text:
    William R. Hamilton v. Ira R. Harvey.

      Filed at Ottawa September 26, 1887.

      1. Specific performance—generally. Courts of equity will decree a specific performance when the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed, but not otherwise.
    2. Same—of the certainty required in contract—as, in matter of description. A contract must be reasonably certain as to its subject matter, its stipulations, its purposes, its parties, and the circumstances under which it was made, to be specifically enforced in equity. If land is the subject matter, it should be so described as to leave no uncertainty as to its quantity, shape and location, without a resort to parol evidence.
    3. A land owner being desirous of leasing manufacturing buildings held by him, and obtaining the location of a factory in the vicinity, whereby to add value to other lands owned by him, proposed, in writing, to a real estate broker, as follows: “Will allow you as commission for said location, one-third interest in five acres, located near said works:” Held, that the description of the five acres was too vague and uncertain to justify a decree for specific performance, and this being patent, could not be explained by parol testimony.
    4. Same—of the character of performance required—a contract construed. An owner of a tract of land being desirous of enhancing the value of his other lands in the vicinity, being about twenty-seven acres laid out in blocks, etc., made this agreement with a real estate broker: “Mr. W. R. H.: Dear Sir—I hereby agree to lease my building at Pacific Junction, known as * *. * at $100 per month for first year, or the privilege hereafter of buying, if they choose, at $10,000; or if building should not be suitable, will donate two hundred feet square along the railroad for company to build on. Will allow you, as commission for said location, one-third interest in five acres, located near said.works.—I. R. H.” The agent effected a temporary lease of the buildings for two years, and claimed the one-third interest in the five acres: Held, that a permanent location was the one intended, and that not having been effected, or any sale made, it would be unfair to specifically enforce the contract.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.

      Mr. John S. Miller, and Mr. B. F. Chase, for the appellant:
    The maxim, id certnm est quod cerium recldi potest, applies to the description of the subject matter of the contract, in a suit for a specific performance.
    The complainant had the right to select the five acres in which he was to have an interest, and did so, and this obviated any uncertainty in the description. Jenkins v. Green, 27 Beav. 437.
    Of everything uncertain which is given or granted, election to make it-certain remains to him to whose benefit the grant or gift is made, except in special cases. Perkins on Conveyancing, secs. 73, 75; Stalman on Election, 16; Moore, 882, in PI. 1226; Shep. Touch. 251, 447; Stukeley v. Butler, Hob. 168; Hungerford’s ease, 1 Leon. 30; 3 Comyn’s Digest, 612; 1 Rol. 725; L. 35, 45 ; Coke’s Litt. 142a.
    But if appellee had the right of election, on his failure to exercise it, and his repudiation of the contract, it then devolved on appellant. Stalman on Election, 19; Fry on Specific Performance, sec. 322; Lord Kensington v. Phillips, 5 Dow. 61; Pritchard v. Ovey, 1 Jac. & Walk. 396.
    The question before the court, in a case of specific performance, in such a case, is not whether the contract has been made certain, but is it such a contract as can be made certain. And if it is, then the court will permit it to be done, or will refer it to the master, or direct the proper inquiries to enable it to be done. Fry on Specific Performance, sec. 323, et seq.; Jenkins v. Green, 27 Beav. 438; Owen v. Thomas, 3 M. & K. 353 ; Ogilvie v. Foljambe, 3 Mer. 61; Walker v. Railway Co. 6 Hare, 594.
    The plaintiff is entitled, at the hearing, to a reference of title, to inquire into and ascertain the defendant’s title. This practice is thoroughly well settled, and it is proper practice to ask and direct such reference at the hearing. Fry on Specific Performance, secs. 1284,1300,1323; Ogilvie v. Foljambe, 3 Mer. 61.

      Mr. James Frake, for the appellee:
    The bill was properly dismissed, for two reasons: First, the land it seeks to compel a conveyance of, is not sufficiently described to make it certain; second, if it was certain, to compel a specific performance would be to the appellee an .act of injustice.
    If the description of the land is vague and indefinite, or not certain, equity will not decree a specific performance. Capps v. Hott, 5 Jones’ Eq. 153; McKibbin v. Brown, 1 McC. 13; Lord Walpole v. Lord Oxford, 3 Ves. 420; King v. Ruckman, 20 N. J. Eq. 316; Jordan v. Fay, 40 Me. 130; Bladgen v. Bradbear, 12 Ves. 446; Towney v. Crowther, 1 Bro. 318; Bagdell v. Drummond, 11 East, 142; Parkhurst v. Van Cortland, 1 Johns. Ch. 273; Hammer v. McEldowney, 46 Pa. St. 334; Carr v. Land Co. 22 N. J. Eq. 85; Bowman v. Cunningham, 78 Ill. 48; Story’s Eq. Jur. sec. 741; Fry on Specific Performance, sec. 211.
    What has the appellant done to entitle him to one-third of five acres in Bisbee’s subdivision ? Land in this subdivision is worth $1500 per acre. One-third of five acres would be worth $2500. A lease for two years has been executed by the Maxwell Patent White Lead Works, at a rental of $1000 for the first year, and $1200 for the second year, and that is all.
    The contract must be fair, equitable and just, and it must appear that it will not be unjust or oppressive on the defendant to have it enforced. 3 Pomeroy’s Eq. Jur. 447, note 1; Race v. Weston, 86 Ill. 95; Bowman v. Cunningham, 78 id. 48; Tamm v. Lavalle, 92 id. 270; Fish v. Leser, 69 id. 395 ; Stone v. Pratt, 25 id. 25; Frisby v. Ballance, 4 Scam. 487; Gosse v. Jones, 73 Ill. 508; Franz v. Orton, 75 id. 104.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill filed in the Superior Court of Cook county January 22, 1886, by the appellant against the appellee for the specific performance of the following instrument:

“Chicago, III., Nov. 17, 1885.
“Mr. W. R. Hamilton:
“Dear Sir—I hereby agree to lease my bldg, at Pacific Junction, known as the Foster Rotary Plow Factory Co., at $100 per month for first year, or the privilege hereafter of buying, if they choose, at $10,000; or if building should not be suitable, will donate 200 ft. square ft. along the R. R. for company to build on. Will allow you, as commission for said location, interest in 5 acres located near said works.
I. R. Harvey. ”

Answer was filed to the bill and replication to the answer. The cause was heard upon the pleadings and upon proofs taken by the complainant. The defendant introduced no testimony. The court below dismissed the bill for want of equity.

The circumstances surrounding the execution of this instrument were briefly as follows:

Appellee owned some land at Pacific Junction in Cook county and also held the equitable title to the lots, upon which stood a building known as the Foster Rotary Plow Company Factory. Appellee and other property owners were desirous of having a factory located in the vicinity, which would employ a large number of men and thus give value to their property. Appellant, a real estate agent in Chicago, undertook to accomplish what was desired. Through his efforts a lease dated December 18, 1885, was made Tiy W. C. Grant, trustee, to L. C. Maxwell, C. R. Johnson and C. H. Jackson, representing the Maxwell Patent White Lead Works, leasing the premises occupied by said building from January 1, 1886, to December 31, 1887, at $1000 for the first year and $1200 for the second year.

We think that the bill was properly dismissed. The instrument here recited is too uncertain and indefinite to justify a court of equity in decreeing its specific performance.

An application for the specific performance of a contract is addressed to the sound legal discretion of the court. Courts of equity will decree a specific performance where the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed, but not otherwise. (Bowman v. Cunningham, 78 Ill. 48.) It must be reasonably certain as to its subject matter, its stipulations, its purposes, its parties, and the circumstances under which it was made. (3 Pomeroy’s Bq. Jur. sec. 1405.) It is essential that the description of the subject matter should be so definite that it may be known with certainty what the purchaser imagined himself to be contracting for, and that the court may be able to ascertain what it is. Fry on Specific Performance, (3d ed.) sec. 327.

The description of the land to be conveyed is indefinite and uncertain. The words are, “Will allow you, as commission, * * *' interest in 5 acres located near said works.” The five acres are not described. It is not stated that they are owned by Harvey, the vendor. Their direction from the “works, ” whether north, south, east or west, is not indicated.

In Capps v. Holt, 5 Jones’ Bq. 153, the description was “a tract of land lying on the north side of the Watery Branch in the county of ...... and State of......containing one hundred and fifty acres. ” The court said: “The position thus given is^ not definite enough, and no decree for conveyance could be based -upon it. * * * The writing, of itself, clearly is too vague and uncertain in the description of the land bargained for to warrant us in declaring where it is, by wliat termini included, and decreeing a conveyance of it. ”

In Jordan v. Fay, 40 Maine, 130, the description in the memorandum was: “A lot of land joining a small tract now occupied by Michael Micue.” The court held: “There is in the writing no reference, by which the land can be determined with any greater certainty than by the memorandum. The location, size and shape of the lot are entirely wanting in the ■description, and, without a resort to parol evidence, it would be impossible to ascertain what land was intended to be the subject of the agreement; and it forms no ground for a specific performance. ”

In Hammer v. McEldowney, 46 Pa. St. 334, the description was “the houses on Smithfield street” in the city of Pittsburgh. After speaking of the alleged contract as being “without any ■designation of the houses where situate on the street mentioned, of what size, dimensions or material, or the area of ground to be embraced, and without in fact disclosing to whom they belonged,” etc., the court say: “It is a settled rule in ■equity that the specific performance of a contract will not be decreed unless its terms are clear and capable of ascertainment from the instrument itself. * * * So, courts of ■equity will not ordinarily entertain bills for the specific exe: cution of contracts with variations or additions or new terms to be made and introduced into them by parol. * * * It requires no argument or illustration to bring this imperfect ■or indefinite contract within these rules.”

