author: Mr. Justice Walker

text:
    Charles Aulger v. Henry Clay et al.

      Filed at Springfield March 26, 1884.

    1. Tender—must be kept good, in order to stop interest, and avoid costs. A tender of the amount due from the purchaser of land to his vendor, who is not in a position to make a clear title, according to his bond, by reason of an incumbrance placed by him on the premises sold, to be availing to stop the accruing of interest after such tender, must be kept good. To have that effect the tender must be kept in money, at all times ready to be paid, and subject to the order of the creditor at any time when he shall comply with his contract so as to be authorized to receive it.

      2. The money tendered must at all times be ’kept in readiness for the creditor, and not be used by the debtor, and. when pleaded at law it must be brought into court for the creditor. It may be the precise pieces of money need not be kept separate, but the amount must be kept at all times subject to be received by the creditor when he calls for it. It is in this way only that the debtor can escape the payment of interest and costs.
    3. Error—by whom to be availed of—on decree for specific performance not properly apportioning among different claimants. On bill by the widow and heirs of a deceased purchaser of land, against the vendor, to enforce the specific performance of a contract for the sale and conveyance by the vendor to the vendee, the court decreed that the title in fee should be conveyed to the widow and the heirs. While this was held error, the widow being entitled to no more than dower and a homestead interest in the land, it was further held, that it was one that the vendor could not take advantage of, he having no interest or concern in the adjustment of the respective rights of the widow and the heirs.
    Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    Messrs. Puterbaugh & Puterbaugh, for the appellant:
    A tender, to be availing, must be unconditional. 7 Wait’s Actions and Defences, 588.
    To avoid the payment of interest after a tender, the money must be kept ready at all times for the creditor. Thayer v. Meeker, 86 Ill. 474; Butterfield v. Kinzie, 1 Scam. 445; Walcott v. Van Zantvoord, 17 Johns. 278; Cadwell v. Cassidy, 8 Cow. 271; Wood v. Merchants’ Savings, Loan and Trust Co. 41 Ill. 267; Crain et al. v. McGoon, 86 id. 431; Stow v. Russell, 36 id. 19; Doyle v. Teas, 4 Scam. 202; DeWolf v. Long, 2 Gilm. 679; Wright v. McKeely, 11 Ill. 241.
    A tender is stricti juris. The money múst be in sight, capable of immediate delivery. The tender must be absolute. 2 Greenleaf on Evidence, secs. 601, 602, 605; 3 Starkie on Evidence, 1067; Wyncoop v. Cowing, 21 Ill. 570; Buchanan v. Harney, 12 id. 336.

      Mr. W. L. Prettyman, for the appellees:
    The tender was full and complete, both at law and in equity. 2 Greenleaf on Evidence, sees. 601, 602, 607; Webster et al. v. French et al. 11 Ill. 254.
    The tender being made, full and complete, on the day the debt became due, and at the place of payment, interest would cease on that day, and would be barred thereafter, unless after the tender the creditor made a legal demand upon the debtor for the money, and the debtor should refuse to pay the debt due. Such was the common law, and is the law to this day. The money due need not be kept intact, but if demand is actually made, must be paid. 2 Greenleaf on Evidence, 608; 7 Wait’s Actions and Defences, p. 594, see. 15; Crain et al. v. McGoon, 86 Ill. 431; Town v. Trow, 24 Pick. 169; Carr v. Miner, 92 Ill. 605; Allen v. Atkinson, 21 Mich. 357; Ventres v. Cobb et al. 105 Ill. 35; Mathison et al. v. Wilson, 87 id. 51; 8 Fisher’s Digest, 12,933.
    Tender is kept good by offering to j)&y money in bill. Board of Supervisors v. Heneberry, 41 Ill. 180.
    Offer to pay money is the same as payment. Blunt v. Tomlin et al. 27 Ill. 100.
   Mr. Justice Walker

delivered the opinion of the Court:

This case presents the single question whether there was such a tender as stopped the interest on the note given for a portion of the purchase money for the land. The facts are, that on the 14th day of August, 1868, one Benjamin Whisler, owning the land in controversy, with others, borrowed from the ¿Etna Life Insurance Company $2500, for which he gave his note and a deed of trust on one hundred and ninety-three acres of the land. The note was payable January 1, 1873, with ten per cent interest, payable semi-annually. Bourland was the trustee to whom the deed of trust was made. On the 26th day of December, 1872, Whisler sold and conveyed this property to N. Watson, subject to the incumbrance of the deed of trust. He, on the 1st day of July, 1873, in like manner sold and conveyed the premises to appellant, and he, on the 11th of January, 1877, sold the forty-acre tract in controversy to one John Clay, now deceased, for $1000. Clay paid $500 on the purchase, and gave his note for a like sum, payable the 1st of January, 1878, bearing interest at the rate of ten per cent per annum, from date. Aulger gave him a bond for a deed, on the payment of the note, interest and accruing taxes. Aulger bound himself to make to Clay “a good and sufficient warranty deed of conveyance for said land unto the said Clay, or his heirs or assigns. ” Time was declared of the essence of the contract. On the 31st of December, 1877, Aulger and wife executed a warranty deed for the land in controversy, and acknowledged it before a proper officer, conveying the land to Clay. The insurance company declined to release this forty acres unless Aulger would pay to it the $1000 for which it had been sold to Clay, as a payment on Whisler’s note. Aulger, for the purpose, borrowed $500, and relied on Clay for payment of the other $500, to pay the insurance company and to procure its release. On the evening before Clay’s note matured, it was agreed that he and Aulger should the next day go to Peoria, make the payment, and procure the release and close the matter. On the 1st of January, the day Clay’s note fell due, he, with his sons and others, went to Aulger’s, to tender $550, and to demand the deed. They met Aulger on the road. It is claimed that Clay then tendered the money. Witnesses testify that Aulger promised to return to his house, where Clay went, and remained about two hours, but Aulger failing to return, the money was counted, and he left. Aulger did not return home until in the evening. On his return he sent the deed, by one Wilson, to be tendered to Clay. Wilson went to Clay’s house, and tendered the deed and demanded the money. Clay refused to receive it, and pay the money, until Aulger should procure a release from the insurance company. He told Wilson that when Aulger fixed the title and made him a proper conveyance, the money was ready for him. In the following February or March, Clay went to Aulger’s, and stopping at the fence, called Aulger out, and told him he had the money in his pocket to pay him when Aulger should make the deed. Aulger went into his house to get the deed. Clay started to leave, but Aulger called to him to stop, and when he did so, Aulger came up to him and tendered the deed, in the presence of one Stuhn. Clay said he did not have the money with him, but it was at his house. In the latter part of March, 1878, Clay deposited $550 with E. L. Price, telling him he had tendered the money to Aulger; but it was all withdrawn by Clay during the year, and used by him. Nor does it appear he notified Aulger that he had made the deposit of the money claimed to have been tendered. Clay died the 30th of April, 1879, leaving a widow and children, who are the defendants in this case. When Clay purchased he took possession, and he and his family have remained in possession ever since.

The bill, as first filed, was to enjoin the insurance company from selling this forty, under the trust deed, until it had exhausted its remedy against the other lands embraced in the trust deed. The other lands were sold, and satisfied the debt the trust deed was given to secure, leaving the land in controversy free from the lien. Clay, or his family after his death, failed to pay the taxes for two years. The bill was amended, and a specific performance of the contract was sought, and on these facts the court below, on a hearing, granted the relief asked, and decreed that Aulger convey the land in fee to the widow and heirs, requiring them to pay but the $500, with interest until the maturity of the note, and the amount Aulger paid to redeem the land from sale for taxes, with interest. Aulger appeals, and urges a reversal.

It is claimed that Clay made a tender when the note matured, and was thereby released from paying any interest on the balance of the purchase money after the tender was made. We will not stop to discuss the question whether there was a sufficient tender, as, if there was, it was not kept good, so as to stop the accruing of interest. To have that effect the tender must be kept in money, at all times ready to be paid, and subject to the order of the creditor at any time when he shall comply with his contract, so as to be authorized to receive it. This is the general doctrine, and is settled in this court. (Thayer v. Meeker, 86 Ill. 470; Crain v. McGoon, id. 431; Stow v. Russell, 36 id. 18; Knox v. Light, 12 id. 86.) These cases distinctly announce the rule that the money tendered must at all times be kept in readiness for the creditor, and not used by the debtor, and when pleaded at law, it must be brought into court for the creditor. It is in this way, only, that the debtor can escape the payment of interest and costs. We have only to turn to any book of precedents to find that a plea of tender must aver a readiness, at all times after it is made, to pay the money, and he must bring it into court. If he uses the money, of course he is not at all times ready to pay it.

