source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    William G. Wetherell v. William M. Devine.

      Filed at Springfield March 27, 1886.

    1. Municipal taxation—constitutional limitation—generally. Under sections 9 and 10, of article 9, of the constitution, the legislature can not grant the right to assess and collect municipal taxes except to the corporate authorities of the municipalities or districts to be taxed, and for corporate purposes, and not then without the consent of the tax-payers to be affected.
    2. Same—consent of tax-payers—what so considered. Where the qualified voters of an incorporated city, at an election duly authorized, adopt a law affecting the corporate interests and welfare, whereby additional expenses are incurred, which the law requires the city to pay when properly audited, this will amount to an assent on the part of the people therein, to taxation, to meet and defray such expenses, and to carry the law into execution.
    3. Same—“corporate authorities”—election commissioners. The corporate authorities who alone are authorized by the constitution to levy municipal taxes, are those authorities who are either directly elected by the population to be taxed, or are appointed in some mode to which they have given their assent.
    4. Therefore, where the people of an incorporated city, by a vote duly authorized, adopt an election law providing for the appointment of election commissioners, who are to incur expenses, and create a debt upon the city to defray the same, and the law provides for the appointment of such commissioners by the county court, they will be regarded as corporate authorities for the purpose of incurring such expense and indebtedness, and as appointed by the consent of the people of the city.
    5. Same—auditing election expenses by county judge, as distinguished from the levy of a tax to pay them. An act of the legislature requiring a municipal corporation to pay certain election expenses when audited by the county judge and his warrant drawn for the amount, is not in violation of the constitutional principle which forbids the levy of municipal taxes by any person or officers other than the corporate authorities. The county judge, in such case, does not provide for the means of payment of the warrants drawn by him.
    6. Same—“corporate purpose”—election expenses. Taxes assessed and collected by a municipal corporation to pay expenses incurred in the conduct of elections in the corporation, are for a corporate purpose, within the meaning of the constitutional prohibition against municipal taxation for any other than corporate purposes. And it will not affect the corporate character of the purpose that some of such elections may be for other than city officers.
    7. Same—counties, as distinguished from cities, etc., in the application of the constitutional limitation respecting municipal taxation. Sections 9 and 10, of article 9, of the constitution, imposing limitations and restrictions upon municipal taxation, have no reference to counties, but relate solely to taxes for cities, towns and villages.
    8. The power of the legislature over the revenues of a county is not restricted within the same limits as its power over the revenues of a city, town or village. A county, existing for public purposes only, together with its revenues, in the absence of express constitutional restriction is entirely subject to legislative control. The whole State has an interest in its revenues, and for the public good the legislature must have the power to direct their application.
    9. Same—requiring county to pay a part of the election expenses of cities, etc.—constitutionality of the Election law of 1886. The Election law of 1885, applicable to cities, etc., adopting the same, is not unconstitutional for the reason it requires the county treasurer to pay the salaries of the election commissioners. Such law may be regarded as an equitable apportionment of the burden and expense attendant upon elections in cities, towns and villages, between them and the county in which they may be situate.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. H. B. Hurd, Mr. Adolph Moses, and Mr.'George Scoville, for the appellant.
    Messrs. Rosenthal & Pence, Mr. James W. Beach, Mr. Henry 0. McDaid, and Mr. W. C. Goudy, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill in chancery, filed by William G. Wetherell, a citizen and tax-payer of Chicago, against William M. Devine, the treasurer of that city. It alleges,that the “Election law, ” so-called, which has been discussed in the case of The People v. Hoffman et al., ante, p. 587, was adopted by the city of Chicago by a majority of 17,000 votes, at an election held on November 3, 1885; that on November 24, 1885, three election commissioners were appointed by the county court, who have since qualified, and organized, as a board, in accordance with the terms of the law, so adopted; that such commissioners are proceeding to incur, and have already incurred, large expenses for office rent, stationery, etc., for which they claim payment from the city treasury, and that the judge of the county court has drawn his warrant in their favor upon the city treasurer, for the amount of such expenses; that the city treasurer is about to pay such amount to them, and threatens to do so, out of the moneys of the city in his hands ; that the act in question is unconstitutional; that the board of election commissioners is an illegal body, and has no right to incur expenses to be paid for by the city, and that the warrant so issued is not for a corporate purpose, and is void and of no legal effect. The prayer of the bill is, that the city treasurer may be enjoined from paying the said warrant or any money to said commissioners on account of their expenditures as a board of election commissioners, and from paying any warrants, drawn by the county judge in their favor for expenses incurred by them, and that the act may be declared void. The bill was demurred to by the defendant below, the demurrer was sustained, and the bill dismissed.

All other questions in regard to the constitutionality of the act concerning elections, passed in 1885, have been considered in the case of The People v. Hoffman. The only provisions of that act, which are brought before us by this record, are those, relating to the payment of the expenses, attendant upon its execution.

Article 7, entitled “Compensation,” of the “Act regulating the holding of elections, and declaring the result thereof, in cities, villages and incorporated towns in this State, ” which went into force July 1, 1885, (Rev. Stat. of 1885, chap. 46, p. 550,) provides, that the salaries of the election commissioners and of their chief clerk shall be paid by the county; that all expenses incurred by the board of election commissioners shall be paid by the city; that “such salaries and expenditures are to be audited by the county judge, and such salaries shall be paid by the county treasurer, upon the warrant of such county judge, out of any money in the county treasury not otherwise appropriated, and such expenditures shall be paid by the city treasurer, upon the warrant of such county judge, out of any money in the city treasury not otherwise appropriated.” These provisions of the act, contained in article 7, are alleged to be repugnant to the 9th and 10th sections of article 9 of the constitution. Those sections are as follows:

“Sec. 9. The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall he uniform in respect to persons and property within the jurisdiction of the body imposing the same.
“Sec. 10. The General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes, but shall require that all the taxable property within the limits of municipal corporations shall be taxed for the payment of debts contracted under authority of law, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. Private property shall not be liable to be taken or sold for the payment of the corporate debts of a municipal corporation.”

These sections in the constitution of 1870, or a similar section in the constitution of 1848, have been frequently construed by this court, and by the Supreme Court of the United States. Updike v. Wright, 81 Ill. 49, and cases there cited; Weightman v. Clark, 103 U. S. 256; County of Livingston v. Darlington, 101 id. 407; Hackett v. Ottawa, 99 id. 86; Township of Elmwood v. Marcy, 92 id. 289; Cornell v. The People, 107 Ill. 372. The decisions in these cases lay down three propositions, as clearly deducible from the sections here quoted: First, the General Assembly can not grant the right to assess and collect taxes to any other than the corporate authorities of the municipalities or districts to be taxed; second, taxation by such municipal or corporate authorities must be for-corporate purposes; and third, such taxation can not be imposed without the consent of the tax-payers to be affected.

The expenses incurred by the election commissioners, which the city is required to pay, are for office rent, clerk hire, stationery, printing, books, registers, poll-lists, blanks, ballots, ballot-boxes, etc. These expenses are incurred by the election commissioners. They are audited by the county judge, and warrants for them are drawn by the county judge, but it is “the governing authority” of the city, which is intrusted with the duty of providing for their payment. (Art. 7, sec. 277.) The assessment and collection of taxes for the payment of these expenses are not taken out of the hands of the corporate authorities of the city, but are expressly- left with those authorities.

But it may be said, that the power to impose a tax, and the power to create a debt to be discharged by the levy of a tax, are substantially the same thing, and that, therefore, the election commissioners who incur these expenses, and thereby create the debt to be discharged by taxation, are the authorities, who impose the tax. If this be so, then the question arises, who are the “corporate authorities,” referred to in the constitution ? We have defined them to be those authorities, who are either directly elected by the population to be taxed, or appointed in some mode, to which they have given their assent. (Harward v. St. Clair Drain. Co. 51 Ill. 130; Hessler v. Drainage Comrs. 53 id. 105; Cornell v. The People, supra.) The bill in this case having been demurred to, its allegations are admitted to be true, and one of those allegations is, that the Election law has been adopted by the votes of the people of Chicago by a majority of 17,000. Although the'commissioners have not been elected by the people of the city, yet, by adopting the law, the people have given their assent to the appointment of such commissioners by the county judge. These commissioners have been appointed in a mode to which the population to be taxed have given their assent. They are, therefore, such “corporate authorities, ” as are contemplated by the above sections of the constitution, just as, in Cornell v. The People, the South park commissioners, though appointed by the circuit court, and not elected by the people, were held to be corporate authorities, because the people to be affected by the Park act, had adopted it by their votes.

The next question is, whether the taxes to be assessed and collected for the payment of the expenses in question are to be assessed and collected for a “corporate purpose.” A corporate purpose has been defined to be “some purpose, which is germane to the general scope of the object, for which the corporation was created,” or such as has a legitimate connection with that object, and a manifest relation thereto. (Weightman v. Clark, supra; The People v. Dupuyt, 71 Ill. 651.) A tax for a corporate purpose has been defined to be “a tax to be expended in a manner, which shall promote the general prosperity and welfare of the municipality, which levies it. ” (Hackett v. Ottawa, supra; Taylor v. Thompson, 42 Ill. 9.) In Taylor v. Thompson it was held, that a tax, levied upon the property of a township for the purpose of raising bounties to secure volunteers in the late war, was a tax for “corporate purposes.”