In Carr v. Passaic Land Improvement and Building Co. 19 N. J. Eq. 424, and 22 id. 85, the resolution of the company was “that two acres be sold. ” It was held to be, upon its face, vague and uncertain. The court there say: “The vagueness and uncertainty is patent, and no parol proof can be admitted to explain it. ”

In King v. Ruckman, 20 N. J. Eq. 316, Euckman by a written contract agreed to sell King certain tracts of land in Bergen and Eockland counties, New York, “describing them as all the lands he owned and held contracts for in the township of Harrington,” etc. “and also two lots of land situate in Hackensack township, in the county of Bergen." The court say: “As to the parts in Harrington township and the county of Eockland, the description is sufficiently certain. It is all the land owned by Euckman, or for which he held contracts within certain boundaries. The maxim is, id cerium est quod certim reddi potest. It can be shown with certainty what lands he -owned or held contracts for in these boundaries. But the last clause seems uncertain. * * * It does not describe them as two lots owned by him, for then, if he owned only two lots there, it might be rendered certain. This contract would be complied with by his conveying two lots of ten feet square, or two lots containing a thousand acres. Nor can this part be rejected as immaterial, and performance be ordered •of the residue upon compensation. ” Although this ease was overruled in 21 N. J. Bq. 599, yet it was solely on the ground that the uncertainty was remedied by the allegations in the bill and answer; the terms, in which the opinion of the court ■upon the point stated in the foregoing extract was announced, .affirm the doctrine of 20 N. J. Bq. 316, as will be seen by .reference to Nichols v. Williams, 22 N. J. Eq. 63.

In Murdock v. Anderson, 4 Jones’ Eq. 77, a decree for conveyance was refused, where the receipt described “one house and lot in the town of Hillsborough purchased of me, ” etc. It is there aptly said: “Where a sufficient description is given, parol evidence must be resorted to, in order to fit the ■description to the thing; but where an insufficient description is given, or where there is no description, (as in our case) such evidence is inadmissible. ” See, also, Allen v. Chambers, 4 Ired. Eq. 125.

In Miller v. Campbell, 52 Ind. 125, the contract described certain land as “the one hundred and twenty acres of land in Shannon county, Missouri,” etc. It was claimed that this -description was void for uncertainty, and could not be enforced. The court say: “This position, in our opinion, is well taken and the objection is fatal to the complaint. It is a well settled principle, under the Statute of Frauds, that contracts for the sale of land must so far describe the land as that it may be identified without resort to parol evidence. * * * Doubtless the parties may have had in view a particular tract of land, containing one hundred and twenty acres, and the plaintiff may have been able to sho% by extrinsic evidence what particular tract was intended; but this would be to subvert and overthrow the statute. ”

In Lynes v. Hayden, 119 Mass. 482, Somerby agreed “to-deed to Lynes from twenty-six thousand to twenty-eight thousand feet of land situate on Walden street and "Vassal lane in Cambridge when the bounds are fixed and the street laid out the street to be forty feet wide and two hundred feet long, etc. Chief Justice Gray said: “The agreement signed by the intestate describes the boundaries of the land by the adjoining streets on the north-east and north-west only, and looks to the fixing of the bounds and the laying out of another street before the conveyance. The report finds that the bounds-were not fixed nor the location of the proposed street determined in his lifetime. The agreement is too indefinite to be-specifically enforced. ”

Appellant claims that he had the right under the contract-to select the five acres in the first place, but that, if he was not first entitled to the right of selection, such right after-wards devolved upon him, because appellee refused to select five acres, and not only so, but repudiated the contract entirely. The contract does.not in express terms confer upon, appellant the right of selecting the five acres. (Vide Carr v. The Passaic Land Improvement and Building Co. supra.)' We- % ' do not, however, deem it necessary to pass upon the question whether the right of selection devolved upon either party under the contract.

It is sufficient to say that, even if the appellant was entitled to make a selection of the five acres, his designation of the part selected by him is as uncertain and indefinite, under the facts of this case, as the description in the agreement. He says in his testimony: “I have done nothing but make the selection in my own mind. have a present selection of the five acres. * * * It is all of block 9 and so much of block 10 as is necessary with block 9 to make five acres.” There is nothing in the record to show how many acres are contained in block 9 or in block 10, or how much of block 10, when added to block 9, will make five acres.

Nor is there anything to show that appellee owns block 9. The bill avers that appellee owns about twenty-seven acres in section 2, town 39, range 13, which were subdivided into certain blocks and lots, but block 9 is not mentioned among such blocks and lots. The abstract refers to a deed conveying to appellee the premises described in the bill, but we can find no such deed in the record.

There is another respect, in which either the contract is uncertain, or in which its enforcement might be unfair. It is not altogether clear whether the location of the works at Pacific Junction, for which the commission was to be allowed, was to be a permanent location, or a location during the lease. The Maxwell company did not buy the building for $10,000, nor have they built on two hundred feet square of ground donated to them by appellee. They did nothing but take a lease for two years. Appellant says the lease entitles him to his commission, w'hile appellee claims in his answer, that the agreement contemplated a permanent location of the works and that they are not permanently located. The testimony of Maxwell shows that the manufacture of white lead at Pacific Junction is as yet an experiment, and that the question of a permanent location will not be decided until the lease ends. Appellee’s construction would seem to be the correct one, as the object of the location was to give value to the land, which could not be effected by a mere temporary lease. If the commission was to be allowed for a permanent location, then inasmuch as appellant’s own evidence proves that a permanent location there has not yet been accomplished, it would be unfair to enforce the contract. Race v. Weston, 86 iLL. 91; Tamm v. Lavalle, 92 id. 263.

The decree of the Superior Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Daniel Evans et al. v. Thomas A. Lewis et al.

      Filed at Springfield September 27, 1887.

    Drainage district— legality of organization—extending boundaries— of the remedy to bring in question such matters. The legality of the formation and organization of a drainage district, or of the extensión of its boundaries so as to take in additional lands, can'not be inquired into or questioned by a bill in chancery to enjoin the collection of assessments. The proper remedy in such case is by quo warranto.

    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. E. L. Sweet, for the appellants:
    The doctrine is well established in this State that the owner of the dominant heritage may make such drainage as is needful for the purposes of good husbandry, and the servient estate can not complain. Peck v. Herrington, 109 Ill. 611.
    If the commissioners were not authorized to take these lands into their drainage district, and tax thqra. to support their system of drainage, then the remedy in equity was proper. Cumberland County v. Webster, 53 Ill. 141; Vieley v. Thompson, 44 id. 9.
    Mr. William B. Webber, also for the appellants,
    contended that the enlargement of the district was unlawful, and that, proper notices were not given. Also, that the bill in chancery was-the proper remedy. People v. Whitcomb, 55 Ill. 172.
    Mr. Francis M. Wright, for the appellees:
    The boundaries of the district were properly and legally extended, and if not, the proper remedy was quo warranto, and not bill in chancery. Keigwin v. Drainage Comrs. 115 Ill. 347; Blake v. People, 109 id. 504; Osborn v. People, 103 id. 224,
   Mr. Justice Craig

delivered the opinion of the Court:

This was a hill in equity, brought by the appellants, to-enjoin the collection of a special assessment levied by the commissioners of Big Slough Special Drainage District, in Champaign county. In the amended bill it is alleged, that on or about the 8th day of June, 1880, under an order of the county court of Champaign county, pursuant to law then in force, a drainage district ivas organized, under the corporate name of “Big Slough Special Drainage District, ” which district embraced certain lands situated in the towns of Ludlow, Bantoul, East Bend and Condit, and its boundary lines then established, under an act entitled “An act to provide, ” etc., approved May 29, 1879, and now pretends to operate under an act entitled “An act to provide for drainage for agricultural and sanitary purposes, and to repeal certain acts therein named, ” approved in 1885; that orators are the owners of the following described lands ndt situated within said dis.trifct, (describing them); that as such owners of lands lying out of said district, they, or either of them, have not connected the drainage of their said lands with the ditches of said district since its organization, or since the completion of any supposed ditches of said district, and that no tract of said land is involved in the same system of drainage of said district ; that said lands do not require a connection with the said drainage district to protect the same frorh wash or overflow, and that, for agricultural and sanitary purposes, complainants’ said lands are not benefited by being connected with said drainage system or included’ in said district; that the drainage commissioners of said district, without lawful authority, have enlarged the boundaries of said district, or claim to have done so, by including in said district the lands above described; that said commissioners took said action of their own determination, without a petition being presented to them of as great a proportion of land owners of the district so pretended to be enlarged, as required by law, for the formation of an organized district; that no notice was given complainants of the pendency of any proceeding to attach their lands to said drainage district; that said commissioners have assessed said lands for drainage purposes, and threaten to collect the same by process of law.