In the case of Gyles v. Hall, 2 P. Wms. 378, where a tender was relied on to stop interest, it was said by the Lord Chancellor: “But in this case it ought to appear that the mortgagor, from that time, always kept the money ready, whereas, the contrary thereof being proved, the mortgagor was not ready to pay it, therefore the interest must run on. ” This is the rule both at law and in equity, and it is supported by the principles of justice.

Appellees refer to several cases as modifying this rule. The case of Mathison v. Wilson, 87 Ill. 51, holds that the offer to pay the purchase money by the vendee is sufficient to prevent a forfeiture of his contract of purchase, and to entitle him to compel a specific performance. This was held to confer the right to enforce the contract. To do so, complainant was compelled to show he was ready, willing, and offered to perform, or show an equitable excuse. In that case no question of the stopping of interest by a tender was involved. The case of Carr v. Miner, 92 Ill. 604, simply holds if a tender was made, the refusal of the debtor after-wards to pay when the money was demanded, proved the tender was not kept good. The case of Ventres v. Cobb, 105 Ill. 33, only holds that complainant was ready and offered to redeem before the property was put up for sale. The question involved in this case was not there presented, but it was held to preserve the right of the person making the tender to have the sale set aside, and to redeem from the trust deed. The other cases referred to only hold that the benefit of a contract is not lost when the purchaser offers to perform his part of the agreement, nor on a bill for specific performance is it necessary that a party making a tender should keep it good, and bring the money into court, before he can have relief in equity; but to avoid the payment of interest in such a case, the same strict rules of tender would be applied, on the same principles and for the same reasons as at law.

Where a legal and proper tender of personal property is made, the title vests in the person to whom it is made, and he becomes the owner. Although the identical money tendered does not vest in the creditor, it so far becomes his, if the tender is kept good and is brought into court, that he can not recover any interest, costs or damages if the tender is for the proper amount, and all the requirements of the law were observed in making it,—hence the debtor, by using the money, virtually withdraws his tender, and makes it his own. It may be that the precise pieces of money need not be kept separate, but the amount must be kept at all times subject to be received by the creditor when he calls for it. These rules were not observed in this case, and the tender was not sufficient to arrest the accruing of interest. The court below therefore erred in, not allowing appellant interest on this deferred payment. For that error the decree of the court below must be reversed.

It is urged that the court below erred in decreeing the title in fee should be conveyed to the widow and heirs. This was no doubt error, as the widow could have no more than dower and a homestead interest in the land. But of this error appellant can not be heard to complain. He should convey the land, and when he does so under the decree of the court, he has no concern or interest in the question as to who gets the title. This error will be corrected on another trial, unless further evidence should be introduced requiring the same decree on that question.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Maggie R. Flagg v. Samuel Walker.

      Filed at Springfield March 26, 1884.

    1. Appeal—as to amount in controversy—in forcible detainer. A writ of error lies to the Appellate Court to "review its judgment in an action of forcible detainer, when the record shows that the rental value of the premises for the term in controversy exceeds $1000.
    2. Removal op causes—from State to Federal court—time of filing petition therefor. A party to a suit in the State court desiring to remove the same to the Circuit Court of the United States, under section 3 of the act of Congress of 1875, must present his petition for that purpose before or at the term at which the cause can be first tried, and before the trial thereof. It has been held this means the term at which the issues are first made up, the party applying not having been guilty of negligence.
    3. A complaint in an action of forcible detainer was filed during the April term, and on the fifth day of the term, and on the next day the appearance of the defendant was entered by counsel and the service of process waived. Hothing more was done at that term. At the next term the defendant, before the trial, filed a petition to transfer the cause to the Federal court, and gave the necessary bond, but the court refused to transfer the cause: Held, that the defendant was not chargeable with negligence in not pleading to the complaint at the April term, there being no agreement to try the cause at that term, and that the court erred in refusing to grant the prayer of the petition.
    4. Practice—entry of appearance—in action commenced during the term. Where an action is commenced during the term of court in which it is brought, the defendant, to avoid the expense of issuing and serving process for the next succeeding term, may enter his appearance without subjecting himself to a compulsory trial at the term such entry is made.
    5. Same—standing rule to plead by a certain day—as to suit brought after that day. A standing rule of a circuit court requiring parties to common law actions to plead by “Friday of the first week, ” can ha,ve no application to an action of forcible detainer in which the defendant is not in court until after that day.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    This was an action of forcible detainer, brought in the circuit court of McLean county, by Samuel Walker, against Maggie R. Flagg, to recover possession of the premises described in the complaint as the “Empire Machine Works.” At the September term, 1882, a trial of the cause, on a plea of “not guilty, ” was had before the court, without the intervention of a jury, which resulted in finding the issues for plaintiff, and judgment that he recover possession of the premises. That judgment was afterwards affirmed in the Appellate Court for the Third District, and defendant brings the case to this court on error.
    Mr. T. F. Tipton, and Mr. H. V. Tipton, for the plaintiff in error.
    Messrs. Stevenson & Ewing, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

A motion was made to dismiss the writ of error in this case for want of jurisdiction. The grounds of the motion are, that the sum of $1000 is not involved in the litigation. There is no pretense there is any other question involved that would give this court jurisdiction. The rental value of the premises for the term in controversy seems, from the record, to be more than $1000, and, on the principle of the recent case of Jordan v. Davis, 108 Ill. 336, a majority of the court are of opinion the writ of error will lie. The motion to dismiss must therefore be overruled.

At the September term, 1882, defendant filed her petition and bond, conforming to the act of Congress in that respect, asking to have the caúse transferred to the circuit court of the United States for the Southern District of Illinois, she being a citizen of the State of Illinois, and plaintiff being a citizen of the State of Massachusetts. No objection is taken to the form of the petition, nor to the sufficiency of the bond. 'The only objection insisted upon is, the application was not made in apt time,—that is, it should have been made at a former term of the court. The practice in such cases would seem to be so definitely provided for in the act of Congress on this subject as to require no construction. Section 3, of the act of 1875, declares a party seeking a removal of a cause from the State to a Federal court must present his petition in the suit in the State court before or at the term at which such cause could be first tried, and before the trial thereof. It has been held the term at which a cause could be first heard, within the meaning of this act, is the term at which the issues are first made up, the party applying for the removal not having been guilty of negligence. Scott v. C. and S. R. R. Co. 6 Biss. 529; New York Warehouse and Security Co. v. Loomis, 122 Mass. 431.

The facts of the case being considered bring it clearly within the provision of the act 'of Congress in relation to the removal of causes from the State to the Federal court. It appears the complaint was filed in term time of the April term of court, 1882. That was the commencement of the suit. The record shows the regular April term, 1882, of the McLean county circuit court, commenced on the 4th Monday of April, that being the 24th day of the month, which is the time fixed by public law for it to convene. It is seen the complaint was filed on the 28th day of the month, and on the next day, the 29th day of the month, being the sixth day of the April term, 1882, the appearance of defendant was entered by counsel, and the service of process waived. That is all the record discloses was done at that term of court. What private agreement counsel may have had can not be considered, as it does not appear in the record. It is certain the cause was not brought to issue at the April term, 1882. The statute seems to require only a general denial, as, “not guilty,” to put the case at issue. That was not pleaded at that term of court, and it can not be said the case was at issue for trial. But was defendant guilty of laches in not pleading at that term of court ? Under the facts as they appear of récord it would seem she was not. It was not agreed the cause should be tried at that term of court. Counsel agreed, in writing, to enter the appearance of defendant, and waive the issuing and service of summons; that the entry of appearance should have the same effect as if summons had been issued and served more than ten days prior to that term of court, and the case to be docketed, and take its place at the foot of the common law appearance docket for that term. All the record shows that was done is, the appearance of defendant was entered by counsel, and the issuing and service of process waived. Nothing more appears to have been done. But if the entry of the appearance of defendant had contained everything embraced in the writing signed by counsel, it will be perceived it contains no agreement to try the cause, or even to make up the issues at that term of court. The case having been commenced in term time, defendant could not have been compelled to submit to a trial of the cause at that term, although she was willing to and did enter her appearance. That might have been done to avoid the expense of issuing and serving process for the next succeeding term of court,— a thing she might do without subjecting herself to a compulsory trial at that term of court.

