent, in law, as to creditors.
    The transfer was made in good faith, and for a lawful purpose, and therefore does not antagonize the principle laid down in Harmon v. Harmon, 63 Ill. 512, Ward v. Enders, 29 id. 519, and Campbell v. Whitson, 68 id. 240.
   Mr. Justice Walker

delivered the opinion of the Court:

The facts of this case are, as we gather them, that about the 17th day of May, 1880, appellee, Caleb M. Lyerle, conveyed certain land (out of which transaction this controversy arises) to appellant, Daniel C. Lynn, for the consideration of $1200. No money was paid to appellee, but appellant gave his notes, due in five annual payments, to five of appellee’s daughters, for the aggregate sum of $200 to each daughter, and the remaining $200 was to appellant’s wife, who was another daughter. The transaction, it is claimed, was intended as a gift or distribution of this property among appellee’s children. On the other hand, it is insisted that it was intended to defraud his creditors. It appears that appellee was, at the time of the transaction, surety for one Morgan, to C. and G. Cooper & Co., and the Harrison Machine Works, for different' sums ; that Morgan proved to be insolvent, on the rendition ' of judgments against him; that Cooper & Co., and the machine works, filed a bill to set aside that conveyance as fraud-. ulent as against creditors. On a hearing, it was set aside, and the land decreed to be sold to satisfy their judgments, and the notes given by appellant were ordered to be cancelled. After the rendition of the decree, and the land being advertised for sale, it was arranged between appellant and appellee that the latter should raise the money and pay off the judgments, and appellant would purchase the land for $1200. When appellee had raised the money and paid off the judgments, appellant refused to make payment, give his notes, or proceed to perform his part of the agreement. He only paid $50 under this contract. On a hearing, the circuit court granted the relief sought, found the amount due to be $1003, decreed its payment, and in default thereof that the land be sold for the payment of that sum. From that decree defendant appeals, and assigns various errors.

The abstract is wholly unintelligible, as it furnishes none of the pleadings, or even a statement as to the nature or purpose of the bill or the character of the defence, nor does it set out the substance of the evidence. We have, however, endeavored to obtain the facts, and believe we have done so.

It is claimed that the first sale to appellant was in fraud of appellee’s creditors, and for that reason appellee is not entitled to relief; that its between the parties the transaction was binding, but void' as to creditors; that when the deed was declared to be void as to creditors, the title still remained in appellant, subject to the lien of the judgment against appellee and in favor of the creditors; that appellant had only to pay the judgments and costs of the proceeding, to perfect his title. This is no doubt true, but he did not pay the judgments and costs, or any portion of that sum but $50. His notes to his sisters-in-law had been surrendered and cancelled under the decree, and he was thereby relieved from that liability. Appellee, his father-in-law, paid off these judgments and costs, and relieved the land from all liens. Of this there is no dispute. And to permit appellant to escape his liability to pay his wife’s sisters, -or' to repay appellee for money advanced to save the land, would be monstrous injustice, that should receive the sanction" of no court 'of justice. To sustain the title, freed from all liability or lien, under the circumstances of the case, would be to aid in a most iniquitous and unblushing fraud. If appellant seeks to hold the land, every principle of justice and fair dealing requires that he should pay for it. He has no equitablé or moral claim to have appellee’s land ■without paying a consideration. Appellee claims that he paid the money to relieve the property, under an agreement ■that appellant 'would- hold the title and refund the money paid'to relieve-'if frbm thé lien of the'creditors’ judgments ■and-to' prevent the sale of the land. This appellant denies, but 'gives no explanation of the reason why appellee paid the money to relieve the title. Had it been the understanding ■-that appellee should pay the money that the title might remain in appellant without further cost to him, he would have shown and proved the arrangement and its terms. It would be incredible to suppose that had there been such an arrangement, appellant would not have set it up and relied on it as a defence. Had'appellant paid for the land at the time the land was 'conveyed to him, or afterwards, as between him and appellee he would' have had equities 'appealing strongly for protection; but he only agreed to pay' appellee’s daughters in installments, on long time, and he was relieved of that by the cancellation , of his "notes by the decree of the court.

' From the inherent nature of the transaction, we are impelled to believe that when ap2:>ellee advanced the money to relieve the land from the lien of the judgments, there must have been an understanding that he was to be reimbursed, or the land reconveyed tú him. It is wholly improbable that appellee should have raised the money, paid off the liens, and relieved the property, without some arrangement with appellant in regard to the transaction. We must therefore believe appellee’s version of the arrangement. Moreover, he is strongly corroborated by Day. The latter testifies that they were in his office before the money was paid to prevent the sale of land, and were endeavoring to agree upon terms between themselves, and asked his opinion as to several items to be allowed appellant, and that he said he should be allowed the $200 paid to Mrs. Davis, and should be allowed attorney’s fees paid by him in defending the chancery suits to subject the land to the payment of the judgments in favor of Cooper & Co., and the machine works. Although he says he heard no contract made, they were arranging the terms on which the money was to be paid to redeem, and appellant advanced $50 for the purpose, and appellee the balance. This strongly corroborates appellee’s evidence. If there was no agreement as to the price appellant was to pay, why ask Day what allowances should be made to appellant ? If there was no such agreement, why ask such questions ? If there was no understanding that the land was to be taken by appellant at a given price, then such questions are wholly meaningless. Nor does appellant, in his testimony, attempt to explain why these questions were asked. If for another purpose, he would have been more than willing to have given the explanation when he was on the stand. His failure to do so is strongly corroborative of appellee’s evidence.