The defendants answered the bill, admitting the organization of Big Slough Special Drainage District, and that Thomas A. Lewis is the treasurer of said district, and that the defendants are the commissioners thereof; that complainants own the lands as stated in said bill; deny that said lands are outside of the district, but, on the contrary, have been duly and lawfully included in said district; they were proper lands to be so included; deny that the boundaries of said district were extended without lawful authority. Defendants deny that complainants were denied the right and opportunity to show that these lands were not washed or overflowed, but, on the contrary, due and legal notice was given of the time and place of the meeting of said commissioners, when and where they would hear objections to the classification of said lands, as by law required; that all other notices required by the statute were given, and that said commissioners had jurisdiction over said lands and to make said special assessments, as by law conferred; deny that complainants are entitled to the relief prayed for in said bill.

A replication having been filed to the answer, a hearing was had on the pleadings and evidence, and upon such hearing a decree was rendered dismissing the bill.

It is conceded that Big Slough Special Drainage District was properly and legally organized under the Drainage act of 1879, but the action of the commissioners in enlarging the boundaries of the district, including therein the lands of complainants, on the 4th day of September, 1885, is claimed to be illegal, and, being illegal, the claim is that the commissioners had no authority to assess complainants’ lands.

Section 42, act of 1885, page 90, among other provisions, contains the following: “Drainage commissioners may, at any time, enlarge the boundaries of their district by attaching new areas of land which are involved in the same system of drainage, and require for outlets the drains of the district made, or proposed to be made, as the case may be-, on petition of as great a proportion of the land owners of the district so enlarged as is required for an original district. All changes thus made in the district shall be duly noted and shown upon the map and recorded in the drainage record. The commissioners shall proceed to classify the lands thus added to the district, and such land's shall be classified, and assessed or taxed with their fair proportion of the costs of the work done, or to be done, in like manner and upon the same basis as it would have been made had the new area been included in the district at its organization.” It appears from the evidence introduced on the hearing, that a petition was presented to the commissioners to enlarge the boundaries of the district so as to include the lands of complainants and others, under this section of the Drainage act, and the commissioners acted under this section of the act, and enlarged the district. After the district was enlarged, the lands were classified and assessed as is provided for in the act.

In Trumbo v. The People, 75 Ill. 562, it was held that a school tax can not be resisted oil the ground that the district levying the same was illegally formed. It is there said, that the only mode in which the illegality can be inquired into and taken advantage of, is by information in the nature of a quo warranto. In Alderman v. School Directors, 91 Ill. 179, the court again held that the legality of the formation of a school district can not be inquired into in a collateral proceeding. In Osborn v. The People, 103 Ill. 226, which was a proceeding for the collection of a special assessment for drainage purposes, it was held that the legality of the organization of a corporation can be attacked and judicially examined only in a direct proceeding, by quo warranto. In Blake v. The People, 109 Ill. 508, which was also a proceeding to collect a special assessment levied by a drainage district, the right to-question the organization of the drainage district again arose, and it was expressly held that the existence of the corporation could not be questioned collaterally. In Keigwin v.. Drainage Comrs. 115 Ill. 347, where a bill was filed to enjoin, an assessment levied on certain lands by the authorities of a. drainage district, on the ground that the organization of the district was illegal, we held that the legality of the organization or formation of a corporate body, such as a drainage-district, and its right to perform corporate acts or functions-when it is a cle facto corporation, can not be questioned by-bill in chancery.

Under the rule established in the cases cited, it is a plain-proposition that the legality of the organization of the district in question can not be called in question by bill in equity.. The action of the drainage commissioners, to enlarge the-boundaries of the district on the prayer or petition of certain land owners, may be regarded as the organization of the district, in so far as the lands are concerned which were then, for the first time, taken into the district; and whether the-drainage commissioners proceeded, in all respects, as required by the Drainage act, is a question which can not be raised by this bill. If the boundaries of the district were not lawfully-extended, and the drainage commissioners undertake to exercise powers or franchises over or upon lands not lawfully within the bounds of the district, their right or authority to-act as to these lands may be called in question by quo warranto; but a bill to enjoin the collection of the assessment is. not the proper remedy.

The decree of the circuit court will be affirmed.

Decree affirmed-


author: ; Mr. Justice Scott

text:
    The Ohio and Mississippi Railway Company v. The People ex rel. John S. Lyman.

      Filed at Springfield September 27, 1887.

    1. Fencing bailed ads—erecting a fence within the line of the right of way. The statutory requirement that railway companies shall erect a fence on “both sides of the road, ” is not complied with by constructing a fence several feet within the right of way. The statute contemplates that the fences shall embrace the entire right of way.
    2. Same—remedy to compel the building of the fence at the proper place. Where a railway company, on notice to build a fence along its right of way by the owner of the land over which the road runs, erects a fence several feet inside its right of way, and refuses to let the land owner join his fences with the same, so as to inclose his land, mandamus will lie to compel the company to erect a fence along the line of its right of way.
    3. Mandamus—when there is another remedy. Under the statute, mandamus will lie in all cases, when it affords a proper and sufficient remedy for the enforcement of a legal right or an obvious duty, the performance of which involves no discretion, without regard to whether there may be some other-adequate remedy or not.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    The petition in this ease is for a mandamus, and was exhibited in the name of the People, on the relation of John S. Lyman, against the Ohio and Mississippi Bailway Company, to compel respondent to erect a fence on the south line of its right of way, through lands owned by relator, over and upon which its track is constructed. Omitting the formal parts, the following are the principal allegations contained in the petition:
    “That the Ohio and Mississippi Bailway Company some years since constructed its railway across and over said lands of petitioner, leaving a portion thereof upon the north and ¡south of its right of way and track; that said railway company has been in operation through the county of Sangamon, •and over said land of petitioner, running its trains and engines and ears over its track through the same, for several years past; that it has not constructed fences upon the sides of its road, through petitioner’s land, as required by law; that petitioner has never waived or compromised the building of the same'by said road, but, on the contrary, several weeks since served upon said railroad company, notice in writing to. build and maintain a fence upon the south side of its road, where the same goes through said petitioner’s farm, within thirty clays from the service of said notice; that said time has long since elapsed, and said railway company has failed to comply therewith, but has neglected and refused to erect a fence upon the south side of its road, where the same crosses petitioner’s said land; but on the contrary, petitioner states to the court that said railway company, about the time said notice expired, and just when it had the material upon the ground and workmen ready to erect said fence, and in order to vex and annoy and injure said petitioner, and to evade the law with reference to its duty in the premises, demanded of petitioner that he should help pay the expenses of erecting said fence upon the side of its said road. And petitioner further states, that upon his refusal to do so, said railway company threatened, and did erect said fence ten (10) feet north of the south side of its said road, and that distance within the south line of its right of way. And petitioner further states, that said railroad company has completed said fence within the side of its road, as aforesaid, and since doing the same has cut away and removed its hedge and fence at the ends of petitioner’s said tract of land, where Said road enters and goes out at the same, and between said fence which it has so erected, as aforesaid, and petitioner’s land, thereby exposing petitioner’s said land to the trespassing of stock from the highway at one end, and the egress of petitioner’s stock upon said highway, and also exposing petitioner’s stock to said company’s track at the other end of said fence, and has forbidden petitioner from enclosing his said land upon said new fence erected by said railroad company, and forbidden his entering upon their ten feet right of way thrown out by them, as aforesaid, for the purpose of enclosing upon their said new fence. Petitioner further avers, that by an act of the legislature of Illinois, in relation to fencing and operating railroads, approved March 1,1874, in force July 1,1874, it became and was the duty of said railway company, after the service of notice, as aforesaid, by petitioner, to build said fence upon the side of its said road, to have built the same upon the line between said railway company’s right of way and petitioner’s said land, so that petitioner might have joined his fence thereto, and enclosed his said land thereon. And petitioner avers it is still the duty of said railway company to build and maintain a fence upon said line, such as required by said act, and by said notice from petitioner,—wherefore petitioner asks the aid of the court in the premises, and to that end makes said railway company defendant.”
    Bespondent filed a general demurrer to the petition, and assigned the following grounds of demurrer: First, that the . said petition does not state facts sufficient to authorize the issuing of the writ of mandamus, as prayed for; second, that the right sought to be enforced is created by statute, and the statute provides an adequate remedy, which is exclusive. The demurrer was overruled, and on respondent electing to stand by its demurrer, the court rendered judgment, awarding a peremptory mandamus to issue, as prayed for in the petition. That judgment was afterwards affirmed in the Appellate Court , for the Third District, and respondent asked for and was allowed an appeal to the Supreme Court, which it afterwards perfected by giving the usual bond.