It is not perceived how the standing rule of court that requires parties to common law actions to plead by “Friday of the first week, ” can have any application to this case. Defendant was not in court until Saturday of the first week of the term, and she was certainly in no default in not observing a rule that had expired before she was in court, bio rule was laid upon her at that term to plead to the action against her, and no laches can be imputed to her for not pleading, when she was not required to do so by any general or special rule of court. It is plain the September term, 1882, was the first term of court at which the issues in the cause were made up, and it was the first term of court at which the cause, in the language of the act of Congress, “could be first tried, ” and as the application to remove the caúselo the Federal court was made at that term of court, “and before the trial,” it was in apt time, and the circuit court should have allowed the motion.

The judgment of the Appellate Court will be reversed, and the cause remanded for further proceedings conforming to this opinion.

Judgment reversed.

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


author: Mr. Justice Mulkey

text:
    Manzo Moore et al. v. The People of the State of Illinois.

      Filed at Springfield March 26, 1884.

      1. Intoxicating liquors—permit to druggists—what so regarded. Where a village ordinance prohibits the sale or giving away of intoxicating liquors within the limits of the village, concluding with a proviso that druggists may sell such liquors for purely medicinal, chemical and sacramental purposes, and fails to provide for the issue of any written permit, this will, within the meaning of the statute, be of itself a permit to all druggists in the village to sell such liquors for the purposes named.
    2. Same—bond not required—under such permit. A druggist having a permit to sell intoxicating liquors for medicinal, chemical and. sacramental purposes, from city or village authorities, is not required to give the bond of $3000 required by section 5 of the Dram-shop act, of persons taking out licenses to retail such liquors, and he may sell such liquors for the purposes above stated without giving such bond.
    . 3. Same—former decision. The questions involved in this case did not arise in Wright v. The People, 101 Ill. 136, and any general expressions to be found in the reasoning in that case, which may seem not to be in entire harmony with the conclusion here reached, must be limited in their effect by the case then before the court.
    Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. W., R. Lawrence, for the plaintiff in error.
    Mr. C. M. Swallow, State’s Attorney, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Charles Lynch and Manzo Moore, the plaintiffs in error, were indicted, in the Vermilion county circuit court, at its October term, 1882, for unlawfully selling intoxicating liquors without a license. The cause, by consent of parties, was submitted to the court without a jury, upon an agreed state of facts. The court, on consideration of the case as submitted, found the defendants guilty on fifteen counts of the indictment, and fined them, severally, $20 on each count. This conviction having been affirmed by the Appellate Court for the Third District, the defendants bring the case here for review.

It appears from the stipulation on which the case was tried, that the defendants, for eighteen months prior to the finding of the indictment, were doing business together, as druggists, in the village of Eidge Farm, in said county, during which time the sales of intoxicating liquors complained of were made, in due course of business. There is no controversy as to the fact of the sales, but they are sought to be justified on the alleged ground that in making them they were acting under a druggist’s permit, granted to them by the village authorities. To this it is replied by the State, first, that within the meaning of the law no such druggist’s permit was ever granted to them by the village authorities; and second, conceding such a permit was granted, it was inoperative and void, because of the defendants’ failure to give bond, as required by the fifth section of the Dram-shop act.

The first section of the ordinance relied on by the defendants as showing a permit, after prohibiting the sale and giving away of intoxicating liquors altogether, within the limits of the village, and providing a penalty for its violation, concludes with the following proviso, viz: “Provided, druggists may sell such liquors for purely medicinal, chemical and sacramental purposes. ” The second section then makes it the duty of druggists to report, under oath, all sales, to the village board of trustees, and prescribes a penalty for any violation of the provisions of that section. No written permit was ever issued by the board to the defendants, nor, indeed, does the ordinance contemplate such a permit, though the stipulation shows the defendants made regular reports to the village authorities of all sales made by them, as required by the ordinance.

It must be conceded that the ordinance in question, by its express terms, authorizes all druggists within the corporate limits of the village to sell intoxicating liquors for the purposes above specified, on the conditions named in the ordinance, and this we think was, within the meaning of the statute, a “permit” on the part of the village authorities to the defendants to sell for those purposes. It remains to inquire whether sales of intoxicating liquors under such a permit, when bona fide for the purposes specified in the above ordinance, as appears to have been the case here, are subject to the provisions of the fifth section of the Dram-shop act. That section is as follows: “No person shall be licensed to keep a dram-shop, or to sell intoxicating liquors, by any county board, or the authorities of any city, town or village, unless he shall first give bond in the penal sum of $3000, payable to the People of the State of Illinois, with at least two good and sufficient sureties, freeholders of the county in which the license is to be granted, to be approved by the officer who may be authorized to issue the license, conditioned that he will pay to all persons all damages that they may sustain, either in person or property, or means of support, by reason of the person so obtaining a license selling or giving away intoxicating liquors,” etc. Rev. Stat. 1874, p. 439, see. 5.

If this was the only provision of the statute bearing on the question, it might well be concluded the municipal authorities of counties, cities, towns and villages have no power to authorize the retailing of intoxicating liquors for any purpose, unless the party acting under their authority has complied with the provisions of this section by entering into bond, with approved security, as therein directed. But this is not the only provision bearing on the question. The 46th subsection of section 62, of the Revised Statutes of 1874, after declaring incorporated towns, cities and villages shall have power “to license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor,” then adds, by way of proviso, “that the city council in cities, or president and board of trustees in villages, may grant permits to druggists for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance. ” This language is supplemented with the following additional proviso: “Provided, further, that in granting licenses such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses.” Now, if the legislature had added the words, “or permits,” after the word “licenses, ” in the concluding part of this last proviso, there 'would be no room to doubt it was the intention of the act that the keepers of dram-shops, and druggists, should be placed upon the same footing with respect to the observance of the provisions of the general law relating to the sale of intoxicating liquors, and hence the defendants in this case would have been bound to give bond, as required by the fifth section of the Dram-shop act. But such is not the case, and the question is, shall we, by mere judicial construction, add these words, in order to sustain the conviction, which the legislature has seen proper to omit. It is not pretended we have power to do this, but the contention is, that the word “licenses, ” in this last proviso, is used in its popular or extended sense, and that it therefore includes the word “permits, ” as used in the preceding proviso. We do not think a fair construction of this sub-section, taking it altogether, sustains the view suggested. If the legislature had intended druggists should be placed upon the same footing with other persons engaged in the retail of intoxicating liquors, there would not have been the slightest occasion, as seems to us, to have made any special reference to druggists at all. To adopt the construction contended for, would give no effect or operation whatever to the first proviso in said sub-section. Again, it will not do to hold that the word “license, ” as used in the first part of the section, is not synonymous with the word “permits, ” in the first proviso, and then, for the purpose of bringing the case within the provisions of the Dram-shop act, enlarge its meaning so as to include druggists’ permits. On the contrary, we are of opinion that the word “license,” or “licenses,” is used in the same sense wherever it occurs in this section, and that it is used in a different sense,- and for a different purpose, from the word “permits,” and it therefore follows druggists having “permits” do not fall within the provisions of the fifth section of the Dram-shop act, and consequently the conviction was improper.

Defendants in error rely upon Wright v. The People, 101 Ill. 126, as sustaining the contrary view. It is sufficient to say the question involved in this case did not arise in that, and consequently could not have been decided by it. It may be admitted, general expressions in the reasoning of that case are to be found which are not in entire harmony with the conclusion here reached, but the expressions made in that case in arguendo, like all other similar expressions, must be limited by the facts of the case then before the court, and it is hardly necessary to observe it is not within the power of this or any other court to make a binding adjudication upon a question which is not presented by the facts of the case then in hand.

The judgment of the Appellate Court is.reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court, and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed.

• Mr. Justice Walker : ( I dissent to the decision in this case.


author: Mr. Justice Soholfield

text:
    M. M. Blake v. The People, for use of A. Caldwell.

      Filed at Springfield March 26, 1884.