The expenses mentioned, in the bill in this case, are incurred in the conduct of elections. Is the conduct of an election a corporate purpose? Are taxes, imposed for the purpose of paying the expenses of conducting elections, such taxes, as are assessed and collected for corporate purposes ? “Municipal corporations are bodies politic and corporate, * * * established by law, to share in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or*district, which is incorporated.” (1 Dillon on Mun. Corp. sec. 9b.) A municipal corporation can not share in the civil government of the country, nor regulate and administer its internal affairs, except through its officers. Its chief officers are elected by the people. The cities in this State, which have adopted the general act for the incorporation of cities and villages, are under charters, which provide for the election of aldermen, mayors, city clerks, city attorneys and city treasurers. The. conduct of elections is, therefore, a purpose, which is germane to the object, for which municipal corporations are created. Elections certainly have a legitimate connection with that; object, and a manifest relation thereto. For the government, of municipal corporations can not be carried on, except, through the action of official agents, the chief of whom become such, solely through the medium of elections. Nor can it be denied, that the proper conduct of elections tends to-“promote the general prosperity and welfare of the municipality. ” It does not affect the corporate character of the purpose, that some of the elections, occurring in the city, may be-for other than city officers. The city is a part of the county and a part of the State, and its welfare depends, in no small, degree, upon the character of the officers, who conduct the-county and State governments.

The third and last point, involved in the constitutional limitation under discussion, is, that taxation for these expenses can not be imposed upon the tax-payers of the city without, their consent. This objection is met by the statement already .made, that the people of Chicago have adopted the Election-, law by an overwhelming majority. By so doing, they have-consented to be taxed for the purpose of raising funds to-meet the necessary expenses of carrying the law into execution. We are, therefore, of opinion, that requiring the city to-provide for the payment of the expenses, incurred by the election commissioners, is not in conflict with sections 9 and 10 of article 9 of the constitution.

Whether or not that portion of the act, which requires the-county to pay the salaries of the commissioners, and which makes it the duty of the governing authority of the county to-provide for the prompt payment of such salaries, is valid under the constitution, is a question not made directly by the record in this cause. But as it has been elaborately argued by counsel on both sides, and is likely to arise in giving effect to the law, it may not be improper to state the views we entertain on the subject.

Sections 9 and 10 of article 9 of the constitution, as above quoted, have no reference to counties. They “relate to and regulate the taxes for cities, towns and villages.” (Braun et al. v. City of Chicago, 110 Ill. 186.) Section 5 of article 9 of the constitution of 1848 declared, that “the corporate authorities of counties, townships, school districts, cities, towns and villages, may be vested with power to assess and collect taxes for corporate purposes,” etc. But when a similar provision was embodied in sections 9 and 10 of article 9 of the constitution of 1870, the word, “counties,” was omitted. The decisions, already referred to, which deny to the legislature the power to grant the right to assess and collect taxes to any other than corporate authorities, and for any other than corporate purposes, and subject to the assent of the parties to be taxed, were, most of them, rendered when the question before the court was the construction of section 5 of article 9 of the constitution of 1848. In so far as those decisions have reference to cities, towns and villages, the views, which they express as to the limitations of the legislative power in the respects indicated, apply as well to sections 9 and 10 of article 9 of the constitution of 1870, as to section 5 of article 9 of the constitution of 1848. But, in so far as those cases have reference to counties, the rules of construction, therein announced, do not'apply to sections 9 and 10 of article 9 of the new constitution. This becomes apparent upon an examination of section 8 of article 9, which provides, that “county authorities shall never assess taxes, the aggregate of which shall exceed seventy-five cents per one hundred dollars’ valuation, * * * unless authorized by a vote of the people of the county. ” Impliedly, therefore, they may assess taxes, the aggregate of which does not exceed seventy-five cents per one hundred dollars’ valuation, without a vote of the people of the county.

The power of the legislature over the revenues of a county is not restricted within the same limits, as its power over the revenues of a city, town or village. A county is a public corporation, which exists only for public purposes, connected with the administration of the State government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control. (Marion County v. Lear, 108 Ill. 343; 1 Dillon on Mun. Corp. sec. 10 a.) “The revenues of a county are not the property of the county in the sense, in which the revenue of a private person or corporation is regarded. The whole State has an interest in the revenue of a county, and, for the public good, the legislature must have the power to direct its application. The power, conferred upon' a county to raise a revenue by taxation', is a political power, and its application, when collected, must necessarily be within the control of the legislature for political purposes. ” (Marion County v. Lear, supra.) “Elections belong to the political branch of the government. ” (Dickey v. Reed, 78 Ill. 261.) In considering an act of the legislature, which apportioned certain revenues between the city of Springfield and Sangamon county, in which that city is located, Mr. Justice Brbese said, in The People v. Power, 25 Ill. 187: “This act * * * nowhere proposes to take from the county * * * and give to the city * * * any property belonging to the county, or any revenues collected for the use of the county. But if it did, it would not be objectionable.” County of Richland v. County of Lawrence, 12 Ill. 1; Sangamon County v. City of Springfield, 63 id. 66; Logan County v. City of Lincoln, 81 id. 156; The People v. Supervisors, 100 id. 640 ; Harris v. Board of Supervisors, 105 id. 445.

In the light of the views here expressed, it would seem that the legislature was authorized to require the payment of the salaries of these election commissioners by the treasurer of Cook county. In The People v. Stookey, 98 Ill. 537, it was held, that the county treasurer of St. Clair county could not be compelled to pay the fees of grand and petit jurors for services in the City Court of East St. Louis, on the ground that “city courts are local in their territorial jurisdiction, are only open to persons within the city, and are maintained for the interest or convenience of the people in the city, and for that reason it would be unjust to impose the burden of maintaining them on the people of the county, who have no benefit from or interest in such courts.” It was there held,that the expenses of courts, which were “coextensive with the county, and open to all the inhabitants of the county, ” could be properly paid out of the county treasury. One test, then, of the right to call upon the county to pay for a given service, is the extent, to which that service concerns and benefits all the people of the county.

The election commissioners “have charge of and make provision for” all county elections. Counties elect circuit and county judges, circuit and county clerks, sheriffs, treasurers, coroners, prosecuting attorneys, etc. Where elections in a city or town, which has adopted the law, are held for the purpose of selecting county officers, they concern and interest all the people of the county, and their scope and influence are coextensive with the limits of the county. The legislature of this State passed an act, which provided that, where a bridge was constructed in any town, half its cost should be borne by the town, and the other half, on certain conditions, by the county. In the ease of Supervisors v. The People, 110 Ill. 511, the question was whether the county authorities of Will county could be compelled to levy and collect a tax to pay for half the cost of the construction of an iron bridge across the Kankakee river, in the town of Wilmington, in that county. The point was made, that the balance of Will county could not be taxed to pay for a local improvement in the town of Wilmington. So, here, it is contended, that the balance of Cook county can not be taxed to pay the salaries of election commissioners, whose services are rendered in Chicago and the town of Lake. In the Will county case it was held, that taxation for the building of the bridge was not the levying of a tax for a local corporate purpose, on the ground that the people at large were interested in the construction of bridges and highways. It is difficult to see how the people of the State can be any more interested in the building of bridges and highways than in the election of proper officers in the counties of the State. For “counties are mere political divisions of the territory of the State, as a convenient mode of exercising the political, executive and judicial powers of the State. They were created to perform public, and not private, functions. They are wholly public in their character, and are a portion of the State organization. ” (Harris v. Board of Supervisors, supra.)

But it is said, that the commissioners have charge of the local elections, held for the purpose of selecting the local officers in the particular city or town, which may have adopted the law, and that, so far as the salaries are compensation for such local.services, they are not a proper subject of taxation against the rest.of the county. The law in question seeks to make an equitable apportionment of election costs between the county and the city. Under the general Election law of the State, the counties bear all the expenses of county elections, such as ballot-boxes, blanks, poll books, per diem of special constables, mileage of judges, etc. These expenses are largely increased in a county, where a populous city requires an increase in the number of precincts and election officers. By the terms of the act under consideration, these county expenses, so far as they arise from the participation of the city in county elections, are all borne by the city, and the county is relieved of them entirely. Therefore, the county receives its compensation for paying such portion of the salaries of the commissioners, as it properly belongs to the city, to pay, by the city’s assumjng to discharge those portions of the election expenses, which it properly belongs to the county to pay. If the county assumes a portion of the city’s burden, the city assumes a portion of the county’s burden. A statute which authorizes this to be done can be sustained upon the principle of commutation. Cooley on Taxation, 137, 172; Board of Supervisors v. Campbell, 42 Ill. 490; Hunsaker v. Wright, 30 id. 146; Parmelee v. Chicago, 60 id. 267; Chicago v. Sheldon, 9 Wall. 50; Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291; Bank of Illinois v. The People, 4 Scam. 303. In Hunsaker v. Wright, the city of Cairo was exempted from road and county taxes, in consideration of its supporting certain paupers and paying certain jail fees and court expenses. In Board of Supervisors v. Campbell, the county was relieved of the support of city paupers and the prosecution of city criminals, in consideration for which the city of Macomb was exempted from county taxes, except for the railroad debt. The prohibition against commutation for taxes, contained in section 6 of article 9 of the present constitution, refers only to taxes to be levied for State purposes. The salaries of the commissioners are properly payable out of the county treasury.