      Messrs. Pollard & Werner, and Messrs. Matheny & Matheny, for the appellant:

      Mandamus is not a writ of right, and its propriety must be clear and indubitable. Supervisors v. People, 110 Ill. 577; People v. Johnson, 100 id. 537; Comrs. of Highways v. People, 99 id. 587; People v. Davis, 93 id. 133; People v. Village of Crotty, id. 133; People v. Ketchum, 72 id. 212; St. Clair County v. People, 85 id. 396.
    The statute gives a remedy which is exclusive. Rev. Stat. chap. 114, see. 66; Sedgwick on Stat. and Const. Law, (ed. of 1857,) secs. 93, 94; Parish of St. Pancras v. Batterbury, 2 Com. Bench, (N. S.) 477; Gedney v. Inhabitants of Tewksbury, 3 Mass. 307; Smith v. Drew, 5 id. 516; Glass Co. v. White, 14 id. 286; Turnpike Co. v. Gould, 6 id. 44; City of Boston v. Shaw, 1 Metc. 130 ; Crosby v. Bennett, 7 id. 17; The Headlight, Chase’s Dec. 150; Bangor House v. Hinckley, 3 Fairf. 388; Dudley v. Mayhew, 3 N. Y. 9; Stafford v. Ingersoll, 3 Hill, 38; Almy v. Harris, 5 Johns. 175; Renwick v. Harris, 7 Hill, 575; Green v. Bailey, 3 N. H. 33; Bassett v. Carleton, 32 Me. 553; Smith v. Lockwood, 13 Barb. 209; First National Bank v. Lamb, 57 id. 429; Cole v. City of Muscatine, 14 Iowa, 296; Moore v. White, 45 Mo. 206; Confrey v. Stark, 73 Ill. 187.
    The fence is not required for the benefit of the land owner, but for the protection of stock and to avoid danger to the lives of passengers. The constitutionality of the statutes requiring fencing of roads is upheld only as police regulations, designed for the protection of the lives and property of the traveling public. Railroad Co. v. McClelland, 25 Ill. 140; Railroad Co. v. Crawford, id. 529; Railway Co. v. Duggan, 109 id. 537; Railway Co. v. Haus, 111 id. 114; Gorham v. Railroad Co. 26 Mo. 441; Clark v. Railroad Co. 35 id. 203; Railroad Co. v. Tilton, 12 Ind. 3; Railroad Co. v. Maiden, id. 10; Railroad Co. v. Parker, 29 id. 471; Railroad Co. v. Mower, 16 Kan. 573; Blair v. Railroad Co. 20 Wis. 254; Nelson v. Railroad

      Co. 20 Vt. 717; Gilmore v. Railroad Co. 60 Me. 23; Blair v. Railroad Co. 20 Wis. 254; Wharton on Negligence, sec. 881.
    In several cases the courts have refused to treat (as might be expected, from the foregoing decisions,) -these statutory railroad fences as partition fences. Railroad Co. v. Crossley, 36 Ind. 370; Corwin v. Railroad Co. 13 N. Y. 53; Railroad Co. v. McComachie, 3 Edw. Ch. 486.
    Messrs. Connolly & Mather, for the appellee:
    The statute requiring railway companies to fence the sides of their roads is construed to mean on the dividing line between the right of way and the adjoining land. Railway Co. v. Zeigler, 108 Ill. 305.
    The adjoining proprietors have an interest in the fencing of the right of way. Rutledge v. Railroad Co. 78 Mo. 290; Berry v. Railroad Co. 65 id. 175; Morse v. Railroad Co. 27 Vt. 23; Chapin v. Railroad Co. 39 N. H. 53; Rickets v. Railway Co. 12 Eng. L. and Eq. 520; Brooks v. Railroad Co. 13 Barb. 594; Stanley v. Railroad Co. 84 Mo. 631; Railway Co. v. Duggan, 109 Ill. 540; Eames v. Railroad Co. 98 Mass. 560; Trice v. Railroad Co. 49 Mo. 438.
    The writ of mandamus will not be denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy. Starr & Curtis’ Stat. chap. 87, sec. 9; People v. Village of Crotty, 93 Ill. 180 ; Lower v. United States, 91 U. S. 536; East St. Louis v. Millard, 14 Bradw. 483.
    The duty to build or maintain fences, when imposed by statute, may he enforced, by mandamus or otherwise. Jones v. Seligman, 81 N. Y. 191; Pierce on Railroads, 409; People V. Railroad Co. 14 Hun, 371; 76 N. Y. 294; Waderman v. Railroad Co. 51 id. 568.

      Mandamus lies to enforce a legal duty against private corporations, such as railroads, on the relation of private persons. Railroad Co. v. People, 56 Ill. 384.
   ; Mr. Justice Scott

delivered the opinion of the Court:

Section 1 of the act of the General Assembly in relation to “fencing and operating railroads,” in force July 1, 1874, provides “that every railroad corporation shall, within six months after any pai;t of its line is open for use, erect, and thereafter maintain, fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, etc., with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation, when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad. ”

Two questions are made on this record: First, whether, under the provisions of the statute cited, it is the duty of the railroad company to construct a line of fence on the south line of its right of way, where the same passes over and through the lands owned by the relator; and second, can respondent be compelled to perform its statutory duty in that regard, by mandamus. These questions will be considered briefly in the order stated.

It is not denied by the respondent the statute imposes the duty to erect and maintain a fence on both sides of its road, suitable and sufficient to prevent stock from getting upon its railroad. Indeed, that duty was expressly recognized in this case, for when the company was notified by the relator to build, a fence on the south line of its road, where the same passes over and through his lands, it did construct a fence on its right of way ten feet north of the south line of its right of way. The question now is, whether a railroad company, in complying with the statute in question, may build a fence required thereby, anywhere on its right of way except on the line between its right of way and the adjoining owner’s land, or, what is the same thing, is the fence now constructed, after notice given, ten feet within and upon its right of way, and that distance from the adjoining owner’s land, a compliance with the provisions of the statute in regard to fencing railroads ? It is thought it is not. The statute is so plain in this regard, it seems idle to attempt to construe it. It makes it the duty of the company to erect a fence on “both sides of the road, ”— that is, so as to embrace the right of way; and so this court has held in Wabash, St. Louis and Pacific Railway Co. v. Zeigler, 108 Ill. 304. In that case it was decided a fence built two feet inside of the right of way was not constructed in conformity with the statute. The suggestion the “sides of its road” may mean the mere “track” upon which trains are moved, is too absurd to be seriously considered.

The second point presents some difficulty, and is not altogether free from doubt. The insistence is, as the statute which imposes the duty upon a railway company to erect fences on the “sides of its road,” gives the adjoining land owner the privilege, on the failure of the company, after notice, to construct the fence himself, and recover double its value, with interest, that the remedy so provided is exclusive. It is doubtful whether the adjoining land owner, under the facts in this case, as they appear on demurrer to the petition, would have the right or privilege to construct a fence on the south line of respondent’s right of way. It is seen the company, in compliance with the notice given, did construct a fence on its right of way. The complaint is not that the company did not erect a fence when notified to do so, but that it did not erect it on the south side of its right of way, as it was its duty to do. The statute does not contemplate there may be two fences erected on the right of way on the same side of the track. That would render it difficult, if not impracticable, C? for the adjoining land owner to have the privilege of a farm crossing the statute declares he may have, and which is necessary in this ease, as the relator’s land lies on both sides of the right of way. The remedy given the land owner to erect a fence, and recover for it under the statute, does not seem to be applicable, and it would seem the only remedy left the land -owner, under the facts of this ease, is to compel the company to perform the duty it has undertaken, in compliance with the provisions of the statute. That can only be done by mandamus, •and such is an appropriate remedy. Had the company refused to erect a fence after notice, then, and not till then, the ■contingency would have arisen in which the land owner might have erected the fence and recovered the statutory penalty. But that it did not do, and it would seem to follow, the most ■complete, if not the only, remedy, the land owner would have, would be to compel respondent, by mandamus, to erect the fence required by the statute, in the manner it contemplates shall be done, viz., on the south line of its right of way. Placing the fence where it is according to the allegations of ihe petition, which, of course, the demurrer admits to be true, is mere captious conduct to avoid a plain and obvious statutory duty, which the law will not tolerate. To permit such ■conduct would be to allow the corporation, by a mere trick, to defeat the statutory rights of the adjoining land owner. ■Corporations, like individuals, ought to observe good neighborship, and if they will not voluntarily square their conduct .to such a rule, they should be compelled to do so.