Appellee testified that appellant agreed to take the land, if he would redeem it from the liens, at $1200, but he was to retain $200. This, he says, was intended to cover the sum he had previously given to appellant’s wife in a reduction of the price of the land. He swears that appellant agreed to take it, and was to pay $200 down when the judgments were satisfied, and he paid $50. Day testified that this payment was made. It is urged that Day being .the attorney of both parties when they consulted him, the court erred in admitting his evidence, and the cases of Granger v. Warrington, 3 Gilm. 299, People v. Barker, 56 Ill. 299, and Dietrich v. Mitchell, 43 id. 40, are referred to as supporting the objection. The cases are not in point, nor do they have any bearing in favor of appellant. They assert the general rule that communications made by a client to his attorney in reference to his case, are privileged, and can not be testified to by the attorney. But here both parties were present, and what each said was communicated to the other, as well as to the attorney. They were not secret, and designed to be withheld from the opposite party. The reason for the rule is, that the other party shall not be informed of admissions and facts made known to the attorney, so as to be used against the client. Here no such reason exists. Appellant made the same statements to appellee on that occasion that he made to Day, and hence they are not privileged, and the court did not err in their admission in evidence.

It is urged that appellant had sold a large quantity of poplar timber standing on the land, and had received a portion of the price, and had negotiated the notes given for the balance by the purchasers, and it is claimed, as we understand it, that appellant should be allowed for that amount. We are unable to perceive any, the slightest, claim, in reason or justice, for any such allowance. He has received the money, and if he will pay the decree he can execute the agreement by furnishing the timber to the purchasers. If the land is sold, and appellee’s lien is superior to that of the purchasers, he then sold property to which he had ho title, and he can restore the money. The purchasers are not parties, and the court could not settle their rights without their having an opportunity to be heard.

It is claimed there was error in not disposing of the injunction preventing appellant from selling any more timber, on the final hearing. The rights of the parties are found and fixed by the final decree, and when it shall be executed the injunction will fall, or application can be made for its dissolution.

Appellant claims that he should have been credited or allowed on the price he was to pay for the land, the $200 he had paid-to Mrs. Davis, one of the daughters of appellee, to take up his notes to her. On turning to the record, we find in the decree cancelling the deed from appellee to appellant for this land, this recital: “Be and the same is hereby set aside and vacated, and declared null and void and of no effect whatever as against the complainants, except the said Daniel 0. Lynn shall have a lien on the premises for $200 paid to Nancy S. Davis, a defendant herein, as a part of the purchase herein. ” This was a finding by- the court before the contract or verbal agreement was made under which appellant advanced the money to pay the judgments. But appellee testified - that appellant was to give him $1000 for the land above his wife’s share, and on the same day they went to Day’s office to consult him as to what deductions should be made from that sum, and it is clear that some deductions were to be made from the sum agreed upon. Day, at that interview, told them that this $200 should be deducted, and ho objection was made to the statement. Had the agreement been to give. $1000 in addition to that, appellee would undoubtedly have then said so; but failing to do so, it is evident that it was understood it was to be deducted.

The court therefore erred in not giving a credit to appellant for that sum, and the decree will be modified by reducing the decree of the circuit court to the extent of $200, and it will be affirmed as to the remainder. And the case is remanded to the Appellate Court to so direct the circuit court.

Decree modified.


text:
    Dow Smith v. J. G. Harris et al.

      Filed at Springfield

      January 31, 1885.

      AppeaIi—as to amount involved—judgment for defendant in suit for negligence. In an action to recover damages growing out of alleged negligence, a judgment of the Appellate Court affirming a judgment of the trial court in favor of the defendant, is final; and unless the judges of the Appellate Court make a certificate that the cause involves some question of law ■which, on account of principal and collateral interests, should be passed upon by this court, no writ of error will lie from this court to review the judgment of the Appellate Court.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Craig & Craig, for the plaintiff in error.
    Messrs. Stevens, Lee & Horton, and Messrs. Wiley & Neal, for the defendant in error Beck.
   Per Curiam :

This suit was commenced in the circuit court of Coles county, by Dow Smith, against J. G. Harris, G. B. Comstock and Amos Beck, and was to recover for personal injuries sustained by plaintiff on account of the alleged wrongful conduct of defendants. Damages are claimed by plaintiff, in his declaration, in the sum of $10,000. On the trial in the circuit court the issues were found for defendants, and judgment was rendered against plaintiff for costs. That judgment was affirmed in the Appellate Court for the Third District. Plaintiff has brought the case to this court on error.