    1. Statute—as embracing more than one subject—liberal construction. The prohibition in section 13, article 4, of the constitution of 1870, that no act thereafter passed shall embrace more than one subject, is the same as that in the constitution of 1848 in respect to private or local legislation, and it has uniformly been construed liberally in favor of the validity of enactments. The fact that many things of a diverse nature are authorized or required to be done, is unimportant, provided the doing of- them may fairly be regarded as in furtherance of the-general subject of the enactment.
    2. Curative legislation—how far allowable. If an act omitted to be done, creating a defect in a proceeding, be such that the legislature might have dispensed with its performance by a prior statute, then a subsequent statute dispensing with it retrospectively must be held valid, especially when the proceeding is not complete before the defect is so cured.
    3. Drainage law—validity of act of 1879, as embracing but one subject. The act entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29, 1879, is not liable to the constitutional objection that it embraces more than one subject. The subject of the enactment was the protection of land against surplus water,— or, in other words, directing the flow of water for the protection of lands; and this is equally accomplished by drains and ditches, or by levees. The fact that the title to the act unnecessarily specifies the motives or purposes in aid of which it is enacted, and to some extent the means by which the flow of water is to he directed, is not objectionable. At most it is but unnecessary particularity.
    4. Same—of the amendatory act of 1883, in the same regard. The act of May 24, 1883, being an act to amend the Drainage law of 1879, is not subject to the objection that it contains more than one subject. Its object is the same as that of the act of 1879,—the protection of lands against surplus water,—and but supplements omitted détails essential to the efficacy of that act.
    5. Same—power under constitution—as to the mode of creating drainage districts—and the agencies to be employed and conditions prescribed in respect thereto. The words in the amendment to section 31, article 4, of the constitution, “provide for the organization of drainage districts,” etc., are to be referred to the General Assembly, and not to the owners of lands,— in other words, the General Assembly may “provide for the organization of drainage districts, and vest the corporate authorities thereof with power, ” etc.; and there is not any limitation or restriction upon the legislature as to the agencies to be used in the creation of such corporations, and it may make the finding of certain facts by the county court authorize the formation of such a district and corporation.
    6. A statute requiring a petition for the formation of a drainage district to be presented to the county court, on notice, and the finding of certain prerequisite facts necessary to its creation as a corporation, is not invalid. It is the statute itself which brings into being such corporation, and not the court. In such case the statute becomes operative when the prescribed facts are found, and the finding is entered of record.
    7. Same—of facts preliminary to organization—finding conclusive in collateral proceeding—remedy to question authority of commissioners. Where the county court has found, by its judgment entered of record, that the requisite petitions had been presented to it for the formation of a drainage district, upon proper notice, and shows the appointment of commissioners, under section 5 of the Drainage act, after the finding of the necessary facts, and the confirmation of the report of the commissioners after due notice of the time of hearing the same, such commissioners, even though proper notices were not given, will become a corporation de facto, and its existence can not be questioned collaterally, as in an attempt to defeat an application for judgment upon unpaid special assessments made by the corporate authorities; and their authority to act can only be questioned by quo warranto.

    8. Same—special assessments—of the notice of time and place to hear objections. Under section 19 of the Drainage act, the jury, after the completion of their assessment, shall fix a time and place when and where they will meet for the correction of the assessment, and they or the commissioners are required to give at least ten days’ notice of such time, and place, and the object of such meeting, by posting and publishing notices, as required in section 3 of the same act, prior to the time so fixed; and section 3 requires the posting of notices in at least five of the most public places in the district, and the publishing a copy thereof in some newspaper or newspapers published in each county from which any part of the district has been formed. The time of the notice to be given being fixed by section 19, must control.
    9. Same—waiver of objections to'assessment, if not made before confirmation. All objections which might have been made at the time of the confirmation of the assessment roll, and which were not then urged, are waived, and can not be urged for the first time on application for an order for the sale of lands for a delinquent assessment. In this respect there is no difference between cases of special assessments for the opening, repairing, etc., of streets, and assessments under the drainage acts.

      10. Same—power as to works constructed under prior invalid act. The fact that the act of April 24,1871, was held unconstitutional, in part, as to the power to construct levees, does not render a levee constructed by them under that act, one not constructed under any law of this State. The objection, if valid, should have been made before the confirmation of the assessment roll. But because the act of 1871 was repugnant in some of its provisions to the constitution, before its amendment in 1878, as in favor of particular rights, it does not follow it was no law for any purpose. That act was valid as to all persons except those not assenting to the formation of the district, and those against whose property it was proposed to assess the costs.
    11. The amendment to section 31, article 4, of the constitution, adopted in 1878, giving power to provide for the organization of drainage districts, and to vest the corporate authorities thereof with power, not only to construct levees, but also to keep in repair all levees before constructed under the laws of the State, by special assessments, etc., refers to and embraces levees constructed under the act of 1871, as none' others could have been intended.
    12. Same—transfer of assessment on tax-books—where to be placed. It is no objection to the collection of an assessment under the Drainage act of 1879, made for keeping a levee in repair, that the county collector, on the return of the list to him, shall transfer the amount of such assessment to a separate column in his tax-books. The statute does not so require, but it is simply that it shall be transferred to a proper column opposite the land upon which it has been made.
    13. Taxes—what is included in the term. The word “tax,” or “taxes,” in the Revenue law, is defined by that law to mean any tax, special assessment, or costs, interest or penalty.
    Appeal from the County Court of Pike county; the Hon. Edward Doocey, Judge, presiding.
    Mr. Wm. A. Grimshaw, and Messrs. Orr & Crawford, for the appellant:
    As to when retrospective legislation is operative and binding, counsel cited Town of Fox v. Town of Kendall, 97 Ill. 72; 7 Wait’s Actions and Defences, 566, 569; Gillinwater v. Mississippi R. R. Co. 13 id. 1; Leak v. Richman County, 64 N. C. 132; The People ex rel. v. Peacock, 98 Ill. 172; United States Mortgage Co. v. Gross et al. 93 id. 484; The People ex rel. v. McCrea, 95 id. 109.

      Ex post facto laws are not favored. Garrett v. Higgins, 1 Scam. 335; Bruce v. Schuyler, 4 Gilm. 221; Parmalee v. Lawrence, 44 Ill. 405; Hunter v. Hatch, 45 id. 175; Billings v. Riggs, 56 id. 483; Hosmer v. The People, 96 id. 58.
    The Drainage act of 1879 embraces more than one subject. Drains and ditches constitute a different subject from that of a levee. Updike v. Wright, 81 Ill. 49; Const. of 1870, art. 4, see. 13.
    Messrs. Matthews, Wike & Higbee, for the appellees, among numerous other questions discussed the following:
    The Drainage act is valid, under the constitutional amendment of 1878 to section 31, article 4. Moore v. People, 106 Ill. 382. Curative legislation is allowable. Mitchell v. Deeds, 49 id. 416; Cooley’s Const. Lim. sec. 374; Cowgill v. Long, 15 Ill. 202. Retrospective laws. Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 id. 88. Confirmation of assessment as res judicata. Andrews v. People ex rel. 84 Ill. 28; People ex rel. v. Brislin, 80 id. 423; Lehmer v. People ex rel. id. 601.
    “Tax” and “assessment,” as used in the statute, are synonymous. Webster v. People, 98 Ill. 343; People v. Springer, 106 id. 544; Revenue act, sec. 292.
    Messrs. Irwin & Dobbins, also, for the appellees:
    That the confirmation of the assessment is conclusive, see Schertz v. The People, 105 Ill. 32; The People v. Brislin, 80 id. 423.
    Requiring the county court to find certain facts preliminary to the formation of a drainage district, does not render the act unconstitutional. The People v. Morgan, 90 Ill. 558.
    The notice given under section 3 of the act was sufficient. Madden v. Cooper, 47 Ill. 359; Garrett v. Moss, 20 id. 553; Bicketts v. Village of Hyde Park, 85 id. 110; Pearson v. Bradley, 48 id. 250; Gilmore v. Sapp, 100 id. 301.

      In all cases where service is to be made by publication, if the record recites that due notice has been given, the finding is conclusive. Donlin v. Hettinger, 57 Ill. 348; Osgood v. Blackmore, 59 id. 261; Bennett v. Wolf, 70 id. 76.
   Mr. Justice Soholfield

delivered the opinion of the Court:

This appeal brings before us for review the record of a judgment of the county court of Pike county, in favor of the collector of that county, against a certain tract of land- of the appellant, for the amount of a special assessment of the “Sny Island Levee Drainage District.” That district is claimed to be incorporated under and by virtue of the provisions of an act of the General Assembly, entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts, ” approved and in force May 29, 1879. The act provides for the formation of drainage districts, and invests the districts, when formed, with power to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, and also to maintain and keep in repair any such drain, ditch or levee heretofore constructed under any of the laws of this State. Appellant contends that the act is unconstitutional and void, and that therefore no valid corporation can be created under it,, and this must, of course, be passed upon before the consideration of other questions arising in the case, which presuppose the validity of the act. The contention is, that the act is in contravention of the constitution in two respects: First, in that it embraces more than one subject, and is therefore within the prohibition of section 13, article 4; and second, in that it authorizes the county court, and not the owners of lands, to create the corporation, and is not, therefore, within the letter or the spirit of the amendment to section 31, article 4, adopted by the people at the November election in 1878, apart from which amendment the General Assembly possessed no power to authorize the creation of such corporation.