But there is another view that may be taken. Section 9 of the “Act to revise the law in relation to mandamus, ” (Rev. Stat. 1874,) provides: “The writ of mandamus shall not be denied because the petitioner may have another specific legal remedy, when such writ will afford a proper and sufficient remedy. ” Under this statute, it has been held by this court, and the Supreme Court of the United States, the inquiry whether there may be another or even a better mode of redress than one asked for, does not arise, and so the rule is now well settled that mandamus will lie in all cases where it affords a proper and sufficient remedy for the enforcement of a legal right or an ■obvious duty, the performance of which involves the exercise ■of no discretion, without regard to whether there may be some ■other adequate remedy or not. (People v. Village of Crotty, 93 Ill. 180; Lower v. United States, 91 U. S. 536.) Here, it was the plain duty of respondent, when it undertook to build the fence in compliance with the statute, after notice, to build on the line between its right of way and the land of relator. In no other way could it comply with the statute, and mandamus is an appropriate remedy to compel the performance of the legal duty in that respect.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Asahel Gage v. John Arndt.

      Filed at Ottawa September 26, 1887.

    1. Cloud upon title—requisites of the bill—to show time of owner■ship, as against a tax sale. A bill to set aside tax deeds as clouds on title, showed that the complainant was in possession of the premises, but failed to show when he became the owner thereof, and the evidence also failed to show the fact: Held, that in the absence of both averment and proof, it would be -presumed, as against the pleader, that the complainant or his grantors were ■■the owners of the premises at the time the taxes for which the sales were añade, accrued.
    2. Costs—on bill to set aside a tax deed as a cloud upon title. Where -the owner of a lot permits the same to go to sale for taxes, it will be error, on bill to set aside the tax deed, to require the defendant to pay the costs, where -there has been no tender to him of the sums paid by him, with interest, etc. Ah offer to pay to an unnamed agent, who is not shown to have had any authority to bind his principal by his refusal to accept the tender, will not be ■sufficient to charge the latter with the costs.
    3. Chancery—statement of account by master—requisites as to detail. Where a cause is referred to a master to take and state an account of the sums due the defendant from the complainant, for taxes, interest, penalties and costs growing out of tax sales sought to be set aside, the master should state his account in detail, by items, times, rates, etc., and show the items claimed. as well as those allowed. It is not sufficient, on such a reference, to report the testimony en masse, and the amounts in the aggregate, with no reference-to items claimed and disallowed.
    Writ op Error to the Superior Court of Cook county; the-Hon. George Gardner, Judge, presiding.
    John Arndt,, claiming to be the owner in fee and in the-actual possession of sub-lot 11, in the subdivision of lots 11, 12, 13 and 14, in block 56, in canal trustees’ subdivision of blocks in the north-west quarter of section 21, township 39, north of range 14, east of the third principal meridian, in. Cook county, by his original and amended bills, exhibited in. the Superior Court of Cook county, against Asahel Gage, sought to have set aside as clouds upon his title, and to be-delivered up and cancelled, two tax deeds to the premises, issued to the defendant, and of record in Cook county. The-grounds upon which this relief was asked, as appears from the amended bill, were, that as to a tax deed issued to the-defendant July 12,1876, upon a tax sale made September 18, 1873, and which was filed for record July 27,1876, the same-was procured upon fraudulent and defective affidavits, and in disregard of the provisions of the constitution and of chapter-120 of the Eevised Statutes; that notice of the purchase was not served on the persons in the actual possession of the-premises, nor in whose name the premises were taxed, nor yet the owners of or the persons interested in the premises, three months before the time of redemption expired, and that-complainant had no notice of the tax sale or issuing of the tax deed, etc.; and as to the tax deed issued to defendant July-16, 1879, upon a tax sale made October 14, 1876, and which was filed for record July 19, 1879, the same was procured upon fraudulent and defective affidavits, and in disregard of the provisions of the constitution and chapter 120 of theEevised Statutes; that complainant had no notice of the tax sale, or the issuing of the tax deed, etc.; that there was no-assignment of the certificate of purchase by the purchaser at the tax sale, to the defendant; that notice of the purchase was not served on the persons in possession or occupancy of the premises, nor in whose name the premises were taxed, nor yet the owners or persons interested in the premises, three months before the time of redemption expired; arid finally, that both tax deeds were informal, but in what respect was not stated, and that they were issued more than one year after the time of redemption had expired, and that eomplain•ant demanded a quitclaim from the defendant, and offered to pay the taxes he had paid, with full penalties allowed by law, which the defendant refused.
    By the answer, the ownership and title to the premises of the complainant were denied; also, denying complainant’s possession when the suit was brought; admits that defendant ■claims title to and ownership of the premises by the two tax deeds set out in the bill; and as to the remaining averments of the bill, they were generally and specifically denied; ■and finally, that the bill contains no offer of equity to the •defendant; that it does not show that the complainant was in possession of the-premises, or was the owner, or interested therein, or that the premises were listed in the name of complainant at the time notice was required to be given as to the time redemption "would expire; and claiming, under the .answer, like advantage as under a deinurrer.
    The cause was heard on the bill, answer, replication, and proofs taken, and decree rendered, finding the allegations of the bill to be true, as stated, and that the equities were with the complainant, and referring the cause to the master, to take and state an account of the sums due the defendant from the complainant, for taxes, interest, penalties and costs, as prescribed by law, upon an indebtedness created by tax sale and tax deeds of conveyance; and as to the sum so paid and reported by the master, the complainant was decreed to pay the same into court within thirty days after confirmation of report; and further decreeing, that on such payment being made, the defendant should surrender and deliver to the clerk of the court, to be by him cancelled, the two tax deeds, and that the defendant surrender "the possession of the premises to the complainant, clear of all incumbrances, etc., and upon the failure of the complainant to pay said sum in the time, etc., the bill should be dismissed.
    The master reported the testimony offered before him, that there was due the defendant $80.32, and also his findings and conclusion upon the merits of the whole case. The court overruled defendant’s exceptions to the master’s report, ordered complainant to pay defendant $80.32 in thirty days, decreed that the tax deeds were void as against complainant, and that they be delivered up and cancelled, and that defendant pay the costs.
    Mr. Augustus N. Gage, for the plaintiff in error.
   Per Curiam :

Although the bill in this case contains no averment as to the time when the defendant in error (complainant below) became the owner of the premises, and the evidence in the record is silent in respect thereto, in the absence of both averment and proof it must be presumed, as against the pleader, that the complainant in the bill or his grantors were the owners of the premises at the time the several years’ taxes upon the premises (and for failure to pay which the tax sales were made which formed the basis of the outstanding tax titles relied on by the plaintiff in error) accrued, and under the law it was his or their duty to have paid the same. The owner did not pay, but twice permitted the premises to be sold for taxes—the last time for the accumulated taxes of three years. At the first sale the plaintiff in error became the purchaser, and under the second, became the assignee of the purchaser; and the evidence also shows that he also paid the taxes upon the premises for some of the years subsequent to the second sale. To permit the party claiming to be the owner, under such circumstances, on bill to remove-tax deeds as clouds upon his title, to have this equitable relief, and at the same time to cast the tax-purchaser in the costs, is clearly inequitable, and in direct conflict with the ruling announced in Gage v. Busse, 102 Ill. 592. And this is so, notwithstanding the averment in the bill (expressly denied in the answer) that the defendant in error had offered to pay to the plaintiff in error the taxes the latter had paid, with interest and penalties. That offer, as the bill shows, if made at all, was made, not to the plaintiff in error himself, but to some one (whom the bill does not disclose,) said to be an agent of plaintiff in error. It is neither averred nor proved that this nameless agent was such an agent of the plaintiff in error as that his refusal would bind the principal, and there is nopretence that the plaintiff in error had actual notice of this-offer. If the defendant in error desired to place the plaintiff in error in the wrong, as a basis of equitable relief, the offer should have been made in the character of a tender, and that tender should have been kept good by bringing the money into court, or, according to the practice in chancery, by offering to do so in the bill. The bill contained no offer of this character, and it was error to decree costs against the defendant in that proceeding.

As this cause must be remanded, we ought, perhaps, to notice some of the other objections insisted upon.

Various exceptions were taken to the master’s report,—and first, as to the amount decreed to be paid by defendant in error. By the terms of the decree, the complainant was required to pay to the defendant $80.32, “which amount appears due the defendant from the complainant, for taxés, interest, penalties and costs arising under the tax sales and tax deeds of conveyance, ”—that being the amount found and reported by the master on the special reference. And it was objected that the master had not stated the account in such way that it could be ascertained what mode of computation he adopted, or how he reached the result stated, and, also, .that he had not allowed to the plaintiff in error the money paid by him at the several tax sales, with interest, penalties and costs, or the amounts of subsequent taxes paid by him, with interest. An inspection of the report shows this exception was well taken. The master made no pretence of stating an account of the payments made by the plaintiff in error “for taxes, interest, penalties and costs, ” as he was by the decree directed. What he did, was to report the testimony presented before him, documentary and oral, and find there was due the plaintiff in error, under the sale of September, 1873, $3.96; under the sale of October, 1876, $74.78; and under special assessment of August, 1877, $1.58. What part, if any, of these several amounts was certainly for taxes, and for interest, and for penalties, and for costs, does not appear. The very object of a reference to state an account is defeated by the course adopted by the master in this case, and instead of aiding the court, is well calculated to produce just such a case of doubt and uncertainty as is here observed. The master should state his account in detail, by itepis, times, rates, etc., and show the items claimed and disallowed, as well as the items allowed. Then, on exception, the attention of the court need only be directed to the items, times, rates, etc., to which exception is made. It is not enough, in this character of case, and under such a specific order of reference, to report the testimony en masse, and the amounts in the aggregate, with no reference to items claimed and disallowed, as was here done. Brockman v. Aulger, 12 Ill. 277; Craig v. McKinney, 72 id. 305.