The decree of the court below is affirmed.

Decree affirmed.

Mulkey, G. J., and Scholeield, J., dissenting.


author: Mr. Chief Justice Mtjlkey

text:
    Michael Gormley et al. v. Gertrude Uthe.

      Filed at Ottawa May 15, 1886.

      1. Swamp lands— grant to the State of “unsold” swamp lands—grant construed. The act of Congress of September 28, 1850, granting to this State all unsold swamp lands within its borders, did not pass to the State the title to such land as the government before that time had agreed or assumed to grant to others. It did not pass to the State any tract upon which the land officers had allowed a military bounty warrant to be located before its passage.

      2. On the tenth day of July, 1850, the holder of a military bounty land warrant located the same on a tract of land in this State, which the evidence showed to be swamp land. On September 28, 1850, Congress passed an act granting to this State all unsold swamp and overflowed lands within its borders. On February 10,1851, the United'States issued a patent to the loeater for the land: Held, that the patent passed the title to the patentee.
    3. Statute—construction—what looked to for the meaning of words used. In giving a construction to the words used in a statute, many things are to be kept in view, such as, the object or purposes of the act, the connection in which they are used, and the consequences that will probably result from the proposed construction; and so in one enactment a word may be construed in an enlarged sense, and in another its meaning may be limited and contracted.
    4. Evidence—exemplified copies of entries in land office. An exemplified copy of an entry in the land office of the United States is admissible in evidence to show the location of a land warrant upon a tract of the public land by the holder of the same.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Morton & Culver, for the plaintiffs in error:
    This is the third time this case has been before the Appellate Court, in one shape or another, and twice the judgments of the court below have been reversed, and the cause remanded. Gormley v. Uthe, 1 Bradw. 170; Culver v. Uthe, 7 id. 468.
    The act of Congress of September 28, 1850, granted all unsold land in - this State which was swamp or'overflowed land, to the State. Railroad Co. v. Smith, 9 Wall. 99; Keller v. Brickey, 78 Ill. 133.
    To show this tract had been sold to Uthe prior to the passage of that act, the plaintiff offered in evidence exemplified copies of a military bounty location. There was error in its admission, first, because there was no proof of any of the signatures; (Russell v. Whiteside, 4 Scam. 7;) second, be-cause it is not admissible under the common law, or any law of this State or the United States; and third, because at any rate, even if admitted, it would not prove a sale. States, etc. v. McFarland, 110 U. S. 471.
    The older patent carries the title. Bruner v. Manlove, 1 Scam. 156.
    The act of September 28, 1850, is a grant in prcesenti. (Railroad Co. v. Smith, 9 Wall. 99.) A grant in prcesenti is a patent, and a patent only passes title. Wilcox v. Jackson, 13 Pet. 498.
    Mr. William H. Condon, and Messrs. Booth & Booth, for the defendant in error:
    The exemplified copy of the military bounty location was admissible under the common law. 1 Greenleaf on Evidence, sec. 485.
    Congress never intended to grant lands situated as this was at the date of the passage of the act of 1850. Uthe had given up his warrant, and was then the owner of the land, although his patent had not then been issued. The land was sold to him for the purpose of and within the meaning and intention of that act.
    Gormley and Culver knew at the time of this purchase that this was swamp land. If they wished to rescind their contract, it was their duty to act promptly, and not wait to speculate on the effect of the drainage scheme, or the rise in market value. This delay is fatal to the defence. 2 Parsons on Contracts, 677; Hodson v. Davis, 2 Camp. 530; O'Kell v. Smith, 1 Starkie, 86.
   Mr. Chief Justice Mtjlkey

delivered the opinion of the Court:

Gertrude Uthe, the defendant in error, recovered a judgment in the circuit court of Cook county, against Michael Gormley and Morton Culver, plaintiffs in error, for $7039. A remittitur of $39 was subsequently entered, reducing the judgment to $7000, which was affirmed, on error, by the Appellate Court for the First 'District.

The action below was assumpsit, the plaintiff counting upon eleven promissory notes given by the defendants to the plaintiff for a certain quarter section of land near Chicago, which the plaintiff conveyed to them wdth the usual covenants of warranty. To the declaration, which was in the usual form, the defendants pleaded, first, non-assumpsit; second, total failure of consideration; and third, set-off. Issues of fact were joined on these pleas, and tried' before the court and a jury, with the result stated.

The lower courts, to reach the conclusion they did, must have found that the defendants made the notes as charged in the declaration, that there was no failure of the consideration for which they were given, and also that the plaintiff was not indebted to the defendants by way of set-off. So far, therefore, as the case depends upon these findings of the lower courts, plaintiffs in error clearly can have no relief here.

The controlling question in the trial court was, whether the title to the land in question was in the defendant at the time of her conveyance to plaintiffs in error. The plaintiff, on the trial, made out a prima facie ease by putting in evidence the eleven notes sued on, and thereupon rested. The defendants then proved the notes were given to secure the purchase money for the quarter section of land in question, and that contemporaneously with their execution, and as part of the same transaction, the plaintiff conveyed the land to defendants by a general warranty deed. It was further shown that said land is swamp land, and was so on the 28th of September, 1850, when the act of Congress, granting the unsold swamp and overflowed lands to the State, went into effect. The act itself was also put in evidence, together with an exemplified copy of the patent from the United States, for the land, issued on the 10th of February, 1851, to Christopher F: Uthe, the father of the plaintiff, and through whom she derives title. The defendants then rested. Upon this showing, the grant to the State being anterior to the issuing of the patent, the title to the land appeared to be in the State. To meet the prima facie defence" thus" made, the plaintiff then proved by an exemplified copy of so much of the records of the land office as relates to the location of military bounty land warrant No. 37,714, that the same was, on the 10th day of July, 1850, duly located by the said Christopher F. Uthe on said quarter section of land, in pursuance of which the patent of the 10th of February, 1851, was issued to him, as above shown.

This being all the evidence, the court, on the trial, refused to instruct the jury, at the instance of the defendants, that if they found the facts as above set forth, the law7 was w7ith the defendants, and that they should find accordingly. The ruling of the court in this respect presents the only question necessary to be considered.

As the grant by Congress extends to all swamp and overflowed lands in the State remaining unsold at the time of the passage of the act, it is contended by plaintiffs in error, that notwithstanding the" location of the warrant by Uthe upon the land, the title thereto nevertheless passed to" the State under the grant, and that therefore Uthe took nothing by his patent. This contention is founded upon the technical doctrine that w'here land or other property is bargained and disposed of for a consideration other than money, the transaction, in contemplation of law, is not a sale, but a mere barter or exchange. This we concede to be the general doctrine on the subject. But it does not necessarily follow that in construing the word “sale” or “sold” where it occurs in a statute, it may not be used in a different sense or have a more extended meaning. In giving a construction to W'ords in a statute, many things are to be kept in view, such as, the object or purposes of the act, the connection in which they are used, and the consequences that will probably result from the proposed construction. Influenced by these considerations, the same word may mean one thing in one statute and a different thing in another. In one enactment the ordinary meaning of a word may be enlarged, in another contracted. In the present case we do not think the word “sold,” occurring in the first section of the act in question, is used in its strictly technical sense, as claimed, but in a more extended sense of the term, so as to exclude from the operation of the grant all lands which the United States had, by any valid agreement, already disposed of at the time the act took effect, whether technically a sale or not. The location of the warrant was authorized by law, and, when made, was a valid act, mutually binding upon the government as well as the party making it. It is unreasonable to suppose, therefore, that Congress, in making the grant of swamp lands to the State, could have intended, even conceding it had the power to do so, to defeat and abrogate, by mere legislative enactment, all entries of land by military bounty warrants for which patents had not been issued at the time of the passage of the act.

But if counsel for plaintiffs in error is correct in his reasoning, it is not readily perceived how the issuing of a patent would have helped the matter, for ¡the mere issuing of the patent could not have changed the character of the consideration paid for the land, and, according to the technical common law rule, there can be no sale in any case where the consideration is anything other than money. The case of States of Iowa and Illinois, Petitioners, v. McFarland, 110 U. S. 471, cited by counsel, we do not regard as in conflict with the view here taken. The court, in that ease, construed the word “sale, ” as it occurred in the statute then under consideration, according to its strict technical signification, and we fully concur in the conclusion reached. The context and presumed intention of Congress, under all the circumstances, we think, demanded that construction. That case, so far from being in conflict with the view here taken, well illustrates what we have said in this.