The same prohibition as that contained in section 13, article 4, but limited to private or local legislation, was in the constitution of 1848, and it was uniformly construed liberally in favor of the validity of enactments. The fact that many things of a diverse nature are authorized or required to be done, is unimportant, provided the doing of them may fairly be regarded as in furtherance of the general subject of the enactment. Belleville R. R. Co. v. Gregory, 15 Ill. 20; Firemen’s Benevolent Association v. Lounsbury, 21 id. 511; Board of Supervisors v. The People, 25 id. 181; O’Leary v. County of Cook, 28 id. 534; Neifing v. Pontiac, 56 id. 172; Prescott v. Chicago, 60 id. 121; The People v. Brislin, 80 id. 423; Johnson v. The People, 83 id. 431; The People v. Loewenthal, 93 id. 191; Town of Abington v. Cabeen, 106 id. 200; Potioin v. Johnson, 108 id. 70; City of Virden v. Allan, 107 id. 505.

The subject of this enactment was the protection of land against surplus water,—or, in other words, directing the flow of water for the protection of lands; and this is equally accomplished by drains and ditches, or by levees, the levee directing the flow of the water that would otherwise come upon the land, away from it, and the drains and ditches directing the flow of water off the land. The motives in directing the flow of the water, of course, do not change the definition of the act of so doing, and must, therefore, be unimportant. We are clearly of opinion that the objection is untenable. The title to the act unnecessarily specifies the motives or purposes in aid of which it is enacted, and, to some extent, the means by which the flow of water is^ to be directed, but this is not objectionable. It discloses, though with more words than are absolutely necessary, very clearly, that the subject of the act is that we have indicated. At most, it is but unnecessary particularity. Updike v. Wright, 81 Ill. 49, has no bearing on the present question. What was there said in regard to levees and drains, etc., was in reference to a construction of the peculiar language of the statute then before the court, which did not present the question of whether levees and drains may be reasonably regarded as included within one general subject.

The amendment to section 31, article 4, of the constitution, adopted at the November election, 1878, reads as follows : “The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees, for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessment upon the property benefited thereb3L ” Very clearly, according to the familiar rules of construing language, the nominative to the verb “provide,” is “the General Assembly,” and not “the owners of lands.” The General Assembly may provide for the organization of drainage districts, and vest the corporate authorities thereof with power, etc. It would be absurd to say the owners of lands could vest the corporate authorities with power, especially over the lands of others not uniting in .creating the corporation, which is indispensable to the effectiveness of the contemplated corporation.

We are unable to discover, here, any limitation or restriction upon the General Assembly as to the agencies to be used in the creation of the corporation. Surely there can be no reason why the county court may not be invested with power to inquire into and find the existence of certain preliminary facts deemed important as prerequisites to the corporation. This is not unusual, but in all like cases, where the facts deemed necessary to be found are of a nature that the General Assembly can not conveniently investigate them, the practice has been to refer their determination to some local tribunal. (The People v. Reynolds, 5 Gilm. 1; The People ex rel. v. Salomon, 51 Ill. 37.) The latter case was identical in principle in this respect with the present case. It is the statute that creates the corporation,—not the county court; but the statute only becomes operative when the prescribed facts are found, and the finding is entered of record by the county court, as directed by the act. The questions of fact referred to the county court are such as a court is peculiarly competent to pass upon, and we are of opinion the objection is destitute of merit. In another respect the constitutionality of this act was questioned by counsel in Moore v. The People ex rel. 106 Ill. 376, and we there held it free of constitutional objection. We now again hold, after considering the present objections, that it is a valid constitutional enactment.

Assuming, then, the act to be valid, we come to the next objection urged against the judgment below by counsel for appellant, which is, that no legal corporation has been created here, because the terms of the act have not been complied with in the several steps required to be taken for the purpose of creating such corporation. Counsel particularly specify and object that the notice required of the presentation of the petition to the county court for the formation of the district was not given, and also that the notice required to be given upon the filing of the report of the commissioners for confirmation was not given, and hence that the court never obtained jurisdiction to enter the several orders which were entered, and which were indispensable to the creation of the corporation.

The 1st section of the statute authorizes the formation of drainage districts. The 2d section requires, for that purpose, the filing of a petition in the county court, and prescribes what it shall contain. The 3d section provides how notice shall be given, and for what length of time. The 4th section authorizes the court to hear the petition at any probate term, and to determine all matters pertaining thereto under that act, and to adjourn the hearing from time to time, etc. The 5th section authorizes all persons through or upon whose land any of the proposed work may be constructed, or whose land may be damaged or benefited thereby, to appear and contest, etc.; directs what facts shall be inquired into and what evidence in reference thereto shall be admissible, etc., and concludes thus: “If the court, after hearing any and all competent evidence that may be offered before it, for and against the said petition, shall find that the same has not been signed by a majority of the land owners, as hereinbefore required, the said petition shall be dismissed at the cost of the petitioners; but if the court shall find that the petition has been signed by land owners constituting such majority, the court shall so find, and such finding shall be conclusive upon the land owners of such district that they have assented to and accepted the provisions of this act; and if it shall further appear to the court that the proposed drain or drains, ditch or ditches, levee or other works, is or are necessary, or will be useful, for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or mining purposes, the court shall so find, and appoint three disinterested persons as commissioners, to lay out and construct such proposed work. ” The 6th section prescribes the oath which such commissioners shall take before entering upon the duties of their office. The 7th section requires that they shall elect one of their number chairman, and authorizes them to elect another as secretary. The 8th section provides that a majority of the commissioners shall constitute a quorum, and that its concurrence shall be sufficient to decide any matter pertaining to their duties. The 9th section prescribes the duties of the commissioners, and requires them to report, as to certain matters, in writing, to the court. The 10th section directs that “if the commissioners shall find that such costs, expenses and damages are more than equal to the benefits there will be bestowed upon the land to be benefited, they shall so report, and the proceeding shall be dismissed at the cost of the petitioners.” The 11th section authorizes the commissioners to have surveys, plans and specifications made, etc., which are to be reported to the court. The 12th section gives the commissioners authority to deviate from the route or terminus of the drains, as specified in the petition. The 13th section requires the clerk of the county court, upon the report of the commissioners being filed, to cause notice to be given of the day upon which application will be made for the confirmation of the report, and prescribes the length of time; and it also authorizes all persons interested to appear at that time and contest the confirmation of the report, or show that it ought to be modified, and to introduce evidence, etc. The 14th section provides that if, upon the hearing, the court shall be of opinion that the objections are not well taken, or if no objections shall be made, order of confirmation shall be entered. If it shall appear that the same ought to be modified, the court shall modify it to conform to the equities in the premises, or if not sufficiently informed, the court shall order the commissioners to revise and correct their report, etc. The 15th section authorizes the court, in case the report be referred back to the commissioners for amendment, to fix a day when the commissioners shall again present their report, or to adjourn it to the next term of court, and in either case the hearing shall stand adjourned to the time designated. The 16th section provides: “If, after the hearing of all objections, if any, to the report of the commissioners, the court shall be satisfied that the said report should be approved, the court shall cause an order of confirmation of the same to be entered, ” and then sets out the form thereof.