In the view here taken, it will be unnecessary to pass upon the other errors assigned.

The decree of the Superior Court will be reversed, and the cause remanded to that court for further proceedings.

Decree reversed.


author: 'Mr. Justice Mulkey

text:
    Charles F. Huston v. The People of the State of Illinois.

      Filed at Springfield September 27, 1887.

    1. Bare—failure to malte resistance, through intimidation and threats. On a prosecution for rape, the defence asked the court to instruct the jury that unless they found, from the evidence, that the prosecutrix, at the time of the alleged assault, used all the force and resistance in her power to prevent the accomplishment of the act, they should find the defendant not guilty, or ■at least should take such fact into consideration in passing upon the question of his guilt. The instruction was objectionable, and was properly refused, because it did not negative the hypothesis that the failure of the prosecutrix to make the requisite resistance was caused by the threats and intimidation ■of the accused, there being evidence tending to prove such hypothesis.
    2. New trial—on the evidence. Where the evidence on the trial of one for a rape is conflicting, the accused admitting the carnal intercourse, but denying it was against the will of the prosecutrix, and each is somewhat corroborated, and the trial court sustains a conviction by refusing a new trial, •this court will not reverse the judgment of conviction.
    3. Instructions—repeating. This court will not reverse a judgment ■of conviction in a criminal case for the refusal to give instructions on the part of the defendant that might properly have been given, where the principles announced in them are sufficiently covered by other instructions given for him.
    Writ of Error to the Circuit Court of Macon county; the Hon. James E. Hughes, Judge, presiding.
    Messrs. Blinn & Hoblitt, for the plaintiff in error:
    The evidence in this case does not sustain the verdict, and "the verdict should be set aside for want of evidence to support it.
    Under the statute of this State, before the crime of rape ■exists there must have been offered by the woman all the resistance within her power, under the circumstances connected with the assault. People v. Dohring, 59 N. Y. 374; Don Morgan v. People, 25 Mich. 356; Roscoe’s Crim. Evidence, (6th Am. ed.) 806; 1 East’s P. C. 443, sec. 7; 18 Viner’s Abr. “Rape, ” PI. 11; People v. Abbott, 19 Wend. 192; People v. Quinn, 50 Barb. 128; Reynolds v. People, 31 How. Pr. 179; People v. Bransby, 32 N. Y. 525; People v. Hulse, 3 Hill, 309; Cropwell v. People, 13 Mich. 427; Crogan v. State, 22 Wis. 424; State v. Cross, 12 Iowa, 66; Austine v. People, 110 Ill. 248.
    It was a right of defendant on trial to have the law applying to the facts of his case accurately given to the jury. The circuit court had no right to refuse to give an instruction that contained a correct statement of the law applicable to the; facts of the case.
    Mr. Edward P. Vail, State’s Attorney, for the People.
   'Mr. Justice Mulkey

delivered the opinion of the Court:

At the June term, 1886, of the Macon circuit court, Charles: F. Huston was tried and convicted on a charge of rape upon the person of his sister-in-law, Melissa M. Conway, the jury fixing the term of his confinement in the penitentiary at two-years. The court formally sentenced him in pursuance of' the verdict, and the record of the conviction is now before us., for review.

The prosecutrix, at the time of the alleged offence, was temporarily staying in the family of the defendant, to do-housework and wait on her sister, who had recently been; confined in child-birth. At the time of the occurrence, which was on the 24th of July, 1885, the prosecutrix was under sixteen years bf age.

The case, upon the admitted facts, is brought within a. very narrow compass. That the defendant had criminal intercourse with the prosecutrix at the time and place charged by her, is admitted by him; but he claims it was done with her consent, while she, on the other hand, swears it was done-forcibly, and against her will. He also testifies to having had. criminal intercourse with her on two other different occasions ; hut this is positively denied by her. Thus, it will be perceived, the case, as submitted to the jury, presented for their determination a sharp issue of fact,—namely, whether the defendant committed the act forcibly, and against the will of the prosecutrix, or with her consent. The other evidence in the case, whether on the one side or the other, is important only in so far as it may directly or indirectly bear upon this issue.

There is corroborative evidence in the record having more or less force on both sides of this issue. That which is the most favorable to the accused is the admitted fact that the prosecutrix remained in the house of the defendant about two weeks after the affair, without saying anything to her sister, or anyone else, about it, and that even after she went home she made no complaint until the first of the following February, when she, for the first time, informed her mother of what had. occurred. In explanation of this delay in making complaint, she says, in her testimony: “I never told anybody about this matter until February, 1886. The reason I did not tell father and mother when I got home, was, I was afraid it would be worse than it was then. I was also afraid of Charles Huston. * * * I was afraid of him up to the time I told it, and continued to be afraid df him afterwards. ” It further appears, from her testimony, that the assault upon her brought on a spell of flooding, which continued about three weeks, and that she was so lacerated and torn that she finally had to consult a physician. In these statements she is corroborated by medical and other testimony.

It is claimed by counsel for the accused, that the account given of the affair by her, is too unreasonable to justify a conviction. It may be admitted that some of the details of her story are unreasonable, and still we are unable to say that the substance of it is so to such a degree as to justify us in reversing the case on that ground. The great question before the jury was, whether the alleged criminal assault was a mere fabrication on her part. As to the manner or details ■of the assault, assuming it to have been made, she might 'well, by reason of the terror and excitement of the moment, 3iave conceived erroneous impressions as to just how the criminal act was accomplished, but the fact of the assault itself is something about which she could not be mistaken. All this was matter for the jury, who had the witnesses before them, heard their testimony, observed their bearing and conduct on the stand, and they, by their verdict, sustain her as to the fact of the assault. The circuit judge who tried the case, in overruling the defendant’s motion for a new trial, has said he is satisfied with the jury’s finding, and we are not prepared to say that it is wrong.

It is also complained that the court refused to give to the' jury proper instructions on behalf of the accused. We do not think there is any substantial foundation for this claim. Several of the refused instructions might properly have been given, but the principles announced in them are sufficiently covered by other instructions given by the court. Such as are not, we think were properly refused, particularly those to which the argument of counsel is chiefly devoted, and which are pressed upon the attention of the court with great pertinacity. Without taking up these instructions and considering them in detail, it is sufficient to say, that conceding, for the purposes of the argument, merely, that the principle announced in them might, under special circumstances, be properly applied in a prosecution for rape, still we think the court ruled correctly in the present case, because, under the evidence, they were clearly calculated to mislead the jury.

The instructions in question, in varying phraseology, told the jury, in substance, that unless they found, from the evidence, that the prosecutrix, at the time of the assault, used all the force and resistance in her power to prevent the accomplishment of the act, they should find the defendant not guilty, or at least should take such fact into consideration in passing upon the question of his guilt. These instructions were all objectionable, because they did not negative the hypothesis that the prosecutrix’s failure to make the requisite resistance was caused by the threats and intimidation of the accused, there being evidence tending to prove that hypothesis. Thus, she swears that he threw her down, commanding her with an oath to keep still, saying, that if she would do so he would not hurt her, but that if she told it, it would not be good for her. Such language as this, coming from one bearing the relation he did to her and her family, was, in view of her youth and consequent inexperience, well calculated to inspire fear and serious apprehension for her personal safety in the event she offered any serious opposition to the consummation of his purpose. The instructions utterly ignore this aspect of the case, and were, consequently, as drawn, well calculated to mislead the jury, and for that reason, if for no other, should have been, as they were, refused. The instructions given on behalf, of the accused, fairly presented the case to the jury. They were told, that if, upon consideration of all the evidence in the case, they were not satisfied, beyond a reasonable doubt, that the defendant had criminal intercourse with the prosecutrix, forcibly and against her will, they should find him not guilty, and that until thus proven guilty the law presumed him innocent.

Upon the whole, we think the accused has no cause to complain of the rulings of the court below, and the jury having, found against him upon the facts, the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    The New York and Chicago Grain and Stock Exchange v. William H. Gleason.

      Filed at Ottawa September 26, 1887.