It is also objected that the court erred in admitting in evidence the exemplified copy of the land office record showing the location of the land warrant in question. There is no force in this objection. 1 Greenleaf on Evidence, sec. 485.

It follows from what we have said, the defence in the ease was not made out, and the judgment, therefore, will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Decatur C. Millard v. William W. Marmon.

      Filed at Springfield May 14, 1886.

    1. Infancy—as a defence against a judgment rendered without a guardian ad litem having been appointed. A plea to an action of debt upon a judgment of a justice of the peace, that at the time of the rendition of the judgment the defendant was an infant within the age of twenty-one years, and that said cause of action upon which the judgment was rendered did not originate or accrue to plaintiff by reason of any tort committed by the defendant, or for any necessaries furnished to defendant, and that no guardian ad litem was appointed for him by said court in which the cause was pending and judgment rendered, to appear before him and set up his lawful defences, is bad on demurrer, presenting no defence to the action.
    2. The judgment so rendered by the justice against the minor without the appointment of a guardian to defend, in a case where the court has jurisdiction of the subject matter of the suit and of the person of the defendant, is not void, but only voidable.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.

      Mr. George B. Graham, for the plaintiff in error:
    In Whitney v. Porter, 23 Ill. 445, the court hold that although there was service on a minor defendant, yet without the appointment of a guardian ad litem the court failed to obtain jurisdiction, and held the judgment void. The court in other cases hold this omission to be an irregularity,—an error, in fact,—and voidable, only. Peak v. Shasted, 21 Ill. 137; McDaniell v. Correll, 19 id, 226; Mains v. Casner, 62 id. 465; Kesler v. Penninger, 59 id. 134.
    Section 67, chapter 110, of the Revised Statutes, provides that all errors in fact committed in the proceedings of any case, in any court of record, may be amended in such court; but the act, being expressly limited to courts of record, does not extend or apply to justices of the peace.
    As the defendant could neither remove the record by appeal or certiorari, and could not correct the error by motion, it is insisted the plea is a good defence, otherwise the law affords no protection to an infant.
    Messrs. Moore & Warner, for the defendant in error:
    The plea of infancy is a personal plea, which may be waived; and a judgment against an infant, where the court has jurisdiction of his person and the subject matter, is as obligatory upon him as though he ivere an adult. Cooley’s Const. Lim. (4th ed.) 510, 511; Blake v. Douglass, 27 Ind. 416; Townsend v. Cox, 45 Mo. 401; Milne v. VanBuskirk, 9 Iowa, 558; Waring v. Reynolds, 3 B. Mon. 59; Porter v. Robinson, 3 A. K. Marsh. 254; Joyce v. McAvoy, 31 Cal. 273; Trapnall v. State Bank, 18 Ark. 63; Walker v. Sleight, 30 Iowa, 326; 4 Wait’s Actions and Defences, 196; Austin v. Trustees, 8 Metc. 196; Freeman on Judgments, secs. 151, 513; Lemon v. Sweeney, 6 Bradw. 507.
    Judgment against an infant must be avoided by liim during his minority, and if it is not so avoided by a direct proceeding in the- nature of a writ of error, he will not be allowed to dispute it. Tucker v. Moreland, 10 Pet. 71; Tyler on Infancy, p. 64, sec. 25.
    Plaintiff in error had his remedy by motion, by appeal and certiorari, and shows no excuse for failing to avail of either one. If the failure to appoint a guardian ad litem was error, he could have availed himself of it, by motion, before the justice. Beaubien v. Hamilton, 3 Scam. 213; Peak v. Shasted, 21 Ill. 137; McKindley v. Buck, 43 id. 488; Mains v. Casner, 62 id. 465.
    The justice obtained jurisdiction of the defendant (plaintiff in error here) and the subject matter of the suit by the statute and the issuance and service of the summons, and any error in his proceedings, such as a failure to appoint a guardian ad litem, does not render the proceeding, or his judgment, void. 4 Wait’s Actions and Defences, 196; 7 id. 194; Carter v. Walker, 2 Ohio St. 339 ; Lessee v. Burnett, 18 id. 547; Tyler on Infancy and Coverture, 206, and authorities cited.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of debt, brought by William W. Marmon, in the circuit court of DeWitt.county, against Decatur C. Millard, on a judgment w;hieh the plaintiff had recovered before a justice of the peace on the 8th day of December, 1877, against Millard and one Edmiston, since deceased. To the declaration the defendant interposed a plea of infancy, as follows:

“And for further plea in this behalf, defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says that at the time of the rendition of the judgment in the plaintiff’s declaration mentioned, he, the said defendant, was an infant within the age of twenty-one years, to-wit, of the age of nineteen years, and that said cause of action upon which said judgment was rendered did not originate or accrue to plaintiff by reason of any tort committed by said defendant, nor for any necessaries furnished to defendant, and that no guardian ad litem was appointed for him by said court in which said cause was pending, tried and judgment rendered, to appear for him and set up his lawful defences to said action. And this the defendant is ready to verify, wherefore he prays judgment,” etc.

The court sustained a demurrer to the plea, and a judgment was rendered in favor of the plaintiff. The ruling of the court on the demurrer is the only question presented by the record.

The justice of the peace before whom the judgment was rendered against Millard had jurisdiction of the subject matter, it having been conferred by statute. Jurisdiction over the person was acquired by service of summons. The justice, therefore, when the judgment w’as rendered, had jurisdiction of the subject matter and of the person, and when such is the case, it is a principle of law well settled that the judgment, although erroneous, is valid until reversed or vacated in a direct proceeding. Cooley, in his work on Constitutional Limitations, sec. 408, says: “When it is once made to appear that a court has jurisdiction both of the subject matter and of the parties, the judgment which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in the application of the law to the case before it. It is a general rule that irregularities in the course of judicial proceedings do not render them void. * * * And if a party claims to be aggrieved by this, he must apply to the court in which the suit is pending to set aside the proceedings, or to give him such other redress as he thinks himself entitled to, or he must take steps to have the judgment reversed by removing the ease for review to an appellate court, if any such there be. Whenever the validity of the proceedings arises in any collateral suit, he will be held bound by them to the same extent as if in all respects the court had proceeded according to law. An irregularity can not be taken advantage of collaterally,—that is to say, in any other suit than that in which the irregularity occurs,—or on appeal or process in error therefrom. ”

The question has often been raised in the courts of the different States as to the validity of a judgment rendered against a minor where no guardian has been appointed to defend for the minor, and so far as we are advised the decisions are uniform that such judgment is not void, but only voidable. Trapnall v. Bank, 18 Ark. 63; Townsend v. Cox, 45 Mo. 401; Blake v. Douglas, 27 Ind. 416.

In Peak v. Shasted, 21 Ill. 137, (a case where a judgment was rendered against a minor in an action at law,) it was held that a minor could only appear and defend by a guardian, and if the minor failed to appear and have a guardian appointed, it was the duty of the court to appoint one to defend the action. The court also held that a judgment rendered against a minor without the appointment of a guardian, was not void, but merely voidable. In Kesler v. Penninger, 59 Ill. 134, the rule announced in the case last cited was approved, and it was held to be error to proceed to a trial without the appointment of a guardian. Here, the judgment having been rendered against a minor without the appointment of a guardian to defend the action, may be regarded as erroneous or voidable, but we are aware of no well considered case which holds that such a judgment, when called in question collaterally, as here, is void. As said before, the justice had jurisdiction of the subject matter and of the person, and although the judgment was erroneous or voidable, it can not, under any well settled rule of law, be held to be void in a collateral proceeding.

Whitney v. Porter, 23 Ill. 445, has been cited as an authority sustaining the view of plaintiff in error. The validity of the judgment in that case arose collaterally, and it was held to be void, but the decision is based upon the ground that there was no such service as required by the statute, and hence the court in which the judgment or decree was rendered acquired no jurisdiction of the persons of the defendants. Some remarks were made in the decision of the case which would seem to sustain the'view' of plaintiff in error; but what was said on that subject was not necessary to a decision of the case, and we do not regard it as authority here. If there was no service, of course the court had no jurisdiction of the person, and the judgment would be void. When that was determined, the question involved was conclusively settled. We do not think Whitney v. Porter has any bearing here.

It is urged that plaintiff in error ought to have a remedy somewhere to impeach the judgment which was rendered against him.. What his remedy is, or in what court it should be insisted upon, are questions which do not arise here, and we do not regard it as a part of our duty to volunteer advice on the subject.

The judgment of the Appllate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Henry R. Martin et al. v. Isabella H. Clark et al.

      Filed at Springfield May 14, 1886.

    1. Consideration—to support deed of assignment by wife to pay husband’s debts. An agreement of creditors to release their debtor is a sufficient consideration to support a. deed of assignment, made by the debtor and wife, of her lands to a trustee, for the benefit of the creditors.
    2. Trust—declaration of trust—what sufficient. If an agreement between a debtor and his creditors for the conveyance of the land of the wife of the former, in trust for the payment of his debts, shows upon what trust the conveyance is to be made, the copying of it in the deed before its execution will show the trust upon which she parts with her land, although she may not have signed such agreement.