The petition here, it may be assumed, because it is not objected to, sufficiently conforms to the requirement of section 2; but there are certain notices and certificates of publication found among the files, which, counsel for appellant contend, do not show such notice of the filing of the petition as is required by section 3. The petition was filed on the 26th of January, 1880, and the notices on file are to the effect that it would be presented to the county court at its February term, which, as we understand from the argument of counsel, would begin on the 16th of February, 1880. The record shows that the petition was presented to the county court on the 23d of February, 1880, and the order of court then entered of record specifically finds that due notice of the filing of the petition had been given, reciting in what manner, and then proceeds: “And the court having heard the evidence introduced in support of said petition, and being now fully advised in the premises, doth find that the petition herein is signed by a majority of the owners of lands within the proposed district who are of lawful age, and who represent one-third in area of the lands proposed to be benefited by the proposed work.” It then finds and recites the object and prayer of the petition, and thereafter proceeds: “It is therefore ordered that Alfred Stebbins and Bufus M. Murray, of said county of Pike, and John 0. Bernard, of said county of Adams, three disinterested persons, be and they are hereby appointed commissioners to lay out and construct said proposed work.” It then directs they shall take the oath prescribed, after which they shall examine the lands in the petition proposed to be protected and drained, and the lands over which the levee proposed to be repaired and maintained passes, and determine and report the matters prescribed by section 9. The record shows that the commissioners thus appointed, before entering upon the duties of their office, took and subscribed the oath prescribed by section 6. The record further shows that they made their report, as directed by sections 9, 10, 11 and 12, to the May term, A. D. 1880, of the county court, which was filed on the 28th of April. The clerk of the county court caused notice to be given of the filing of this report, and of the day upon which application would be made for the confirmation thereof; but counsel for appellant contend that certain notices, certificates, etc., found among the files, show that the notice was not given in the manner and for the length of time prescribed by the 13th section. At the May term, A. D. 1880, of the court, the following order of the court, being in literal conformity with the order prescribed in section 16, was entered of record, omitting the caption:

“This day the report of Rufus M. Murray, Alfred Stebbins and John O. Bernard, commissioners heretofore appointed by this court to examine the lands of the petitioners for the purposes specified in the petition filed in this cause, having been filed, and it appearing to the court that due notice has been given to all persons interested, for the length of time and in the manner required by law, of the application to this court for the confirmation of said report, and the court having duly examined said report, and considered all objections to the same, it is ordered by the court that the report of said commissioners be and the same is hereby confirmed. And the court further finds that the work proposed in said petition to be done will be useful, for agricultural and sanitary purposes, to the owners of land in said proposed district. And the court also finds that the persons who have signed said petition are of lawful age, and are a majority of the land owners, and who represent one-third in area of the land to be affected by such proposed work. And the court further finds that said drainage district is duly established, as provided by law. ”

Section 16 further provides, after prescribing this form of judgment, as follows: “And upon entering such order of record, said district is hereby declared by law to be organized as a drainage district, by the name mentioned in said petition, and with the boundaries fixed by the order confirming the report of the said commissioners. And said district is hereby declared to be a body politic and corporate, by the name mentioned in said petition, as aforesaid, with the right to sue and be sued, to adopt and use a corporate seal, and to have perpetual succession; and the commissioners appointed as aforesaid, and their successors in office, shall, from the entry of such order of confirmation, constitute the' corporate authorities of such drainage district, and shall exercise the functions conferred upon them by law. ” At least, therefore, there was, then, here, after the entering of this order, a corporation de facto. An attempt was made to follow each step prescribed by the statute, and every corporate agency provided for is professedly brought into existence. Moreover, the record shows that soon after the appointment of these commissioners they organized a board, by electing one of their number as chairman and another as secretary, as provided by the 7th section; that they commenced the repair of the levee in 1880; that they collected and expended in so doing, up to 1883, some $80,000, and contracted debts, most of which are due, to the amount of $10,000, etc., during which time it does not appear that any legal attempt was made to prevent their action as a corporation. Under repeated decisions of this court, it is clearly not now admissible, in this form of action, to question the existence of this corporation, and the authority of these commissioners to act in that capacity. There being an acting de facto corporation, its existence, and the authority of its acting officers, can only be questioned by a proceeding by quo ivarranto. Marsh v. Astoria Lodge, 27 Ill. 421; President and Trustees v. Thompson, 20 id. 197; Coles County v. Allison, 23 id. 437; Tisdale v. President and Trustees of Minonk, 46 id. 9; Kettering v. Jacksonville, 50 id. 39; Mitchell et al. v. Deeds, 49 id. 416; Town of Geneva v. Cole, 61 id. 397; Lawson et al. v. Kolbenson et al. id. 405; Trumbo v. The People, 75 id. 562; The People v. Newberry's Estate, 87 id. 41; Alderman v. School Directors, 91 id. 179; Osborn v. The People, 103 id. 224.

In Trumbo v. The People, we held that notwithstanding the fact that a school district had been formed in violation of a statutory requirement, the legality of the district could not be questioned in a collateral proceeding, and that the only mode of questioning it is by information in the nature of a quo warranto. That case was analogous to this, in that there the proceeding was to collect a tax, and here it is to collect a special assessment; and it is therein shown that the case is not analogous to Stowe v. Flagg, 72 Ill. 397, and Bigelow v. Gregory, 73 id. 197, where it was held that in suits against individuals, who set up in defence of their individual liability that they had formed themselves into a corporation, and hence their liability, if any, was a corporate one, such defence might be resisted by showing that the pretended corporation had not been legally formed, because of a non-compliance with a statutory prerequisite to the formation of the corporation. Trumbo v. The People was approved and followed in The People ex rel. v. Newberry’s Estate, where, also, to a proceeding for the collection of a school tax, it was attempted to interpose the defence that there was no such school district as that by and in behalf of which it was purported the tax was levied, and it was held it was sufficient there was a corporation de facto,—that the legality of its organization could only be inquired into upon quo warranto.

In Osborn v. The People, the corporation was created for drainage purposes under this identical law, and the proceeding, as here, was for the collection of a special assessment. There it was proposed, in defence, to show that a number of the petitioners were not in fact owners of land, as required by section 2 of the statute, and rejecting such, there were not the requisite number of petitioners to give the court jurisdiction. The question was precisely analogous to that raised here, for the requisite number of petitioners was as indispensable as the notice to those not petitioners, to give the court jurisdiction over the persons of those to be affected. It was held, -as an alternative view of the question, that the validity of the corporation could not be thus questioned,—that it could only be questioned upon quo warranto.

This, then, leaves us only to inquire into the objections urged to the proceedings subsequent to the creation of the corporation.

Section 16 further provides, that after the creation of the corporation a jury shall be impaneled to assess damages and benefits, and directs the mode of summoning them, etc. The iTth section directs that the jury so impaneled shall proceed to examine the lands to be affected by the proposed work, and ascertain the damages and benefits to the lands, and shall make out an assessment roll, in which shall be set down, in proper columns, the names of the owners, when known, a description of the lands, the number of acres in each tract, if damages allowed, the amount of the same, and if benefits are assessed, the amount, and in case of both benefits and damages, the balance to be carried forward to separate columns for damages or benefits, as the case may be. The 18th section directs the manner of assessment, and in what proportion it shall be made against each part. The 19th section provides, that “when the jury shall have completed their assessment * * * they shall fix a time and place when and where they will attend * * * for the correction of the assessment, and the commissioners or the jury shall give at least ten days’ notice of such time, and place, and object of such meeting, by posting and publishing notices, as required in section 3 of this chapter, prior to the time so fixed, and that the affidavit of any creditable person that he has posted said notices, and the certificate of the purchaser that the publication has been made, shall be sufficient evidence óf such facts.” Section 20 requires that the jury shall, at the appointed time, appear and hear all objections, “and shall make such corrections as shall seem just, and shall adjust such assessment so as to make the same just and equitable.” Section 21 provides for compelling the attendance of witnesses, keeping order, etc., at the hearing. Section 22 requires that the jury, when the assessment has been so corrected, or found correct, upon hearing, shall confirm the same, and that it shall be certified by the foreman of the jury, and delivered to the commissioners, who shall return it to the court within ten days from such confirmation, and the same shall stand for hearing at the next term thereof, if filed ten days before the term. Sections 23 and 24 provide for appeals, and direct the manner of their trial. Section 25 directs that when the assessment roll has been corrected, as aforesaid, the court shall confirm it, and cause it to be spread upon the records, and that appeals and writs of error shall be allowed thereupon, as in cases of appeals from and writs of error to the county court in proceedings for the sale of lands for taxes or special assessments.

No objection is taken to the sufficiency of this record with reference to the impaneling of the jury, as provided by the 16th section, nor to their proceedings pursuant to the 17th and 18th sections; nor is any question raised as to the proceedings under any other section, to and including the 25th section, except the 19th. But it is objected that the notices required by that section were not given, and upon this point counsel insist the record should show notices by publication, at least once a week, for three successive weeks, in some newspaper published in each county. We can not concur in this construction of the section. Section 19 expressly prescribes the time of publication, and that subject is not at all affected by section 3. It says, “the commissioners or the jury shall give at least ten days’ notice of such time, and place, and object of such meeting.” That idea is specifically and unequivocally expressed, and can, as we think, admit of no rational doubt. The next thing, then, is to ascertain how the notice shall be given, the time for which being fixed. The section answers, “by posting and publishing notices, as required in section 3 of this chapter, prior to the time so fixed, ”—that is, a time at least ten days in advance of the giving of the notice. How, then, does section 3 require notices to be posted and published ? That section answers, “posting notices in at least five of the most public places in said proposed district in which said work is to be done, and also by publishing a copy thereof in some newspaper or newspapers published in each county from which any part of said district is proposed to be formed.” The time of the notice being given by section 19, is, of course, to be stricken out of the language of section 3, when construing them together, to ascertain how the publication is to be made.' The record shows the posting of notices, and the publication of notices for more than ten days, and it is therefore sufficient.