It is thought the writ of error must be dismissed, for the reason the judgment of the Appellate Court is final. The judges of that court have made no certificate the cause involves any question of law which, on account of principal and collateral interests, should be passed upon by the Supreme Court, and so the writ of error will not lie, for that reason.

The case is one sounding in damages, and the statute provides in such cases, where the judgment of the trial court is less than $1000, exclusive of costs, and is affirmed by the Appellate Court, such judgment shall be final, and no appeal or writ of error shall be prosecuted therefrom. Eev. Stat. 1881, page 401, sec. 25.

Writ of error dismissed.


author: Mr. Justice Sheldon Mr. Justice Mulkey :

text:
    , William P. Launtz v. The People ex rel. John M. Sullivan.

      Filed at Mt. Vernon

      January 22, 1885.

    1. Pleading and evidence—as to allegations not traversed. To an information in the nature of a quo warranto to test the defendant’s right to an office, the defendant filed a plea showing his appointment to the office by the city council, the filing of his oath of office in proper time, and the approval of his official bond. The relator, by replication, denied the appointment and the approval of his bond: Held, that as the filing of defendant’s oath of office was not traversed, it stood confessed by the pleadings.
    2. Municipal corporations—election or appointment of city officers—■ of the number of votes required. Where a city council, consisting of eight aldermen and a mayor, are all present, or a quorum is present, and the election of an officer is properly proposed, whoever receives a majority of those who do vote will be elected, although a majority of the members of the council may abstain from voting, or may even protest against the election.
    3. Same—when the mayor may vote. Under a city charter which gives the mayor a right to vote only in case of a tie, if four out of the eight councilmen vote in the affirmative, and the other four, though present, refuse to vote either way, the mayor may treat those not voting as opposed to those who have voted, and decide the question by voting also in the affirmative.
    4. Same—approval of city treasurer's bond. At a full meeting of a city council, consisting of eight aldermen and a mayor, on motion to approve the city treasurer’s bond, and upon a call for the ayes and noes, four councilmen voted in favor of the motion and the other four refused to vote, and the mayor thereupon declared the motion carried, voting also in the affirmative: Held, that as the approval of the officer’s bond was of the same nature as his election, without which the election was unavailing, the same rule as in elections should apply, and a majority of those voting having voted in the affirmative, the bond was legally approved.
    5. Same—effect of approving official bond not filed in time. The charter of a city provided that when an officer appointed fails to qualify within ten days after notice of his appointment, the office shall be filled by a new appointment: Held, that a failure to give bond within the time was but a cause of forfeiture of the office, which the city council might waive, and that a subsequent approval of the official bond of the person appointed was a waiver in that regard.
    6. Appeals—reviewing facts—as a question of law. Where there is no dispute as to the facts of a case, the question being whether such facts sustain a plea of justification in a proceeding by quo warranto, this court will pass upon the facts, as what they show is a question of law only.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snydeb, Judge, presiding.
    This was a proceeding-by quo warranto, the defendant being charged with usurping and unlawfully holding the office of city treasurer of East St. Louis. The defendant justified by pleading that he had been duly appointed to the office by the city council of East St. Louis, on May 7, 1884; that his oath of office was filed May 8, 1884, and that his official bond was accepted and approved by the city council on May 21, and again on May 29, 1884. Eeplications were filed, denying, first, that defendant had been so appointed; and secondly, that his bond had been accepted and approved. The cause was tried upon these issues.
    The bill of exceptions states that the defendant proved that he was appointed to the office of city treasurer at a meeting of the city council held on May 7, 1884, at which the mayor and five councilmen were present, and at which meeting a majority of the said five councilmen voted for his appointment; that on May 21, 1884, there was a special meeting of the city council called for the purpose of approving the minutes of the meetings of the council held on May 7 and 16, 1884, and approving the official bond of the defendant, at which meeting all of the members of the council, eight in number, and the mayor, were present, and that on those questions, on a call of the roll of the members of the council, by a vote by yeas and nays, which was entered upon the journal, four councilmen voted in favor of said motions and the other four refused to vote, and the mayor thereupon declared the motions carried;, that on May 29, 1884, at a special meeting of the council duly called to read the minutes of previous meetings, and to take action in regard to the appointment and qualification of city officers, all of the councilmen and the mayor were present, and on the questions of approving the minutes of the previous meetings, and approval of the official bond of the defendant, four councilmen and the mayor voted in the affirmative, on a call of the roll of members of the council for the yeas and nays, and the other four refused to vote, and did not vote, and the mayor thereupon declared - said motion carried; that the city of Bast St.Louis is organized under an act of the General Assembly of the State of.Illinois, entitled “An act to reduce the charter of the city of East St. Louis, and the several acts amendatory thereto, into one act, and to revise the same, approved March 26, 1869.” (1 Private Laws, 1869, p. 885.) The defendant also gave in evidence an oath of office taken by him, a commission issued to him by the mayor of the city, and an official bond as treasurer of the city-of Bast St. Louis,—and this was all the evidence ; and thereupon the court, a jury having been waived, found the issues for the People, and the defendant guilty, and after overruling a motion for a new trial, made upon the ground that the.finding was contrary to. the law and to the evidence, rendered judgment of ouster, which was affirmed by the Appellate Court for the Fourth District, and the defendant took the present appeal to this court.
    The charter directs the city council to require of each one holding an office of trust in the city, a bond, with sufficient penalty and security, etc.; requires the council to exercise all its powers by ordinance; provides that “a majority'of the couneilmen shall constitute a quorum to do business; ” directs the council “to determine the rule of its proceedings in conformity with the usual practice of deliberative bodies; ” requires the council to keep a journal of its proceedings, and that “the yeas and nays, when demanded by any member present, shall be entered on the journal; ” makes the mayor presiding officer at city council meetings, and gives him a casting vote in case of a tie, and no other; provides that any office, where the officer appointed fails to qualify within ten days after receiving notice of his appointment, shall be filled by a new appointment ; prescribes the oath of office required of each one elected or appointed to any office, to be made, subscribed and filed before entering upon his office. Under the ordinance in the record, by the stipulation of the parties, the treasurer is required, after his appointment, in addition to making, subscribing and filing the prescribed oath of office, and “before entering upon the duties of the office, ” to “give an official bond, in the penal sum of $100,000, payable to the city, with sureties to be approved by the city council. ”
    Mr. M. Millard, and Mr. George F. O’Melveny, for the appellant:
    The failure of a city officer to give his bond within the time required by law is only a cause for his removal, which may be waived, and is waived, by a subsequent approval of the bond. Dillon on Mun. Corp. sec. 153; Cawley v. People, 95 Ill. 249; Chicago v. Gage, 95 id. 621; State ex rel. v. Ely, 43 Ala. 568 ; State ex rel. v. County Court, 44 Mo. 230; Ross v. Williamson, 44 Ga. 501.