      3. Same—conveyance in trust—how far absolute—of the interest remaining in the grantor. A written agreement was entered into between a debtor and his creditors, to the effect that the former should cause his wife’s lands to be conveyed to a trustee to be agreed upon, who was to have power to sell the lands and personal property to be included in the deed, and distribute the proceeds, after paying the expenses of the trust, pro rata, among the creditors, and any surplus to the debtor, and in consideration thereof the creditors agreed to release and forever discharge him from all his debts, etc., and the debtor and his wife made such conveyance, in which such written agreement was copied: Held, that by such agreement and conveyance the debtor and his wife parted with their entire interest in the lands, and the husband’s debts were forever discharged. The only interest the debtor had in the matter was any surplus that might be left after paying all his debts.
    4. Same—sale by trustee—how far binding—remedy if sale is wrongfully made. If a trustee holding land for the benefit of creditors sells and conveys the same to a purchaser, with the consent of some of the principal creditors, they will be estopped to complain that the sale is wrongful, and the sale, if wrongfully made without the consent of the cestuis que trust, can not be set aside, unless on bill filed by them without unreasonable delay. If they fail to take prompt measures to avoid the sale, they will be held bound by it.
    5. If a trustee should fraudulently convey trust property held by him, to one, without security for the price and without the consent of the beneficiaries, the latter may, on bill, have the sale set aside, and compel the trustee to proceed and further execute the trust, or perhaps have him removed and one appointed in his place to execute the trust.
    6. Fraud — inducing wife to convey her land inpayment of her husband’s debts—of the proof required. After the lapse of many years the deed of a married woman conveying her land to a trustee for the benefit of her husband’s creditors, and after the death of the party implicated in the transaction as having induced her to execute the same, should not be set aside, except it is shown by the clearest and most satisfactory evidence that it was fraudulent. It will not be set aside when it appears she was fully advised of the circumstances and of her rights, and acted after due care and deliberation.
    7. Practice in Supreme Court—error not affecting party’s interest. Where a party assigns for error the dismissal of his bill seeking to set aside a conveyance which divests him of. all title, and a mortgage given by the grantee under such conveyance, if the decree is affirmed in so far as it refused to set aside the conveyance, it will be a matter of no interest thereafter to such party whether the mortgage is set aside, or a decree foreclosing the same is reversed, or not.
    Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.

      Mr. H. T. Helm, and Mr. J. B. Mann, for the appellants.
    Mr. George F. Harding, and Mr. F. Bookwalter, for the appellees.
   Mr. Justice Scott

delivered' the opinion of the Court:

It appears from this record that on the first day of August, 1871, Pamelia Martin, since deceased, was the owner of the lands in controversy, situated in Iroquois county, consisting of four hundred and eighty acres. These lands had been conveyed to her by George K. Clark, since deceased, and were at the time encumbered by two trust deeds,—one made by Pamelia Martin and Ezra H. Martin, to David J. Lyon, dated ■January 20; 1871, to secure a note of E. H. Martin and wife to George K. Clark, of the same date, for the sum of $4000, with interest; and another trust deed, dated February 18, 1871, made by the same parties to Henry T. Helm, to secure a note of $3000, made by and to the same parties. Later on, in the same year, it appears Ezra H. Martin became and was involved in financial difficulties. His indebtedness was not very large, but some of his creditors became very persistent in their efforts to collect their respective claims. Attachment suits were commenced by one or more of his creditors, and the writs levied upon this land in controversy as the property of the attachment debtor, notwithstanding the fact the title of record was in the name of his wife. Other creditors undertook to secure their claims, and one of them had a petition prepared, and perhaps filed in the United States Court, to cause the common debtor to be placed in bankruptcy. In consequence of these legal proceedings, it seems the business of Ezra H. Martin, which was that of a contractor and builder, was so much interrupted he could not prosecute it successfully or profitably. Negotiations were entered into with his creditors, with a view to adopt measures to give him relief. Accordingly, at a meeting of his creditors called for that purpose, it was agreed that Martin should cause these lands to be conveyed to a trustee, to be agreed upon, for the benefit of his creditors, and that such trustee should have power to sell the lands and personal property to be thereafter included in a deed of assignment to be made by Martin and his wife, and to distribute the proceeds, after first paying the expenses of the trust, among all of the creditors, ratably, in proportion to their respective claims, and if any surplus should remain, it was agreed it should be paid to Ezra H. Martin. In consideration of that agreement on the part of Ezra H. Martin, and on his performing the same, his creditors bound themselves to “release and forever discharge the said Ezra H. Martin, his heirs, executors and administrators, of and from all debts, demands, actions and causes of action which they may have, in law or equity, or which may result from the existing state of things, from any and all contracts, liabilities, doings and omissions, from the beginning of the world to this date. ” This agreement was signed by the creditors and by Ezra H. Martin, but not by his wife. It bears no date, but it was evidently made about the date of the deed of assignment, which bears date the 6th day of December, 1871. The party selected as trustee, to whom the property should be conveyed under the provisions of the agreement, was Henry B. Lewis, and accordingly a deed conveying these lands to him in trust, for the benefit of the creditors, was made, executed and duly acknowledged by Ezra H. Martin, and Pamelia, his wife, and was afterwards recorded in the county where the- lands are situated. In the deed of assignment it is recited these lands are subject to the two trust deeds above mentioned, to secure certain indebtedness to George H. Clark, from whom Mrs. Martin had obtained a deed for the lands. Lewis accepted the trust created by the deed of assignment, and afterwards undertook to execute it. As before noted, Mrs. Martin was not a party to the agreement between her husband and his creditors, but it was copied into the deed of assignment, and in that way she made it declare the terms of the trust upon which she ;was willing to convey the property to the trustee.

Conceding the lands were the property of Mrs. Martin, as it is insisted they were, the agreement of the creditors to release and discharge her husband from all liability to them was a sufficient consideration to support the deed of assignment as to her. Construing the agreement and the deed of assignment together, it would seem the true construction is, that Mr. and Mrs. Martin had parted with their entire interest in these lands, whatever that may have been, and thereafter the creditors had no claims whatever against Ezra H. Martin, and looked only to the trust property for the satisfaction of their respective claims. All the possible interest the grantors-could have remaining in the lands after the making of the deed, -was the covenant that any surplus that might remain after all the creditors had been paid, should be paid to Ezra. H. Martin. After the making of the deed they had no interest whatever in the lands, nor any interest in the execution of the trust, if no surplus should remain. There is some-conflict in the evidence as to the amount of debts owing by Martin, but it is shown he owed a sum large enough, when added to the amount secured on the lands, to more than, exhaust their utmost value, so that it would seem the grantor could never have any interest even in the execution of the-trust, if the deed of assignment was valid and binding on-the grantors.

After the making of the agreement and the deed of assignment, all legal proceedings that had been instituted against Martin were abandoned, and thereafter the creditors made no-claim whatever against him on account of what he may have owed them. He was as completely discharged from all claims-of the creditors who had signed the composition agreement, as though they had been paid in money. Efforts were made-by the trustee and some of the creditors to effect a sale of the interest the trustee had in these lands, for the benefit of the creditors, as provided should be done. No sale was made of the lands until the following summer, when the interest the trustee had in the property was sold to George K. Clark, for $12,000, but out of that sum was to be deducted the amounts due on the trust deeds before mentioned, and all taxes that Clark may have paid to preserve the liens of his trust deeds, and the balance was to be paid in one and two years, with eight per cent interest. Accordingly, on the 13th day of August, 1872, Lewis and his wife, by quitclaim deed, conveyed all of the lands to George K. Clark. On the day of' the making of the deed, Lewis was about to go Bast, and did not have time to ascertain how much would be coming from Clark. It was thought it would be about $3000. A brief memorandum of the terms of the sale was made, and signed by Clark, and at the same time he gave Lewis his note for $3000, payable at one day after date. It was understood, however, that so soon as practicable the parties would ascertain the exact amount to be paid by Clark, and for that sum he was to give the trustee his notes, payable in one and two years, with interest. It was also understood that Clark was not bound to secure the amount to be paid by him, otherwise than by giving his promissory notes. The trustee claims he had the consent of the creditors to make the sale to Clark at the price he did, and to take his notes without sureties or other security. As to this fact in the case the evidence is conflicting. This branch of the ease may be remarked upon further on. The title thus acquired by Clark seems to have remained in him until the 11th day of March, 1873, when he, his wife joining with him, conveyed a part of the-lands to Sidney P. Walker, in trust, to secure the payment of his note to the Globe Insurance Company, for $4000, with; interest at eight per cent per annum. On the same day Clark and wife conveyed the residue of the lands to the same-trustee, to secure his other note to the Globe Insurance Company, for $3000, with interest at the rate of eight per cent. per annum. These trust deeds were regularly acknowledged and recorded in the proper county.