All objections which could have been urged at the time of the confirmation of the assessment roll, and which were not then urged, must be considered as waived, and can not be urged for the first time on application for sale of lands for a delinquent assessment. Such has been the repeated ruling of this court in cases of special assessments for the opening, repair and improvement of streets, and there is no difference in principle between those cases and the present. The People v. Brislin, 80 Ill. 423; Andrews v. The People, 84 id. 28; Lehmer v. The People ex rel. 80 id. 601; Prout v. The People, 83 id. 154; Chicago and Northwestern Ry. Co. v. The People, id. 467; Gage v. Parker, 103 id. 528.

The point is made that the 2d section only authorizes the corporations to be created pursuant thereto,—first, to construct drains, ditches and levees; and second, to maintain and keep in repair any such drains, ditches and levees heretofore constructed under any law of this State,—whereas this corporation does not profess to be created under the first head, but simply for the purpose of maintaining and keeping in repair what is known as the “Sny Island levee, ”—a levee claimed to have been made by a corporation purporting to be created under and by virtue of “An act to provide for the construction and protection of drains, ditches and levees, ” approved April 24, 1871, as to which corporation this court held in Webster v. Levee Commissioners, (unreported,) following Updike v. Wright, 81 id. 49, that the construction of a levee along the river, as an independent work, was not authorized by the constitution then in force, or said act of April 24, 1871, and that so much of that act as purported to vest drainage commissioners with power to levy and collect taxes for the construction of drains, levees, etc., was repugnant to the constitution, and inoperative.

It would, perhaps, be a sufficient answer to this to say that we can not take judicial notice that the purpose for which the corporation was created was not, in the language of the 2d section, “to keep in repair drains, ditches and levees heretofore constructed under any law of this State, ” and whether, in fact, it was or was not, was a question to be raised and determined by proof on the confirmation of the assessment roll, and which, consequently, now comes too late. But assuming the question to be properly before us, it must be decided against appellant. It is not accurate to say, merely because a law is repugnant to some provision of the constitution as in favor of particular rights, it is no law for any purpose. The respects wherein the act of April 24, 1871, was condemned as being unconstitutional, were only as affecting those over whose lands the drains, levees, etc., were proposed to be constructed without the owners’ consent, and those against whose property it was proposed to assess the costs of constructing such drains or levees without their consent. As to all other persons, and for all other purposes, the act was valid law. As to those who were seeking to construct the drain, levee, etc., and who were promoters of the corporation, and to those who otherwise relinquished all right to interpose these objections to the validity of the law,—as, for instance, those who gave the right of way for the drains and levees, and who voluntarily paid their special assessments,— the law was not void. Cooley’s Const. Lim. (1st ed.) 181; Baker v. Braman, 6 Hill, 47; Embury v. Conner, 3 N. Y. (3 Comst.) 511. And precisely the same must he true as to whether the construction of the levee was in excess of the authority conferred by the statute. As to those who did not, in some proper way, give their consent thereto, and whose property was proposed to be taken or damaged thereby, or to be charged with the expense thereof, the act of building the levee was not “under any law of this State;” but as to those who built the levee upon their own land, or who voluntarily consented that others might build it there, and to those who voluntarily built it, and who voluntarily paid their assessments for that purpose, it was “under the law of this State.” Except as against owners of land resisting the appropriation of their property to public use, or the damaging of it for that purpose, or resisting the enforcement of special assessments for the payment of the expenses of the construction of such levee, the “Sny levee” was at all times entitled to the protection of law,—and even as to those, their remedy was not to disregard all legal rights therein of others, but to enforce their own legal rights through the aid of courts.

We are, therefore, of opinion that so far as the levee was constructed and remained at the date of the filing of this petition, it may fairly be regarded as falling within the meaning of the term, “under any law of this State.” This is, moreover, strengthened by the history of the constitutional amendment, of which we may take judicial notice. There was no law in force authorizing the construction of levees over the lands of others (save the act of April 24, 1871,) at the time Updike v. Wright, and Webster v. Levee Commissioners, supra, were decided. To obviate the effect of those decisions,—allow the construction of levees, as well as drains, upon the lands of others,—and to authorize the formation of municipal corporations for the purpose of constructing drains and levees, the amendment to section 31, article 4, was submitted to, and adopted by, the people, at the November election, in 1878. The act of May 29,1879, but repeats, in this respect, the language of that amendment. The levees, therefore, which must have been referred to, because none other could reasonably have been intended, were the levees which had been constructed, but could not be kept in repair because of the decisions in Updike v. Wright, and Webster v. Levee Commissioners.

The 26th section provides, that at the time of confirming said report the court may order the assessment of benefits to be paid in installments of such amounts as will be most convenient for the accomplishment of the proposed work ; and it also contains this further provision: “But in cases where a levee or ditch has been heretofore built under any law of this State, * * * the annual assessment for keeping the same in repair shall be due and payable on the 1st day of September, annually, and shall be a lien on the lands from confirmation of the assessment. * * * The court shall require the commissioners to report the condition of the work, at its July term of each year, with certain estimates for the ensuing year; and if the court shall find a less amount than the whole of the annual assessment for that year will do to accomplish the work and pay the expenses, then it shall, by order, fix the amount to be paid for that year, and only that amount shall be collected, and the excess shall be remitted.” There is no objection urged that this section has not, in the present instance, been complied with. But section 27 directs that immediately after the entry of such confirmation by the court, the clerk shall make out and certify to the commissioners a copy of such assessment roll, and shall so make out and deliver to the commissioners separate copies of the same, pertaining to the lands situated in the different counties, which shall be recorded in the recorder’s office of the respective counties in which the lands are situated, and shall be notice of the lien thereof to all persons. Section 33 provides, that “the commissioners, upon receiving such certified copy of such assessment roll, shall immediately cause a notice to be published for three weeks, in the manner required in section 3, ” and then gives a form of the notice. And section 34 then proceeds: “If the assessment due upon said lands shall not be paid on or before the day named in the notice given, as in section 35 of this act, it shall be the duty of said commissioners, if they have not appointed a collector, as aforesaid, and if so, then of said collector, to make out a certified list of such delinquent lands upon which the assessments remain unpaid; and the same shall be by him or them, on or before the 10th day of March next after the same have become payable, returned to the county collector of the county or counties in which such lands shall lie, and when the same shall lie in different counties, a separate return shall be made for each county of the delinquent lands therein; and it shall be the duty of the collector to whom any such return has been made, to transfer the amounts thereof from such returns to the tax-books in his hands, setting ddwn therein opposite the respective tracts or lots, in proper columns prepared for that purpose, the amount assessed against each lot,—and the like proceeding shall be had, and with the like force and effect, in the collection of such delinquent assessments, and the sale of said lands for non-payment thereof, as in ordinary collections of State and county taxes by county collectors, and of sales of real estate by them for such non-payment, and of redemption from such sales.”

It is shown by the record that on the 10th day of March, 1882, there appeared to be due from appellant the second and third installments of the assessments made to repair the old levee in 1880, as shown by the return of the drainage collector to the county collector, with a small amount of accrued interest. These amounts were transferred by the county collector to the tax-books in his hands, and he set down opposite the respective tracts or lots the amount assessed against each tract or lot; but the objection is urged by appellant that this was not done in a separate column, and that the extension is therefore void. The requirement of section 34, it will have been observed, is not that the amounts shall be transferred to a separate, but it is simply that it shall be transferred to a proper column. The requirement in section 162, chapter 121, of the Revised Statutes of 1874, that “a column in the tax-book shall designate the amount of road tax, ” was less equivocal,—indeed, was emphatic; and yet we held in Thatcher v. The People ex rel. 79 Ill. 605, that the non-observance of this requirement did not affect the validity of the tax.