      After an election of a city officer has been properly proposed, whoever receives a majority of those who vote, there being a quorum present, is elected, although a majority of the council abstain altogether from voting. Wilcox on Corporations, sec. 546; 2 Kyd on Corporations, 12; Angell & Ames on Corporations, secs. 126,127; Commonwealth v. Read, 2 Ashm. 261; Rex v. Foxcraft, 2 Burr. 1017; State v. Green, 37 Ohio St. 227.
    It is unsound to say that one-half of. a representative body, when a casting vote is given to the presiding officer, may defeat a measure by refusing to vote.
    Mr. A. S. Wilderman, Mr. R. A. Halbert, and Mr. John B. Bowman,
    for the appellee, contended that all controverted questions of fact were conclusively settled by the judgment of the Appellate Court.
    The mayor of the city has a casting vote, in case of a tie, and no other. There are eight councilmen, five of whom are necessary to a quorum. The mayor is not counted as one of the quorum.
    Counsel insisted that the issues were, whether the appellant was ever legally appointed to the office, and if so, whether he qualified as such. After failing to give his bond in time, the city might waive its right to a new appointment by approving the bond, but he could not compel action on his bond then.
    A distinction has been made in proceedings for the election of corporate officers and for the transaction of business. In the first, a majority of those voting, if a quorum is present, elects, while in the case of other business, a majority must vote for the measure or proposition. Gosling v. Veley, 53 Eng. C. L. 439; 4 H. L. Cases, 679; State v. Green, 37 Ohio St. 227.
    When a statute points out a particular course to be pursued to effect a particular purpose, no other course can be pursued. County v. McFarlan, 82 Ill. 146; Cawley v. People, 95 id. 256.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Defendant’s appointment to the office is admitted by appellee’s counsel. The filing of his oath of office is averred in the plea, and not traversed by the replication. It therefore stands confessed by the pleading, so that all there is remaining to give to defendant complete title to the office of city treasurer, is the approval by the city council of his official bond.