Subsequent to these transactions the original bill in this case was filed by Pamelia Martin. There is nothing in this record that shows the date of the filing of the bill, büt it was to the August term of 1873. The object of the original bill was, first, to have the deed of assignment to Lewis set -aside and held for naught, on the ground the real estate embraced in it belonged to complainant as her separate property, and that the deed had been wrongfully obtained from her; and second, to have the deed made by Lewis and wife to Clark set aside because it had been made in violation of the trust. To the original-bill, George E. Clark, Henry B. Lewis, Ezra H. Martin, the husband of complainant, and the creditors who had signed the composition agreement, were made defendants.

On the 13th day of August, 1874 George E. Clark, his wife joining with him in the execution, made another trust deed on the same lands, by which he conveyed the same to Alexander McCoy, in trust, to secure a note of $40,000, made by George E. Clark, payable to his own order. This note was indorsed by Clark, and delivered to the Globe Insurance Company.

A demurrer to the original bill having beén sustained, complainant obtained leave to, and did on the 21st of October, 1874, file an amended bill, in which the contents of the original bill were restated and some new matters alleged. So far as anything contained in this amended bill may be necessary to an understanding of the decision to be rendered, it will be stated in the brief discussion that is to follow upon the merits of the case. To this amended bill the Globe Insurance Company and Sidney P. Walker were made defendants. On the 12th day of February, 1877, a stipulation was signed by counsel to change the venue of the cause from the circuit court of Iroquois county to the circuit court of Cook county. The cause then passed from the docket of the circuit court of Iroquois county, but the record was never sent to the county to which the venue had changed. Nothing further was done in the case -until November 24, 1882, when an order was made reinstating the case on the docket of the circuit court of Iroquois county. On the 13th day of December, 1882, a supplemental bill was filed by the original complainant, in which she stated that on the 26th of October, 1877, in the District Court of the United States, George K. Clark was adjudged a bankrupt, and afterwards, on the 2d day of July, 1881, he died, leaving his widow, Isabella H. Clark, as his sole legatee. By that amendment to the bill, the assignee of Clark, and his widow, and perhaps his heirs at law, were made defendants.

On the 6th of February, 1883, Pamelia Martin, the original complainant, died, and her heirs at law, the present complainants, obtained leave to prosecute the suit on their own behalf, and to file a supplemental and amended bill, which they did on the 23d day of March, 1883. Some of the allegations of this bill introduce new matters for the first time into the case, and so far as they are important they will be noticed in the sequel. On the 4th of March, 1884, the death of Sidney P. Walker was suggested, and his heirs made defendants. At the March term, 1884, of the circuit court of Iroquois county, the "then presiding judge of that court, having been of counsel in the case, of his own motion changed the venue of the cause to the county of Vermilion, and the record was accordingly transmitted to the circuit court of that county. On the 20th of February, 1885, Abner C. Harding, by his solicitor, George F. Harding, made application to become defendant in the cause, and on the 4th of March, 1885, his application was allowed. The transcript of the record contains what purports to be an amended and supplemental bill, filed as of the date of the 13th of April, 1885, by the present complainants, but it does not appear to be signed by either of the complainants, or by any solicitor for either of them. It seems the notes made by George K. Clark to the Globe Insurance Company came into the hands of Abner C. Harding, and, after answering the original bill, he filed a cross-bill, in which he alleged the execution of the notes by Clark to the insurance company, that by indorsements thereon he became the owner of them, and asks the foreclosure of the trust deeds by which they were secured. A number of the persons made- defendants, among whom was Isabella H. Clark, the widow of George K. Clark, deceased, filed answers, in which they disclaimed any interest in the subject matter of the suit, and asked to be hence dismissed. The other defendants, both to the original, amended and supplemental bills, and to the cross-bill, answered the ¡same, but as their answers are not under oath they are not important, except as they may serve to put the matters alleged against them at issue, and it wi.ll not be necessary to state the contents of any of them, further than to say, some of defendants most interested in the lands, in their answers insist upon laches of complainants as a bar to relief in any event.

If the decree of the circuit court dismissing the original, amended and supplemental bills can be sustained, as it is thought may be done, that would dispose of the whole ease, so far as the parties assigning errors on this record are concerned. It is a matter of no interest to them, if they can obtain no relief on their bills, what decree may be rendered on the cross-bill of Harding, as between the heirs of Clark and his mortgagees, and that branch of the case will not be further considered.

The validity of the deed of assignment, so far as it affected the rights of the original complainant, Pamelia Martin, is challenged principally on the ground she was not informed as to all the facts concerning her husband’s indebtedness, and that she had no legal advice as to her rights in the premises, and therefore was overreached in the transaction by the persistent efforts of the creditors to collect their claims off her husband. It is alleged if she had known the extent of her husband’s indebtedness she would not have made the deed ■of assignment. In the supplemental bill filed by the present •complainants, it is charged the making of the deed of assignment was procured by the fraudulent conduct of George K. Clark, combining with some of the creditors, to secure the making of the deed for their personal benefit. The evidence in this record has been examined with care, and it is not perceived it sustains either ground upon which the right to relief is based. There is very little evidence in this record, other than the testimony of Ezra H. Martin, the husband of the •original complainant, that tends even in the slightest degree to impeach the fairness of the making of the deed of assignment. The deposition of Mrs. Martin was taken, as well as that of Mr. Clark, to be used as evidence on the trial, but "both were lost before the case came to a hearing. Since their depositions were taken and lost, both Mrs. Martin and Mr. ■Clark have died, so that the record does not contain the testimony of either of them. There is nothing that shows, with any degree of certainty, that Mrs. Martin was overreached, ■either by her husband or any of his creditors, or any one else, in the matter of procuring from her the execution of the deed ■of assignment for the benefit of her husband’s creditors. There was a controversy whether the lands embraced in the deed really belonged to her or to her husband. They had been attached as his property, and the creditors were about to try the question of ownership. Of this fact she was made fully acquainted. When a compromise was proposed, by which her husband was to be released and discharged from the claims of the creditors that were pressing him so hardly, she was fully informed of the terms agreed upon. In that respect there was no imposition practiced upon her. Whether the exact amount of her husband’s indebtedness was stated to her, is matter of little consequence, for an error in that respect would hardly vitiate the transaction, if otherwise fair. The most damaging testimony is that given by Martin in relation to the conduct of Clark in procuring the making of the deed of assignment and the composition agreement. It will be observed the charge, the deed of assignment and the composition agreement were procured by fraud on the part of Clark, was first made by the present complainants in their amended and supplemental bills. It was never made by the original complainant,- either in her original bill or in any of her amended bills. Nor was it ever made by any one until since the death of Clark. These facts are admitted by counsel in his argument, and the force of the objection is freely conceded, that the charge, if made at all, should have been made in the lifetime of the party alleged to have been guilty of fraudulent conduct. But this was not done. Since this charge was not made until after the death of the alleged guilty party, it has become more difficult to defend against it. What Clark, if living, would say in respect to it, of course can not now be known. He never had an opportunity to deny the fraudulent conduct with which he was charged. It is probable, if living, he would deny most, if not all, that Martin alleges against him that so seriously affects his character both as a lawyer and as a citizen. Counsel is frank enough to concede that if the charge had no other support than the testimony of one man, it should not be allowed a place in the case. The testimony of ICimmey is all the evidence, other than the testimony of E. H. Martin, that lends the slightest support to the accusation of- fraudulent conduct on the part of Clark; but that, when carefully considered, does not seriously tend to impeach the integrity of the transaction. It seems Kimmey was the legal adviser of Martin, and perhaps his wife, concerning their difficulties. Martin, he says, wanted an older lawyer, and it was agreed Clark should be associated with him. The witness says Clark advised the making of the deed and the composition agreement. Suppose he did; it is not certain, in view of what subsequently transpired, that was not the best measure that could have been adopted for the interests of both Martin and his wife. After one of these consultations this witness says he told Martin that Clark “had gone back on him. ” Notwithstanding this notice, Martin still advised with Clark, and it must have been after this interview that this witness made the draft of the papers that were subsequently executed by Martin and his wife to complete the assignment for the benefit of creditors. This witness further says he always insisted that Mrs. Martin had a clear right to the farm, and could hold it in spite of any or all of her husband’s creditors. It is true, he says that” he and Clark differed in regard to Mrs. Martin’s rights, and as to the best policy for Martin to pursue. Clark undoubtedly advised the making of the agreement with the creditors and the deed of assignment. It may be that Kimmey advised against both measures. This shows most conclusively the matter was thoroughly considered, and the arrangement entered into after the most mature deliberation and investigation. And now, after the lapse of so many years, and since the death of the party implicated, the transaction should not be set aside unless it is shown by the clearest and most satisfactory evidence it was fraudulent. That has not been done.