    1. c Taxation—duty of corporation to list its property. The law makes it the duty of a private corporation, by its “president, or proper agent or officer, ” to furnish the assessor a schedule of its property subject to taxation, under oath, when called on for that purpose by the assessor.
    2. Same—duty and powers of assessor, in the matter of assessment and valuation. The law does not make it the duty of the assessor to examine a tax-payer under oath, as to his or its taxable property, upon his or its failure to make a schedule thereof. Where a schedule has been presented to the assessor, duly verified by the person listing the property, if the assessor shall be of opinion that the person listing property for himself or for another person, company or corporation, has not made a full and fair schedule of such property, he may examine such person under oath, in regard to the property he is required to schedule.
    3. The duty cast upon the assessor; by law, to assess the property within his town at its fair cash value, is entirely independent of anything the property owner-may or may not do.
    4. The fact that an assessor is told, when he calls on a corporation for a schedule of its taxable property, that the corporation has no credits or cash capital, and that its only personal property is its office furniture and fixtures, is not such notice as takes from the assessor the power or relieves him from the duty, in cases where no sworn schedule is presented to him, of listing and assessing the property of the corporation “according to his best judgment and information. ”
    5. An assessor notified a corporation that he had valued its taxable property at $10,000, and that if this was not satisfactory, to call and schedule the same within one day. The corporation sent its agent, who did not furnish a schedule, but signed a petition to the town board of review, praying for a review and reduction of the assessment, which board reduced the assessment to $5000. No application was made to the county board for any further reduction: Held, that there was no fraudulent assessment, even if the assessor did promise to, reduce the assessment.
    6. Same—over-assessment, or over-valuation—remedy. If a party feels himself aggrieved by an over-assessment of his property for taxation, his remedy is by appeal to the township board of review, in the first instance, and if not satisfied with the action of that board, then by applying to the county board at its July meeting, whose power to correct assessments is ample, and if he fails to avail of these remedies, he must bear the consequences of any over-valuation and assessment of his property. A court of equity can afford Mm no relief.
    7. Same—when equity will enjoin. The general doctrine of this court is, that a court of equity will not entertain a bill to restrain the collection of a tax, except in eases where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate.
    Writ oe Error to the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    Plaintiff in error is a corporation organized under the laws of this State, for the purpose of Buying and selling grain, provisions and stocks on commission in Chicago, with a capital stock of $300,000, divided into three thousand shares. Its personal property was assessed by the assessor of the town of South Chicago, for 1885, at $10,000, and it was so notified by the assessor. " It then petitioned the town board, complaining that the assessment was too high, stating in its petition that it was a corporation, but had no paid up capital; that it did a commission business, using its customers’ money to margin all deals made for their account; that it had expended $1300 in furnishing and fitting its office, and stated that it should be assessed only on the value of its office fixtures, and prayéd the review and correction of the assessment. Acting on the petition, the town board reviéwed and reduced the assessment to $5000, which, however, was raised by the State Board of Equalization to $6000, upon which a tax of $322.62 was extended.
    Plaintiff in error reported to the State Board of Equalization, as required by law, the amount of its capital stock, number of shares, capital stock paid up, value of its stock, etc., wherein it represented that no part of its capital stock had been paid up; that its stock had no value; that its indebtedness amounted to $25,000, occasioned by losses in business since May 1, 1885, and that the value of its tangible property was $1300, and the State Board of Equalization assessed its stock and franchise at $7000, upon which a tax of $376.39 was extended.
    After the tax warrant had come to the hands of defendant in error, as collector of taxes, plaintiff in error exhibited its bill" in the Superior Court of Cook county against such collector, to enjoin the collection of such taxes.
    The bill charges that the personal property of plaintiff in error was, by the town assessor, “arbitrarily and knowingly and fraudulently assessed” at five times its value. The facts disclosed as constituting the fraud, may be thus summarized : A deputy assessor called at the place of business of plaintiff in error for the purpose of making an" assessment of its taxable property, and was then told that the corporation had no credits; that it was doing only a commission business, and had no cash capital, and that the only personal property the corporation had was its office furniture and fixtures, that cost $1300, and that the deputy assessor listened to such statement without objection, and left; that after being notified by the assessor of his assessment at $10,000, it sent one of its officers to the assessor’s office to protest against the assessment ; that the officer went to the assessor’s office and protested, in the form of a written statement upon a blank furnished to him by a person in the assessor’s office, supposing such blank to be a mere form, and was there assured that the assessment would be adjusted according to such statement ; that plaintiff in error relied on such assurance, and took no further care in reference to the matter, but at the time of filing the bill it learned that the blank on which the written statement was made, was, in fact, an application to the town board to review the assessment, and which the assessor himself presented to the town board, and, on his representation, the assessment, at §5000, was confirmed. Further, that plaintiff in error was always ready and willing to submit its affairs to examination by the assessor, or to answer all questions touching its property, but the assessor made no inquiries of it as to its property, or notified it of his dissatisfaction with the statement that had been made to him concerning such property. The bill further charges, that when he made the assessment the assessor knew there was no other property for him to assess, except the office furniture and fixtures, the value of which he knew, from inspection; that in making his assessment, and his representations before the town board, the assessor claimed his assessment covered cash capital as well as office furniture and fixtures, and which claim was without evidence on which to rest, and was in opposition to the statement of plaintiff in error. The bill also charged that the action of the State Board of Equalization in raising the assessment on the personal property from $5000 to $6000, and also in assessing the stock and franchise of plaintiff in error at $7000, was fraudulent, in that it was made “arbitrarily, without a single fact or item of information as a basis, ” “in utter disregard of every circumstance which can tend to indicate the values of capital stock and corporate franchises, ” knowing the same to be “grossly excessive, unjust and unequal.”
    The answer expressly denied that the assessor, on receiving the complaint of too high assessment, promised to reduce the assessment according to the statement in the complaint, but refused to do so, and averred that the assessment was not alone upon the office furniture and fixtures, but also upon the amount of necessary money employed in the business of plaintiff in error; that the business of plaintiff in error was operating what is commonly called a “bucket shop,” in Chicago, in buying and selling grain, produce, option deals, stock, etc., in which business it necessarily had on hand a considerable amount of money, and that it held itself out as financially solvent; that $5000 was a reasonable and lawful assessment of the value of the personal property of plaintiff in error, as deliberately judged by the town board of review. .It also denied that the assessor knew the only property of plaintiff in error was the office furniture and fixtures, and -denied all fraud charged against.the assessor, town board and State Board of Equalization. By stipulation, the cause was heard on bill, answer and affidavits, when the temporary injunction was dissolved and the bill dismissed.
    Messrs. Bisbee, Ahrens & Decker, for the plaintiff in error:
    A court of equity will interfere to restrain the collection of ■a tax based upon a fraudulent over-assessment, considering a fraudulent over-assessment, independent of questions of irregularity, a sufficient ground for granting relief, and treating its jurisdiction as concurrent with the statutory remedies, through town or other boards. Town of Lebanon v. Railroad Co. 77 Ill. 539; McBride v. City of Chicago, 22 id. 574; First National Bank v. Cook, 77 id. 622; Harward v. Drainage Co. 51 id. 130; Vieley v. Thompson, 44 id. 9; Lemont v. Stone Co. 98 id. 94; Insurance Co. v. Farwell, 102 id. 413; Railroad Co. v. Hodges, 113 id. 323 ; Felsenthal v. Johnson, 104 id. 21; Adsit v. Lieb, 76 id. 198 ; Pacific Hotel Co. v. Lieb, 83 id. 60`2.
    An assessment may be so grossly excessive as to imply fraud. Pacific Hotel Co. v. Lieb, 83 Ill. 602.
    An assessment which is not based upon property known to ■exist, is not such an assessment as is contemplated by the Bevenue law. Mere guess-work as to the existence of assessable property, is not a proper exercise of the official duty of the assessor, and if it turns out that no such property exists,—• no subject matter of valuation,—injury is inflicted on the taxpayer, and so the assessment becomes fraudulent. See cases ■cited, and Const, of 1870, sec. 1, art. 9.
    The personal property assessment in this case, under the principles above stated, was fraudulent.
    The appellant was guilty of no negligence in reference to correcting the assessment by methods provided by law; and qucere, whether appellant was required to go before the board to correct a fraudulent assessment. If necessary, a sufficient presentation was made.
    The action of the town hoard was no estoppel on appellant. The assessment remained fraudulent, notwithstanding the action of the town board. The bill, therefore, ought to have been sustained.
    The assessment of the capital stock and franchises of the .appellant corporation by the State Board of Equalization, had no basis of valuation. The board could hot value the stock and franchises at $7000, by any known rule of assessment. Bev. Stat. chap. 120, secs. 33, 108.
    It is not a mere valuation, but a palpable, fraudulent, overvaluation. Porter v. Railroad Co. 76 Ill. 561; Life Ins. Co. v. Pollak, 75 id. 292; Glass Co. v. McCaleb, 81 id. 556.
    Mr. John M. Hamilton, for the defendant in error:
    It was the duty of complainant, imposed by the statute, to ■schedule its property for assessment, and failing to do so, it was the duty of the assessor to assess it at such amount as he deemed proper, from such information as he could get.
    The assessor having made the assessment, and notified ■complainants of the same, it was their right, under the statute, (Revenue act, sec. 86,) to apply to the town board for a review of the assessment. This they did. The town board reviewed and decided it. After that, the complainants might have applied to the county board for a review of the assessment, under section 97 of the Revenue act. This they failed to do, and they are bound by the action of the town board.
    In the case of the New York and Chicago Grain and Stock Exchange, it made a report to the State Board of Equalization, as required by law, and when that board acted, it was bound by that action. “When the assessor and Board of Equalization have acted, their valuation can not be reviewed. It is conclusive, and the courts are powerless to hear evidence to alter, or in anywise change, the valuation. ” People v. Big Muddy Iron Co. 89 Ill. 116.
    The State Board of Equalization being composed of persons elected to assess and fix the value of such property as; has been designated by law, their valuation is conclusive and final, and the courts can not examine the mode of reasoning' or the basis adopted by them to ascertain the value of property. Life Ins. Co. v. Pollak, 75 Ill. 292.
    A court of equity is not empowered to value property for taxation, but the boards of review afford ample remedy for all errors in valuation, and they must be resorted to for relief. Railroad Co. v. Hodges, 113 Ill. 323; Preston v. Johnson, 104 id. 625; Felsenthal v. Johnson, id. 21.
    The case made on the bill, answer and affidavits, does not. show a fraudulent assessment. Darling v. Gunn, 50 Ill. 424; McConkey v. Smith, 73 id. 313; Cleghorn v. Postlewaite, 43 id, 428; National Bank v. Cook, 77 id. 622; People v. Ward, 105 id. 620.
   Mr. Justice Shops