There were eight members in the body of the city council; a quorum consisted of five members; the mayor had a casting vote in case of a tie. On the 21st and 29th of May, the council being duly convened, and all its members present, a motion was made to approve defendant’s bond, and one-half of the aldermen (four) and the mayor voted to approve the bond, and the other half refused to vote. This action of the city council, it is claimed by appellant, was a valid approval of the bond.- On the other-hand, it is contended that a majority of the aldermen present (five) should have voted in its favor, to make a valid approval of the bond. In respect of the election of corporate officers, the well settled rule is, as stated in Wilcox on Corporations, sec. 546: “After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting, because their presence suffices to constitute the elective body; and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be construed an assent to the determination of the majority of those who do vote; and such an election is valid though the majority of those whose presence is necessary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes.” And see Angell & Ames on Corporations, secs. 126, 127; Rex v. Foxcraft, 2 Burr. 1017; Commonwealth v. Read, 2 Ashm. 261; State v. Green, 37 Ohio St. 227. This doctrine is admitted by appellee’s counsel, with respect to elections; but they • claim that it is limited to cases of elections, and does not extend to the transaction of other corporate business,—that in the latter case a majority of those present must vote for a proposition, to carry it. There is authority for this distinction. Gosling v. Veley, 4 H. L. Cases, 679.

It is further insisted that as the city charter directs the city council “to determine the rule of its proceedings in conformity with the usual practice of deliberative bodies, ” the parliamentary rule which is adopted by such bodies should obtain, and that that rule requires the vote of a quorum to transact business, and that where the roll is called, and the yeas and nays are taken, and it appears from the response to the call that no quorum is voting, business must be suspended till a quorum answers. We do not find it necessary here to pass upon these positions of appellee’s counsel, for, conceding their correctness, we think the admitted rule which applies in cases of elections should be taken to govern in this case of approval of the bond, as being a thing pertaining to the matter of the officer’s appointment. The appointment and approval of the bond are both necessary to the investiture of the office. Both are to be by the same body, and we think they may be looked upon as an entirety in investing any one with the office,—that the approval of the bond is a step in the completely filling of the office of city treasurer by the city council, and thus is not other business, but the same business with that of the officer’s appointment. What the propriety of separating the proceeding, and requiring another mode of expressing the will of the council in the approving of the bond than in the choosing of the officer? We see not why, properly enough, the same rule may not be held to cover the whole proceeding of the making of the officer, and that the same vote in respect of number of members voting, which admittedly suffices in the case of the election of the officer by the city council, should be deemed sufficient for the approval of the officer’s bond. This should be so, unless the authorities forbid. Where the members of the council are equally divided, four voting one way and four the other, there is a ■tie, and the mayor may vote with either side, and make a majority. What reason is there why, when all the eight members are present, and four vote and four refuse to vote, the mayor should not vote with one side or the other, and make a majority? Why may it not be considered as equivalent to a tie, counting the members who do not vote as voting the contrary way from the mayor ? This would be fulfilling the purposes of the law in giving the mayor a casting vote in case of a tie. It would enable the making of a majority, and prevent the obstruction of business by .refusing to act, ■and would be giving effect to the will of the majority, which is the governing rule in the action of corporations. (Angell & Ames on Corporations, sec. 499.) What the. propriety of ■giving to a refusal to vote more potency than to a vote cast ?— of allowing a gain from violation of duty, in making the refusing to vote of more effect in governing the action of the body of which one is a member, than voting ? The charter provision, •that where the officer appointed fails to qualify within ten days after receiving notice of his appointment, the office shall be filled by a new appointment, did not render the appointment void on failing to qualify within the time; but such failure was but a cause of forfeiture of the office, which the city council might waive, and they did here waive it, in proceeding afterward in the approval of the bond. Chicago v. Gage, 95 Ill. 621; Cawley v. People, id. 249.

It is said that all controverted questions of fact were finally settled by the judgment of the Appellate Court, and therefore the judgment of that court must be conclusive. It is true that under the Practice act the reexamination of cases brought to this court is to be in respect of questions of law only, and that no assignment of error is to be considered which calls in question the determination of the court below upon controverted questions of fact in any case except as there provided. But in the present case there is no controverted question of fact. Appellee’s counsel say, in their brief, “there is no controversy as to the facts, and that the only question in either the trial court or the Appellate Court was as to their legal effect.” The question is, whether the uncoütroverted facts sustain the defendant’s plea of justification, which is a ques-. tion of law only, and we answer it in the affirmative.

The judgment of the Appellate Court must be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Mulkey :

I dissent from the opinion in this case.


author: Mr. Justice Dickey

text:
    Snell, Taylor & Co. v. William H. Pells.

      Filed at Springfield

      January 29, 1885.

    1. Estoppel—setting up illegality of contract—os between principal and agent. An agent who receives money for his principal upon a contract not criminal or immoral in its character, but contrary to public policy only, will be estopped from setting up the supposed illegality of such contract in defence to an action by his principal to recover the money in his hands.
    2. In this case a person, as the agent of a firm of contractors for the construction of a railroad, procured subscriptions for the purpose of securing the location of a depot at a certain point on the road, in which those who made the subscriptions were interested, the contractors having the power, under the terms of their arrangement with the railroad company, to fix the location of the depot at the place desired. The agent who thus procured the subscriptions was at the time a director in the railroad company, and, having applied the proceeds of the subscriptions to his own use, in a suit by his principals to recover from him the money so obtained, he set up the supposed illegality of the contract resulting from his official relation to the railroad company, as a defence; but it was held, he was estopped from relying upon such defence as against his principals.