Passing now to consider briefly the other branch of the case, it is seen that since the death of his wife, Ezra H. Martin has conveyed to the present complainants any interest he may have had in the premises. It is also made to appear that most, if not all, of the creditors have assigned their respective claims against Martin to complainants. It is now said the present complainants stand in the shoes of the creditors, and as they claim under them, they hold all the equities that existed in their favor before or under the assignment. Conceding the correctness of the position taken, it is plain the creditors could not have the deed of assignment set aside that they had procured to be made for their own benefit. But could they have the deed from the trustee, Lewis, set aside ? Many of the creditors consented to the making of the sale to Clark as. it was made. Lewis thought he had the consent of all the parties in interest to make the sale to Clark, but as to some of the parties he may have been misinformed. But be that as it may, many of the creditors, and some of the principal ones, did consent to the sale, and they are estopped to complain it was wrongful. What rights did these creditors have who did not give their consent to the sale to Clark ? It would have been their privilege, no doubt, to have filed a bill to set aside the sale to Clark, if fraudulent, and to compel the trustee to go forward and further execute the trust in their favor, or perhaps to have had the trustee removed and one appointed who would have more faithfully executed the trust. But this bill was never framed with a view to compel the trustee to execute the trust. Its purpose in the first place was to cancel the whole arrangement as a fraud upon the wife of the debtor, and that she might have the property back free from the claims of her husband’s creditors, and that she might have all subsequent incumbrances removed as a cloud upon her title. This it is obvious could not be done, either in favor of the original complainant or in favor of the present complainants. The utmost that either the party entitled to the surplus or the creditors could do, in case the trustee was wasting or mismanaging the trust property, would have been to compel him, by bill, to observe his duties to the cestuis que trust, or have had him removed for unfaithfulness. Had it been shown, by bill, in apt time, the sale to Clark was fraud-_ ulent, or an improvident one, no doubt the court would have set it aside, and ordered a re-sale for the benefit of the creditors, or the parties interested in the surplus. In the original bills Mrs. Martin never asked to have the trust executed by the trustee, that she might have the benefit of any surplus that might remain after the payment of creditors. On the contrary, she always demanded the deed of assignment and all subsequent conveyances of the property be set aside as a fraud upon her rights, and that she might have the property back free from all subsequent incumbrances. If the bill, as now amended, could be treated as a bill to enforce, in favor of the present complainants, the rights creditors may have had in the trust property, it comes too late. Such laches has been suffered as would bar any relief. Conceding the sale by the trustee to Clark was either fraudulent or improvident, no relief could be had against it in favor of the creditors or other persons interested in the trust property, unless a bill for that purpose had been brought without unreasonable delay. That was not done.

There was no error in the decision of the circuit court dismissing the original, amended and supplemental bills for want of equity, and its decree in all respects must be affirmed.

Decree affirmed.


author: Mr. Chief Justice Mulkey

text:
    The City of Sterling v. Thomas Galt et al.

      Filed at Ottawa May 15, 1886.

    1. Special taxation—for local improvement—requisites of ordinance, infixing the amount. Where the cost of a local improvement is to be raised, in whole or in part, by special taxation, the ordinance in relation thereto must either state the sum, or give the data by which the commissioners can fix the amount to be thus raised, and when so fixed or ascertained in conformity with the ordinance, it is conclusive on the property owners.
    2. Same—duty of commissioners—assessment on the frontage, or upon value of property. Where the municipal authorities have fixed in advance the amount to be raised by special taxation, all the commissioners have to do Is to so assess the property specially benefited as to raise the required sum. But their assessment must be made according to the scheme which has been adopted, which may be on the frontage principle, or the value of the property may be made the basis of the assessment or apportionment, either mode being lawful.
    3. Same—rate of assessment, for special taxation, and its conclusiveness. In cases of special taxation the municipal authorities may impose the entire cost of the proposed improvement upon the contiguous property, upon the theory that the benefits will equal the burden cast upon the property; and the presumption in such case of the equality of the benefits with the burdens imposed, can not be rebutted.

      4. Same—apportioning the cost between special taxation and general taxation. The municipal authorities may by ordinance provide that onéhalf of the expenses shall be raised by general and the other by special taxation; or it may provide that contiguous property shall pay an amount equal to the special benefits it will derive from the improvement, to be ascertained by the commissioners, and that the balance shall be raised by general taxation.
    5. Special assessment—as distinguished from special taxation-rights of property owners under each plan. A special assessment differs mainly from special taxation in this, that the assessment can not in any case or under any circumstances exceed the benefits the property will derive from the improvement; and the owner has the right, if dissatisfied, -to have this question passed upon by a jury, whereas in cases of special taxation the jury have nothing to do with the amount which is by ordinance assessed upon contiguous property.
    6. Same—ascertaining the cost, and apportioning the benefits. Where money is sought to be raised by special assessment for a local improvement, the amount necessary for the purpose is ascertained in the first place by a commission appointed by the municipal authorities for that purpose. On application, the county court then appoints three commissioners to make the assessment, who are required not only to apportion the gross amount to be raised on the property benefited, between the lots or parcels of land, as is done in the case of special taxation, but also to determine what this gross sum shall be, by making what they regard an equitable and fair division of the cost of the improvement; and their finding is conclusive, in so far as it fixes the relative amount of the cost of the improvement that is to be respectively borne by the municipality and the owners of the property benefited.
    7. In such case, however, each lot owner will have the right to show, on the hearing of the case, that his lot has been assessed for a greater amount than it is benefited, or for more than its proportionate share of the cost of the improvement.
    8. Same—requisites of ordinance, as to fixing amount. As the commissioners in cases of special assessments for local improvements are required by law to determine the proportion in which the cost of the same shall be borne between the municipality and the owners of contiguous property, an ordinance for the making of such improvements by special assessment need not specify what proportion of the expense thereof shall be raised by special assessment and how much by general taxation.
    9. Same—requisites of ordinance, in describing nature and character of improvement. An ordinance of a city for a local public improvement to-be made wholly or in part by special assessments, is fatally defective if it fails to describe the nature and character of the proposed improvement. It is not sufficient that the ordinance refers to specifications on file in the city clerk’s office as showing the nature and character of the improvement, as that is not made a source of information.

      Appeal from the County Court of Whiteside county; the Hon. William J. McCoy, Judge, presiding.
    Mr. A. A. Wolfersperger, and Mr. J. E. McPherran, for the appellant:
    Section 116 of the act relating to cities and villages, vests them with power to make local improvements by special assessment, or by special taxation, or both, of contiguous property, or general taxation, or otherwise, as they may prescribe by ordinance. Section 117 requires that when a city or village determines to make any local improvement, it shall, in the same ordinance, prescribe whether the same shall be by special assessment or special taxation on contiguous property, or by general taxation, or both. This statute is warranted by the constitution. Falch v. People, 99 Ill. 141.
    The law places the responsibility of prescribing what improvements shall be made, and the mode and manner, and the extent of them, with the common council. Foss v. City of Chicago, 56 Ill. 354.
    The courts can not legally review the action of the council in these respects. Fagan v. City of Chicago, 84 Ill. 228.
    The ordinance is not void for the reason it does not specify the nature, character and description of such improvement, in pursuance of section 134. Page v. City of Chicago, 60 Ill. 551; People v. Sherman, 83 id. 165; Village of Hyde Park v. Borden, 94 id. 26.
    In this ordinance we think the nature and character and locality of the work are sufficiently specified. Its nature is a sewer; the character, an underground sewer. The locality is clearly given. A full description of every part of the work is not required, but it is sufficient to indicate the same generally. The statute does not say how full the description shall be. The reference to the map and specifications makes the character of the work sufficiently plain. State v. City of Plainfield, 38 N. J. 95.

      Messrs. Manahan & Ward, for the appellees Thomas A. Galt, Galt & Tracy, and J. Y. Far well:
    The ordinance does not specify the nature, character, locality or description of the improvement. Foss v. City of Chicago, 56 Ill. 354.
    The principle requiring a description of the proposed improvement to be set out in the ordinance, is also recognized in Railroad Co. v. City of Chicago, 56 Ill. 454, Workman v.

      City of Chicago, 61 id. 463, Andrews v. City of Chicago, 67 id-239, and Railway Co. v. City of Jacksonville, 114 id. 562.
    Statutes authorizing municipal bodies to exercise the right of eminent domain, must be strictly pursued. Weckler v-City of Chicago, 61 Ill. 143.
    The ordinance must designate whether the improvements shall be paid for, either “wholly or in part, ” in one or another of the different modes, and if in part in a particular mode, must specify what part. This power can not be delegated to-the commissioners. City of Chicago v. Wright, 80 Ill: 579;. Watson v. City of Chicago, 115 id. 78; Fagan v. City of Chicago,. 84 id. 231.
    Mr. James D. Andrews, for the appellee E. B. Colcord:
    The jurisdictional facts must be shown—they will not be-presumed. Kneeland v. City of Milwaukee, 18 Wis. 411; Eldred v. Leahy, 31 id. 546.
    The city had no power to pass the ordinance, no expendíture for the purpose of the proposed work being included in. the annual appropriation ordinance of the city. General Incorporation law, art. 7, sec. 7; art. 4, sec. 1; art. 8, secs. 1, 2, 4; art. 9, sec. 16.
    This ordinance being an appropriation ordinance, was not-published a sufficient time before the filing of the petition-Skinner v. City of Chicago, 42 Ill. 52.