delivered the opinion of the Court:

The bill in this case proceeds upon the theory that the-property of plaintiff in error was fraudulently assessed for taxation at too high a valuation: The assessor, by his deputy,, called upon plaintiff in error, at its place of business, for a. schedule of its property subject to taxation. The law made it the duty of the “president, or proper agent or officer, ” of this corporation, to furnish to the assessor such schedule, (Revenue act, sec. 6, clause 8,) under oath. (Ibid. sec. 24.) There is no averment that the assessor said or did anything to induce plaintiff in error not to schedule, or to prevent it from scheduling, its property, and having the same verified by the oath of the proper officer of the corporation. (Revenue act, sec. 24.) The bill avers that the plaintiff in error was. ready and willing to submit its affairs to examination by the ■assessor, and to answer all his questions touching its property ; but the law casts no such duty upon the assessor in ■cases where the property owner neglects to make the schedule required by law. When a schedule has been presented to the assessor, duly verified by the person listing the property, if “the assessor shall be of opinion that the person listing property for himself or for any other person, company or corporation, has not made a full, fair and complete schedule of such property, he may examine such person, under oath, in regard to the amount of the property he is required to schedule.” (Revenue act, sec. 26.) The law does not make it the duty of the assessor to enter upon such an inquiry in the first instance, or in any case, unless he doubts the correctness of the sworn schedule he is asked to accept. The duty cast upon the assessor to assess the property within his town at its fair ■cash value, is entirely independent of anything the property owner may or may not do.

The bill further charges that the assessor knew, when he made the assessment, that, except the office furniture and fixtures, costing $1300,—the value of which he knew from inspection,—the plaintiff in error had no other property subject to taxation. The cause was heard on the verified bill, read as an affidavit, and two affidavits,—one of Witherspoon, president, and the joint affidavit of Witherspoon and Skakel, an officer of the corporation. And this was all the proof offered by plaintiff in error. In the joint affidavit referred to, it was said, that on May 1, 1885, plaintiff in error “had no cash capital whatever, of which the said assessor, his deputies and said town board had notice.” And in the affidavit of Witherspoon it is said, that when the deputy assessor called at the place of business of plaintiff in error, he was told “that the corporation had no credits; that it was doing only a commission business, and had no cash capital, and that the only personal property the corporation had was its office furniture and fixtures, ” etc. Is this such notice as takes from the assessor the power, or relieves him from the duty, in cases where no sworn schedule is presented to him, of listing- and assessing the property of the corporation “according to-his best judgment and information?” And if he, nevertheless, in good faith, makes an assessment “according to his best judgment and information,” (Revenue act, see. 24,) is. Such assessment fraudulent if he makes a mistake and overvalues the property ? Both inquiries must be answered in the negative. The circumstances were not such as to show bad faith on the part of the assessor, and we regard the reasons assigned by him, and by the town board, for disregarding such verbal, unsworn representations, and for assuming that, from the nature of its business, plaintiff in error had and used a reasonable amount of capital in- its business, and that $5000, including the fair cash value of its furniture and fixtures, was a reasonable amount and valuation under the-circumstances, as within the reasonable exercise of that judicial discretion vested in the assessor and the town .board by the law.

It seems that after the assessor had acted in the premises, he sent the following notification to plaintiff in error, and. which was duly received by the latter, viz:

“I have valued your personal property subject to assessment, at No. 140 Monroe street, which you. are by law required to list, at the sum of $10,000. If not satisfactory, you will please call and schedule the same within one day.
Frank Drake, Assessor.

Plaintiff in error promptly sent its agent, Skakel, to the assessor’s office. As to what was there said, the evidence is conflicting, but as to what was done, there is the greatest certainty. Although by this notice plaintiff in error was invited to call and schedule its property, as required by law, and although, by its proper officer, plaintiff in error did call, it did not schedule its property. What it did, was to execute and leave with the assessor, to be by him presented at the proper time, a petition to the town board of review, wherein it was-represented that it owned the property set opposite its name considered itself aggrieved, and complained that the property thereafter described was assessed too high, for the reason it was a corporation under the laws of this State, but had no paid up capital; that it did a commission business, using its customers’ money to margin all deals made for their account; that it had rented rooms, and had expended $1300 in fixtures therefor, and should be assessed only on the value of such fixtures, and prayed a review and correction of the assessment accordingly. Notwithstanding the fact of the making- and delivery of this petition for review of assessment by the town board, the bill charges that Skakel was told by some one in the assessor’s office, that the assessment would be1 adjusted to the statement just made, and that reliance was-placed on such representation, and nothing further done in the matter. McKinnor, the deputy assessor who received the petition, swears that he was applied to at the assessor’s office by plaintiff in error to reduce the assessment, but refused so-to do, and referred plaintiff in error to the town board- for review,- and supplied it with blanks for that purpose.

We fail to perceive that in anything the assessor did or failed to do, he deceived or misled plaintiff in error. If plaintiff in error relied upon an assurance of the assessor that he would reduce the assessment to the value of the furniture and fixtures, why petition the town board to review and reduce the assessment ? The execution of the petition for review is not denied, though it is charged the agent of plaintiff in error did not know he was executing a petition. It was his duty to know the contents of the instrument he was executing. The charge and pretence that plaintiff in error, acting through its agent, did not know the contents of the paper it formally executed, in respect of so important a matter of business, can not be seriously considered.

Plaintiff in error has, in our opinion, utterly failed to show any fact or circumstance tending to impeach, for fraud, the assessment of its property as made by the assessor, and reviewed and confirmed by the town board. That its petition to the latter board was received and considered, is conclusively shown by the action of the board in reducing the assessment from $10,000 to $5000, and if plaintiff in error was dissatisfied with the action of the town board in the premises, it should have availed itself of its further legal remedy, viz, by complaint, as one aggrieved, to the following July meeting of the county board, whose power to correct matters of over-assessment was ample. (Revenue act, sec. 97.) This it did not do. Not having availed itself of its adequate legal remedy, plaintiff in error must bear the consequences of any overvaluation and assessment of its property. A court of equity could afford it no relief. Adsit v. Lieb, 76 Ill. 198; Humphrey et al. v. Nelson, 115 id. 45. See, also, Spencer et al. v. The People, 68 Ill. 510; Republic Life Ins. Co. v. Pollak et al. 75 id. 292; Porter v. Rockford, Rock Island and St.Louis Railroad Co. 76 id. 561; The People v. Big Muddy Iron Co. 89 id. 116; English v. The People, 96 id. 566; Lyle v. Jacques, 101 id. 644; Felsenthal v. Johnson, 104 id. 21.

The charge of fraud against the action of the State Board of Equalization in raising the valuation of the personal property, and in valuing for taxation the stock and franchise of plaintiff in error, is without support. The courts can not inquire into the manner in which, or the basis adopted by, the State Board of Equalization to ascertain and arrive at the value fixed on this property, or to change the valuation they may have made. Republic Life Ins. Co. v. Pollak, 75 Ill. 292.

The general doctrine of this court is, that a court of equity will not entertain a bill to restrain the collection of a tax, except in cases where the tax is unauthorized by law, or where it is assessed upon property not subject to taxation, or where the property has been fraudulently assessed at too high a rate. (Porter v. Rockford, Rock Island and St. Louis Railroad Co. supra.) The gravamen of this bill, fraud in the assessment, being unsupported by the evidence, the bill was properly dismissed.

The decree of the Superior Court of Cook county, dismiss- • ing the bill, will therefore be affirmed.

Decree affirmed.