      3. Practice in the Supreme Court—passing upon instructions— absence of evidence. It is not necessary that all the evidence in a case shall be preserved in a bill of exceptions, to enable this court to pass upon the propriety of an instruction as to the employment of the defendant as agent of the plaintiff. Such an instruction assumes that there was sufficient proof of agency.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Ford county; the Hon. N. J. Pillsbury, Judge, presiding.
    Snell, Taylor & Co. contracted with the Lafayette, Bloomington and Mississippi Railroad Company to construct its railroad from Bloomington to the State line of Indiana, at a specific price per mile. By the contract the right or power was given to them to locate the depots on the road east of the county of McLean. William H. Pells was a director in the railroad company at the making of this contract, and so continued to be until the completion of the road. He owned property -at or near to Pellsville, and was anxious to have a' depot located at that point on the road, which was east of the county of McLean. Other parties residing or owning property there or in the vicinity, were also desirous that a .depot should be located and constructed at that place. After the making of the construction contract by the railroad company with Snell, Taylor & Co., but before it was performed, parties interested in- having a depot at Pellsville were induced to subscribe an instrument in writing, whereby they respectively promised to pay to1 Pells the -amounts, respectively, thereby indicated, for the purpose of securing the location of a depot at Pellsville. The aggregate of these subscriptions was about $3400. Depots had been located along the line of said road, and one had been established at a point about one mile from Pellsville. It is claimed by Snell, Taylor & Co. that afterwards Pells applied to them to locate and construct a depot at Pellsville, and to make the necessary buildings, switches and side-tracks, etc., .and that they refused to do. so unless they were paid for so doing; that Pells then said he could and w'ould get the money for them; that they agreed to do the work desired for a sum stated, which was some $3000 or $4000 in amount. They also claim that Pells undertook and promised to pay them if they would do the work. They also claim that afterwards, and before any work was done in this regard, they, learning of the subscription that had been made to Pells, sent an agent to certain of the parties making the subscription to Pells, and requested that they execute a promissory note to Snell, Taylor & Co., instead of the subscription to Pells; that this they refused to do, but consented to, and did, execute such a note to Pells in lieu of the subscription, and in consideration of an assignment to them of the subscription to be made by Pells; that Pells subsequently surrendered and assigned to them the subscription, and took the note payable on its face to himself, but really for them, and afterwards sold and assigned the note to another party, and appropriated the proceeds to his own use ; that before the sale of the note, they, Snell, Taylor & Co., located a station at Pellsville, and caused to be constructed at that place a depot, switches, side-track, etc., and demanded of Pells the note in question, or pay for the work so done.
    This is an action by Snell, Taylor & Co., against Pells, for" money had and received to their use. The cause was brought to trial in the circuit court. At the close of the evidence the plaintiffs, among other things, asked the court to charge the jury, in substance,—
    First—That if defendant, as the agent for the plaintiffs, received $3400, or about that sum, for the plaintiffs, and has never paid the same to the plaintiffs, and has refused to pay the same, upon demand made, before the commencement of this action, the plaintiffs are entitled to recover the same, unless barred by the Statute of Limitations.
    Second—That if plaintiffs were contractors to build the railroad in question, and had, by their contract, the right to . locate the depots of said road, except in' McLean county, and if, in pursuance of that contract; they had located all depots necessary for the use of the railroad and the accommodation of the public, and if, in addition to such depots, the people of and about Pellsville desired a depot for the special benefit of that community, and if plaintiffs agreed with defendant, or with defendant and others, that in consideration of a note to be executed by parties in the vicinity, for the sum of $3400, for the benefit of plaintiffs, they would put in a side-track and locate and build a depot at Pellsville, and if a note for that amount was executed to defendant in pursuance of the foregoing contract, and if plaintiffs, on notice of that fact, did locate a depot, and 'cause the same and a sidetrack to be built at Pellsville, and if, afterwards, defendant collected the note, or sold it, and received money for it, and has not paid, but has refused, after demand made, to pay the same to plaintiffs,—in that case plaintiffs are entitled to recover the same from defendant, unless barred by the Statute of Limitations.
    Third—That if defendant, as the agent of plaintiffs, received from certain residents at and about Pellsville, a note for $3400, in payment for the construction of a switch and depot at Pellsville, and after receiving the same the defendant sold and assigned the note, and received the money therefor, and appropriated the same to his own use, in such case defendant is estopped to deny the title to the money so received.
    But the court refused to give either of said instructions, and, against the objections of plaintiffs, charged the jury in substance as follows:
    First—That if plaintiffs rely for a recovery upon a contract made either with the makers of the note or with defendant to locate a switch and station at Pellsville, when neither the public convenience nor the interests of the stockholders of the railroad company require it, but solely to get money for the job, then such contract is void, and plaintiffs can not recover upon it if Pells was a director of said railroad company, and was employed by plaintiffs, as their agent, to raise the money upon such contract, and by subscription.
    Second—A contract made between individuals and officers of the company to secure the location of a station upon a railway, when it was not needed either by the public or railway company, would be in the nature of a bribe; and if plaintiffs made such a contract with the makers of the note in question, they could not recover from them upon such a contract if they were defendants in this action; neither can they recover upon such a contract against defendant, Pells, if Snell,.on behalf of the plaintiffs, made such a contract with him, if he was a director of the company at that time.
    To these rulings plaintiffs excepted, and declining to argue the facts to the jury, suffered a verdict and judgment to go against them, under an agreement of the parties, with the approbation of the circuit court, that the only question to be preserved on appeal should be the one based upon the giving and refusing of said instructions, stating the rule by which the jury should be governed in determining the legality or illegality of such contract and subscription. The case comes here through the Appellate Court, by appeal of the plaintiffs below.
    Messrs. Weldon & McNulta, Mr. Hamilton Spencer, and Mr. Calvin H. Frew, for the appellants.
    Mr. A. Sample, and Mr. Charles H. Wood, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