      Messrs. W. & W. D. Baege, for the appellee the Chicago and Northwestern Bailway Company:
    The city council is solely vested with power to determine what portion of the total cost shall be paid by the public. Watson v. City of Chicago, 115 Ill. 78.
    The city can not support a claim against the railway company, for paving its road-bed. Railroad Co. v. City of Philadelphia, 88 Pa. St. 424; Railroad Co. v. Morrisiana, 7 Hun, 652.
    The ordinance is insufficient, because it fails to specify the nature, character and description of the improvement. City of Chicago v. Wright, 32 Ill. 192; Statutes of 1881, chap. 24, art. 9, sec. 19; 1 Dillon on Mun. Corp. sec. 610. See, also, Lake v. City of Decatur, 91 Ill. 596; Hyde Park case, 94 id. 26; Gage v. Parker, 103 id. 528.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The city of Sterling, by ordinance, adopted a general sewerage system, and provided for the construction thereof “by general taxation and special assessments on property specially benefited.” The usual steps required by the statute were taken to bring the case to a hearing in the county court. On the day specified in the notice, a large number of property owners affected by the assessment appeared and filed various objections to the proceeding, one or more of which challenge the validity of the ordinance upon which it is founded. The court, after due consideration, sustained the objections ques~. tioning the validity of the ordinance, and entered an order-dismissing the proceeding, to reverse which this appeal is brought.

The entire ordinance, except so much of it as relates to the: location of the sewers, is as follows:

“Sec. 1. That there be constructed in said city a system of underground sewers having a common outlet, to be known as the ‘B street sewer system,’ to be described as follows, to-wit: Commencing at a point in said city where the centre line of B street intersects the bank of Rock riverthence northerly, ” etc. (Here follows a description of the location of the sewers.)
“Sec. 2. That said sewer shall be built, as to size, grade, material, and other details, in accordance with the map, plans, profiles and specifications of the same made by John D. Arey, civil engineer, and now on file in the office of the city clerk of said city.
“Sec. 3. Be it further ordained, that the sewer be constructed by general taxation, and by special assessment on property specially benefited by the construction of the said system, in pursuance with an act in article nine (9) of an act entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872.
“Sec. 4. Be it further ordained, that said sewer system be for public use, and that property owners in the vicinity thereof in said city be permitted to connect private sew'ers with the same, for the proper drainage and sewerage of such property, under the direction of the city council of said city. ”

It is first objected that as the cost of the work is to be defrayed by special assessment as well as by general taxation, the ordinance is invalid, because it does not fix the proportion, or give some data by which to determine how much of the expenses of the improvement is to be raised by either of the methods specified in the ordinance. 'We do not think this objection is well founded, though it must be conceded it finds support in the late case of Watson v. City of Chicago, 115 Ill. 78.

Whatever conflict, real or apparent, is to be found in the cases bearing on this question, is believed to result from a failure to keep in view the difference between cases of special assessment and of special taxation. AVithout going into a general review of the decisions of this court bearing on the question, we will content ourselves with stating, in as few' and plain words as may be, what we understand to be the difference. When the cost of a local improvement is to be raised in whole or in part by special taxation, the ordinance itself must either state the sum or give the data by which the commissioners can fix the amount to be thus raised, and when so fixed or ascertained, in conformity with the ordinance, it is conclusive on the property owners. In such case the municipal authorities, by ordinance, practically fix and determine in advance the amount the property specially benefited is to pay, and the amount when thus fixed is not open to review. This being done, all the commissioners have to do is to so, assess the property benefited as to raise the required sum. This assessment must be made according to the scheme which has been adopted. Sometimes it is done on the frontage principle ; in other cases the value of the property is made the basis of the apportionment or assessment. It is lawful to adopt either of these modes. In cases of special taxation, the municipal authorities, if they think proper, may impose the whole of the burden upon the contiguous property, and although, theoretically, this is permitted upon the hypothesis that the benefits will be equal to the burden cast upon the property, yet, whether it be so or not, can not be inquired into. Or the ordinance might provide, that one-half of the expenses should be raised by general and the other by special taxation. Or, again, it might provide that the contiguous property should pay an amount equal to the special benefits it would derive from the improvement, to be ascertained by the commissioners, and that the balance should be raised by general taxation. The cases here suggested are all governed substantially by the same principle, and it will be perceived the ordinance in each of them practically fixes the amount to be collected from the contiguous property, and as before stated, when so fixed, the propriety, or even justness, of it is not open to review, except, perhaps, in cases where the commissioners have acted corruptly.

It follows from what we have said, that if this were a case of special taxation, the objection taken to the ordinance would be well founded, for the ordinance wholly fails to either fix the amount to be assessed upon the contiguous property, or to furnish any data by which the commissioners could ascertain the amount. But the case in hand is not one of special taxation. It is, as the ordinance shows on its face, one of special assessment, and is governed by radically different principles. A special assessment differs from special taxation mainly in this,- that the assessment can not, in any case or under any circumstances, exceed the benefits the property will derive from the improvement, and the owner of the property assessed has the right, if dissatisfied with the assessment, to have this question passed upon by a jury, and if not content with their finding, to have it reviewed in an appellate tribunal, whereas, in cases of special taxation, the jury have nothing to do with the amount which is by ordinance assessed upon the contiguous property. Where, as in the present case, it is proposed to raise money by special assessment for some local improvement, the amount necessary for the purpose is ascertained, in the first place, by a commission appointed by the municipality for that purpose. Upon proper application, the county court then appoints three commissioners to make the assessment. The duties of these commissioners are defined with great particularity in section 140, chapter 24, of the Revised Statutes. (Starr & Curtiss’ ed.) That section is as follows: “It shall be the duty of such commissioners to examine the locality where the improvement is proposed to be made, and the lots, blocks, tracts and parcels of land that will be specially benefited thereby, and to • estimate what proportion of the total cost of such improvement will be of benefit to the public, and what proportion thereof will be of benefit to the property to be benefited, and apportion the same between the city or village and such property, so that each shall bear its relative equitable proportion; and having found said amounts, to apportion and assess the amount so found to be of benefit to the property, upon the several lots, blocks, tracts and parcels of land, in the proportion in which they will be severally benefited by such improvement: Provided, that no lot, block, tract or parcel of land shall be assessed a greater amount than it will be actually benefited.”

It is manifest from this section that the commissioners not only apportion the gross amount to be raised on the property benefited, between the lots or parcels of land, as is done in the case of special taxation, but they also determine what this gross amount shall be by making what they regard an equitable and fair division of the cost of the improvement. This, as we have already seen, they have no power to do in the case of special taxation. The action of the commissioners is conclusive in so far as it fixes the relative amount of the cost of the improvement that is to be respectively borne by the municipality and the owners of the property benefited; but, as already indicated, each lot owner has the right to show, on the hearing of the cause, that his lot has been assessed for a greater amount than it is benefited, or for more than its proportionate share of the cost of the improvement. Since in the case of special assessments the commissioners themselves determine the proportion in which the cost of the improvement shall be borne between the municipality and the contiguous property owners, it was unnecessary for the city council to determine that matter by ordinance.

It follows from what we have said, the objection to the ordinance on the ground stated is not well founded. The view here taken is fully sustained by the following authorities: Enos v. City of Springfield, 113 Ill. 65; City of Galesburg v. Searles et al. 114 id. 217; White v. The People ex rel. 94 id. 604; Craw v. Village of Tolono, 96 id. 256.

The ordinance is also assailed on the ground that it does not sufficiently describe the mature and character of the improvement proposed to be made. This objection we regard as well taken. Paragraph 135, chapter 24, of Starr & Curtiss’ Statutes, provides : “Whenever such local improvements "are to be made wholly or in part by special assessment, the said council in cities, or board of trustees in villages, shall pass an ordinance to that effect, specifying therein the nature, character, locality and description of such improvement. ” It is obvious, from a bare inspection of the ordinance, that outside of the description of the location of the sewers there is no attempt, in framing the ordinance, to comply with the requirements of this section of the statute. As has frequently been held, this provision of the statute is mandatory. Foss v. City of Chicago, 56 Ill. 354; Andrews v. City of Chicago, 57 id. 239; Lake Shore and Michigan Southern Railroad Co. v. City of Chicago, 56 id. 454; Lake v. City of Decatur, 91 id. 600; Jacksonville Ry. Co. v. City of Jacksonville, 114 id. 562. The fa,ct that specifications are referred to as being in the city clerk’s office, can not alter the case. That is not a source of information which the law recognizes in these matters. The statute, whether for wise or unwise purposes, has required this' information to be inserted in the ordinance itself. That has not been done or attempted to be done.

The ordinance being fatally-defective in the respect stated, it follows the order dismissing the proceeding was proper, and it will therefore be affirmed.

Order affirmed.