Counsel, however, insist that this construction was by virtue of the sweeping provisions of section 281 of the general Revenue law, (Rev. Stat. 1874, p. 904,) and, perhaps, other provisions of like character, which they insist apply to taxes for State purposes only, and have no application to special assessments. This position is not tenable. Section 292 of the same statute, (page 907,) defines the words “tax, ” and “taxes,” as used in that statute, to mean “any tax, special assessment, or costs, interest or penalty imposed upon property.” And so we held in Webster v. The People ex rel. 98 Ill. 343, that section 88 of the Practice act, as amended by the act of 1879, giving an appeal to this court instead of to the Appellate Court, “in all cases relating to the revenue, ” etc., is intended to embrace public revenue, whether State or municipal, and all taxes and assessments imposed by public authority,—and this was reiterated and followed in The People ex rel. v. Springer, 106 id. 542. Our statutes and decisions furnish no support to the position assumed by counsel in this respect.

The point attempted to be made in appellant’s argument, that a discontinuance of the petition and proceedings thereunder took place at the March term, 1880, is answered by an amended record filed by our leave, since the cause has been pending, showing that the case was on docket, and was continued by order of court at that term.

This opinion might, without impropriety, terminate here; but counsel have argued the constitutionality of the act of May 24, 1883, entitled “An act to legalize drainage districts organized in pursuance of the act hereinafter mentioned, and to legalize the assessments of benefits in such districts, and certain sales made in pursuance thereof, and to authorize districts to purchase lands' at certain sales for delinquent special assessments; ” and in view of the public interest in the question, we deem it advisable to pass upon it so far as it may affect questions of a like character with those we have been considering. The act referred to in the title is the act of May 29, 1879, under which the proceedings before us were originated and carried on.

One objection urged against the act of May 24, 1883, is, that it contains more than one subject. The act is, in effect, so far as concerns the record before us, but an amendment to the act of May 29, 1879, making perfect what, but for it, might be imperfect, and adding to its powers,—all in subordination to, and to accomplish, the object which forms the general subject of that act, namely, “the protection of land against surplus water, or, in other -words, directing the flow of water for the protection of lands. ” This statute but supplements omitted details essential to the efficacy of that act.

Another objection urged is, that it is not competent for the General Assembly to provide for judgment against property, without notice, which, it is contended, is done by this act, if it be sustained as a curative act, and applicable to the present case. The rule is, that “if the thing which failed to be done, and which constitutes the defect in the proceeding, is something which the legislature might have dispensed with the necessity of by a prior statute, then a subsequent statute dispensing with it retrospectively must be held valid. ” Cooley’s Const. Lim. (1st ed.) 371; Town of Fox v. Town of Kendall, 97 Ill. 76; Fairfield et al. v. The People, 94 id. 253; Cowgill v. Long, 15 id. 202. We have already seen that, in onr opinion, the General Assembly is left unrestricted by the amendment adopted at the November election, 1878, as to the manner of creating corporations for the construction of levees, drains, etc. We perceive no reason why it might not have been provided that such corporations should be created after publication of notice for one week, or, indeed, without any notice. Then, as to proceedings to charge lands with the amount of special assessments, no particular kind or length of time of notice is prescribed by the constitution, and it is not perceived why one week’s notice, by publication, might not have been sufficient. And so, likewise, in regard to the details of making returns, the whole matter rested in the discretion of the General Assembly. All, therefore, that this act purports to cure, might, in the first instance, have been omitted, or been declared immaterial, and so is within the constitutional power of the General Assembly to cure.

The act of May 24, 1883, does not authorize judgment against property, without notice, but simply on different and shorter notice than that claimed to have been required by the act of May 29, 1879. We express no opinion as to the validity or' effect of the act of May 24, 1883, as respects defective sales of real estate, made prior to the time it took effect.

The judgment is affirmed.

Judgment affirmed.


text:
    Daniel Irwin et al. v. Lewis M. Dyke et al.

      Filed at Springfield March 26, 1884.

    1. Partition by parol—confirmation in chancery. Where two persons having bought a tract of land, each having an equal interest, make a verbal partition, dividing the premises equally, each taking possession of and using his part of the same, and no unfairness is shown, a decree confirming such partition after the death of one of the parties, is proper.
    2. Trust—whether it exists. Where a person buys land in his own name, and after his death his son sets up in defence of a partition between himself and another heir, that the legal title was held by the father in trust for him under a parol agreement, if the proof of the trust be such that the alleged trust could not have been enforced against the father in his life, it can not be as between the heirs. To enforce such an alleged trust against the other heir, it must be upon the clearest and most satisfactory evidence.
    3. Cross-bill—whether necessary. Where a person dies holding the legal title to a tract of land, on bill for partition between his heirs at law, consisting of a son and daughter, the question whether the father acquired and held the legal title in trust for the son alone, can only be tried on cross-bill filed by the son, and it is error to give him the entire tract merely upon his answer claiming to be the sole owner of the equitable title. That is affirmative relief in the strictest sense, and can not be granted except on cross-bill.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. J. S. Neville, for the appellants.
    Messrs. Fifer & Phillips, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this cáse was for partition, and was brought by Daniel Irwin and Narcissa Irwin, against Lewis M. Dyke and Sarah Dyke. It is alleged that complainant Daniel Irwin, and one Benjamin Dyke, now deceased, were the owners in fee simple of two hundred acres of land, consisting of one quarter section and one quarter-quarter section, and that previous to his death, Benjamin Dyke and complainant Daniel Irwin made a verbal partition of their lands, by which Irwin got one hundred acres off the east side of the quarter section, and took actual possession, and has continued in possession ever since; that Benjamin Dyke died intestate, leaving him surviving Sarah Dyke, his widow, and Narcissa Irwin and Lewis M. Dyke, his children and only heirs at law, and that Narcissa Irwin and Lewis M. Dyke are each entitled, as heirs at law of Benjamin Dyke, deceased, to an undivided half of the other one hundred acres, subject to the dower of Sarah Dyke. Other facts in regard to the payments made upon the lands by the respective parties, and the sum remaining unpaid, are stated in the bill, but it is not necessary to the present decision to state them. Sarah Dyke filed her separate answer, and admits the purchase of the lands by Daniel Irwin and Benjamin Dyke, as alleged, but denies that Benjamin Dyke was the real owner of such lands, and avers the land was bought for Lewis M. Dyke, and that he was placed in possession of the same, and disclaims any right of dower in such land. Lewis M. Dyke, by his separate answer, admits that Benjamin Dyke, since deceased, held the legal title to the lands described in the bill as having come to Narcissa Irwin and himself, as heirs at law of the intestate, and alleges he was not the real owner, but held the legal title in trust for him. Other matters are also stated in the answer, many of which are not material to the decision to be rendered.

The object of the bill seems to be three-fold: First, to have the verbal partition of the lands, as made by the parties in interest, confirmed and established; second, to adjust the equities between the parties as to the payments on the land, and as to the sum remaining unpaid; and third, to have a partition of the other half of the lands of which Benjamin Dyke died seized, made between his heirs at law, Narcissa Irwin and Lewis M. Dyke. It seems to be conceded the verbal partition of the lands was fairly made, and no objection is interposed to having it confirmed, as was done by the decree, nor is any serious objection urged in this court to the decree so far as it adjusts the equities between the parties in interest as to payments made and to be made. The contention is as to whether partition of the one hundred acres of which Benjamin Dyke died seized, shall be made between his son and daughter, who constitute his only heirs at law. As the decree is now to be reversed for another cause, the sufficiency of the evidence to sustain the claim of ownership put forth by Lewis M. Dyke to the entire one hundred acres of which the intestate, in his lifetime, held the legal title, will not now be" discussed, further than to say the evidence is not of the most satisfactory character. It leaves on the mind very grave doubts, if the contract between the father and the son was as it is alleged in the answer to be, whether it could have been enforced against the father in his lifetime; and if it could not have been enforced against him, it certainly could not be enforced against his heirs since his death. The daughter ought not to be divested of her inheritance except upon the clearest and most satisfactory evidence, and that issue can only be tried on a cross-bill, when the burden of proof will rest on the heir claiming the entire estate. It is conceded the ancestor of the heirs' claiming the land's was seized of the legal title at the time of his death, and of course that title came to his heirs," and vested in them. Unless divested by decree of court, each heir would take an equal share as an absolute estate. The decree provides that Narcissa Irwin “take no part in said land. ” Although very inartifieially drawn in this respect, the effect of the decree perhaps would be to divest Mrs. Irwin of her legal title to the lands of which her father died seized. That is affirmative relief in the strictest sense, and in no event could be granted except upon cross-bill. The practice in this regard is so well settled by the previous decisions of this court, it is not necessary to cite cases in its support.

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

Decree reversed.