The only question for our consideration in this case arises upon the rulings of the court upon the instructions in the case.

The bill of exceptions does not profess to give all the evidence introduced on the trial. The suggestion of counsel for appellee, that the proofs are not sufficient to require the law as to the supposed agency of Pells to be given to the jury, - can not prevail. The instruction given by the court for the defendant, assumes that sufficient proof of his agency was given to present the questions of law passed upon by the court. The only question brought to this court by agreement of the parties, as stated in the bill of exceptions, with the approbation of the circuit court, is that of the effect of the alleged illegality of the contract and subscription. That allegation of illegality rests solely on the contention the contract and subscription were against public policy.

The court charged the jury, that if plaintiffs rely for a recovery upon a contract made either with the makers of the note or with defendant to locate a switch and station at Pellsville, when neither the public convenience nor the interests of the stockholders of the railroad company required it, but solely to get money for the job, then such contract is void, and plaintiffs can not recover upon it if Pells was a director of said railroad company, and was employed by plaintiffs, as their agent, to raise the money upon such contract, and by subscription.

Whatever may be thought as to the legality of such a contract or subscription, its illegality, if any, rests solely upon the suggestion that the same is merely against public policy, and not upon the ground that there is anything immoral or criminal in such a contract. In such case, an agent who has ¿received money for his principal caii not, by law, set up such supposed illegality as a reason why he should not pay over the same to his principal. The law, in such case, does not permit the agent to make such defence. He is estopped by the relation of agency, and receipt of the money. Upon this ground the judgment of the circuit court ought to have been reversed by the Appellate Court,- and remanded for a new trial. The writer of this opinion goes farther, and holds that the " contract, as stated in the instruction, is not vicious, as being against public policy. .1 think that when a-railroad company has established such depots as meet the wants of the public, and all such as the interests of the railroad company require to be constructed, at its own cost, and where some one or more of the men doing business near the line of the road desire, for their special convenience, the construction of an additional station, and are willing to pay a sufficient sum to make it to the interest of the company to build such station and construct its necessary switches or side-tracks, there is no impropriety in the acceptance of the proposition by the railroad company, and the construction and maintenance of such additional depot, if it will pay to maintain it after it is constructed. Such a contract would necessarily be made, if made at all, with the directors or other agents or officers of the company.

Appellee relies upon certain decisions of this court as teaching a different doctrine, but they have no application to the case presented here. In Bestor v. Wathen, 60 Ill. 138, persons owning land on the line of a railroad, contracted with certain officers of the railroad company to convey to them, individually, a-certain interest in the land, for the sole consideration that the grantees would aid, assist and contribute to build up a town upon the land. It was held-the contract could not be enforced. It was in the nature of a bribe to the officers of the company, to induce them to manage the affairs of the road to promote their private interest, at a sacrifice of the interests of the public and those of the stockholders. In Marsh v. Fairbury, Pontiac and Northwestern Railroad Co. 64 Ill. 414, it was held that a contract by a railroad company - to locate and construct a depot at a given point in a town> - and at no other place in that town, was not binding, for the public convenience and the-interests of the stockholders might require a depot at some, other point, and in such ease it would be a violation of duty and trust to omit to conform to such requirement. And in St. Louis, Jacksonville and Chicago Railroad Co. v. Mathers, 71 Ill. 592, an agreement by a railroad company not to establish another depot or station within three miles of a given station, was for the same reason held invalid.

The principle of these decisions is, that no contract by a railroad company which obstructs or restrains it in the performance of any of its duties to the public or to its own stockholders, can properly be held valid or be enforced by the courts; and no contract with any director or officer of any railroad company which creates in him a private interest, which will stand in the way of a fair and just performance óf his duties to the public or to the stockholders of his company, can be sustained. Now, it may be that no interest of the general public required a depot at Pellsville. It may be that the interests of the stockholders did not require a depot to be made at that place at the expense of the company; but it is- not perceived that the interests of the public or those óf the stockholders could, by any possibility, be injuriously affected by the construction of a depot at that place, at the expense of appellants, or at the expense of one or more of the neighbors who had an interest in having such a depot there. Had the contract been to pay to Pells money for his own use, to induce him, as ■ a director, to cause the railroad company to construct the depot at the expense of the corporation, it would doubtless have been a transaction in the nature of a bribe. It may be conceded that the establishment and construction of a depot at that point by appellants is, in one sense, the same as if it were located and constructed by the railroad company. In so far as they had power to locate stations under their contract, they were the agents of the railroad company; but, as already suggested, the establishment and construction of an extra depot not at the expense of the company, can not possibly harm either the interests of the public or those .of the stockholders, só long as it does not restrain the construction of depots elsewhere when needed by the public, and does not cost the railroad company' anything for its construction. There is absolutely nothing in the position of Pells, as a director, or in that of appellants, as agents and contractors of the railroad company, which should forbid him to give his own money, or to induce others to give their own money, to procure, without expense to the railroad company, an extra depot for their own accommodation, or to forbid appellants to construct the same at their own cost, for an agreed compensation, to be paid them from funds other than those of the railroad company.

These are my views. But the ground on which the majority of the court place the decision of this case, and in which I concur, is, that if Pells, as the agent of plaintiffs, received the proceeds of the note in question, he can not, as against his principals, set up the supposed illegality of the arrangement as a reason why he should not pay the money which he has received for them. This the instruction given for the defendant permitted him to do.

For this error the judgment of the Appellate Court is reversed, and the cause remanded, that the judgment of the circuit court may be reversed and a new trial ordered. '

Judgment reversed.

Walker and Scott, JJ.: We do not concur either in the reasoning or conclusion in this case.

Mr. Justice Mulkey was not present, and took no part in the consideration of this case.


text:
    John M. Hamilton et al. v. Town of Harwood et al.

      Filed at Springfield

      January 31, 1885.

    Cebtiobabi at common law—of the office of the writ. A common law writ of certiorari can not be employed as a substitute for an appeal or writ of error, to enable an appellate court to review the rulings of the inferior court upon the law and the evidence in the progress of the trial, and in the application of the law to the facts. The only office of the writ is to bring before the court awarding it, the record of the proceedings of the inferior , tribunal, and the judgment must be either that the writ be quashed and a procedendo awarded, or that the record of the proceeding be quashed for want of jurisdiction,' or for illegality in the mode of procedure.
    This was a petition for a common law writ of certiorari, to review a judgment of the Appellate Court in the case of Highway Commissioners v. Hamilton et al., brought to that court on appeal from the circuit court of Champaign county.
    Mr. Thomas J. Smith, for the petitioners.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is a petition for a common law writ of certiorari. It is assumed by the petition that such a writ may be used as a complete substitute for a writ of error or an appeal, and that, by virtue of it, errors in ruling upon the law and the evidence in the progress of the trial, and in the application of the law to the facts in the rendition of judgment, may be corrected. This is a grave misapprehension. The office of the writ is. only to bring before the court awarding it, the record of the proceedings of the inferior tribunal, and the judgment must either be that the writ be quashed and a procedendo awarded, or that the record of the proceedings be quashed. Chicago and Rock Island Railroad Co. v. Fell, 22 Ill. 333; Com’rs of Sonora v. Supervisors of Carthage, 27 id. 140. The rulings of the court upon the law and the evidence in the progress of the trial, and in the application of the law to the facts in the rendition of judgment, can not be reviewed in this manner. We can only inquire, when a return is made to the writ bringing the record before us, whether the inferior court had jurisdiction and proceeded legally,—i. e., followed the form of proceeding legally applicable in such cases,—and not whether it correctly decided the questions arising upon the admission or exclusion of evidence, the giving and refusing of instructions, and other like questions, during the progress ofz the trial before the court and jury, and in the overruling of motions for new trials and in arrest of judgment, and the rendition of judgment after verdict, etc. The rulings of a court may be erroneous, and yet it may have jurisdiction and proceed legally.

If the position of counsel for the petitioners were correct, ' the constitutional and statutoiy limitations would be utterly useless, for in every case it would only be necessary to sue out a certiorari to bring all the rulings of the inferior court before the appellate court for review. Where decisions upon questions of law and fact arising during the progress of the trial or in the rendition of judgment, other than such as relate to the question of jurisdiction or the legality of the proceeding, are reviewable upon certiorari, it is by virtue of some statute which has no existence in this State.

No ground is shown in the petition for the issuing of the writ. It concedes, tacitly, at least, that the court had jurisdiction, and no attempt is made to point out illegality in the proceeding, in the case sought to be reviewed.

Petition denied.