author: Mr. Chief Justice Scott

text:
    George J. Williams v. The People of the State of Illinois.

      Filed at Ottawa November 13, 1886.

      1. Appeal—to what court—on prosecution for a misdemeanor, when validity of a statute is involved.. When the validity of a statute is involved in a prosecution for an alleged misdemeanor, an appeal lies directly from the trial court to the Supreme Court, and not to the Appellate Court.
    2. So where one was indicted for unlawfully practicing medicine and surgery without having first complied with the statute of 1877, and convicted, and the question of the constitutionality of the statute is raised, by motion" to quash the indictment and by motion in arrest of judgment, no appeal lies-to the Appellate Court, it being given by section 88 of the Practice act, as amended in 1879, directly to the Supreme Court.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Barnum, Rubens & Ames, for the appellant.
    Messrs. Campbell, Hamilton & Custer, for the People.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

At the July term, 1884, of the Criminal Court of Cook county, George J. Williams was indicted for unlawfully practicing medicine and surgery in Cook county, Illinois, without first complying with the laws of the State of Illinois regarding the practice of medicine. On the trial before a jury, defendant was found guilty. Motions for a new trial and in arrest of judgment were made and severally overruled, and the court-pronounced judgment on the verdict, and assessed a fine upon defendant in the sum of $200. On the appeal of defendant, that judgment was afterwards affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.

It would seem the appeal was inadvertently taken to the Appellate Court. It should have been, under the Practice act, as amended by the act of 1879, taken directly to the Supreme Court.

The principal question made, is as to the validity of the statute under which defendant was indicted. The motion to quash the indictment, and the motion in arrest of judgment, both raise the question of the constitutionality of the act to •regulate the practice of medicine in the State of Illinois, in force July 1, 1877. Of course, if the statute under which defendant was indicted is not valid, there could be no indictment, nor could there be any judgment rendered for a penalty for the non-compliance with its provisions.

Section 88 of the Practice act, as amended by the act of 1879, provides: “Appeals from and' writs of error to circuit courts, * * * in all criminal cases below the grade of felony, shall be taken directly to the Appellate Court, and in all criminal cases above the grade of misdemeanors, and cases in which a franchise, or the validity of a statute, or the construction of the constitution is involved, and in all cases relating to revenues, or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court.” (Session Laws 1879, p. 222.) Here the validity of a statute is directly involved, and this section of the Practice act is imperative the appeal shall be taken directly to the Supreme Court. It is apprehended it can make no difference whether the case in which the validity of the statute is involved, is a misdemeanor or a civil case, which would otherwise properly go to the Appellate Court. In either ease, the appeal must be taken to the Supreme Court directly. Whatever, if anything, that was contained in the Practice act of 1877, or any prior act, that may be thought to be inconsistent with the act of 1879, was expressly repealed by the latter act. It declares “that all laws or parts of laws in conflict with this act are hereby repealed.”

It follows, the Appellate Court should have dismissed defendant’s appeal, and because it was not done, itg judgment will be reversed, and the cause remanded, with direction to that court to dismiss the appeal.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    The Village of Hyde Park v. Franklin F. Spencer et al.

      Filed at Ottawa November 13, 1886.

    1. Drainage law—constitutionality of the act of 1885. The act of June 22, 1885, entitled “An act to vest the corporate authorities of cities and villages with power to construct, maintain and keep in repair, drains, ditches, levees, dykes and pumping works for drainage purposes, by special assessment upon the property benefited thereby,” is not unconstitutional, but is a valid law.
    2. The authority of the legislature to pass the act of 1885, relating to drainage, etc., in cities and villages, is not affected by section 9, article 9, of the constitution, but the power was conferred by the amendment to section. 31 of article 4 of that instrument, adopted in 1878.
    3. Same—powers of municipalities—and as to the selection of the mode and instrumentalities for the exercise of those powers. The act of .June 22, 1885, vests the corporate authorities of cities and villages with power to construct and maintain such drains and pumping works as are necessary for the purpose of draining lands within their corporate limits.
    4. The legislature, in the exercise of the power conferred upon it by the constitutional amendment of 1878, is not restricted to the mode prescribed by the drainage acts of 1879, nor to the agencies and instrumentalities designated in those acts. The authorities of cities and villages may be made drainage commissioners, and empowered to determine what portion of the lands within such cities or villages shall be drained.
    5. Same—formation of drainage district—in cities and villages. Where city or village authorities have determined that a particular portion of the lands within the corporate limits needs draining, and have set the same apart, by ordinance or otherwise, as the district to be drained, they will have thereby virtually organized a drainage district. In such ease, no preliminary petition for the organization of the district by the owners of property is necessary.
    6. Ordinance—for local public improvements—sufficiency of ordinance as to the nature and description of improvement. An ordinance for the-making of a local public improvement by a city or village, to be paid for by special assessments, which fails to specify the nature, character, locality and. description of the proposed improvement with sufficient certainty, is defective,, and special assessments based thereon will be invalid.
    7. Provisions in an ordinance for the construction of a sewer and pumping works in a village, that the wells or basins should be located upon a certain lot, “or upon some other suitable lot in the immediate vicinity of the one described;” that the lot described, or “some other suitable lot” in the same-vicinity, etc., be purchased, and that there be erected suitable buildings, consisting of an engine-room, etc., “substantially as the same is delineated upon plans on file in the office of the village engineer, ” are all objectionable, in failing to comply with the requirements of section 19, article 9, chapter 24, of the Revised Statutes.
    8. Such an ordinance is further defective if it does not specify, with sufficient definiteness and certainty, the location of the man-holes and mantraps, and fails to give any specifications from which the cost of the pumping engines and boilers, and their foundations, can be estimated.
    9. Municipal corporation — mode of acquiring real estate. The-trustees of a village have no power to acquire a lot on which to locate buildings and pumping works for drainage purposes, except by proceedings to condemn, as provided in sections 3 and 4, article 9, chapter 24, of the Revised Statutes.
    Appeal from the County Court of Cook county; the Hon. Richard Prendbrgast, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    The act of 1885 is constitutional in its provisions as to maintenance and repair by special assessments. White v. People, 94 Ill. 604; Blake v. People, 109 id. 504; Owners of Land v. People, 113 id. 296; Enos v. Springfield, id. 65; Falch v. People, 99 id. 137; Kilgour v. Drainage Comrs. 111 id. 342; Dillon on Mun. Corp. (3d ed.) sec. 617.
    The maintenance and repair of local improvements by special assessments may be authorized by law. Cooley on Taxation, 419, 420; McCormac v. Patchin, 53 Mo. 33; Wil

      lard v. Presbury, 14 Wall. 676; Williams v. Detroit, 2 Mich. 560; Bradley v. McAtee, 7 Bush, 667; Cone v. Hartford, 28 Conn. 363; Williams v. Cammack, 27 Miss. 209; Alcorn v. Homer, 38 id. 652.
    No limit is set to the kind of local improvements that the legislature may authorize.
    The cases holding that a local tax must not be against the will of the people, has no application to indebtedness to be paid by special assessment. Craw v. City of Tolono, 96 Ill. 255; Owners of Land v. People, 113 id. 296.
    Authority for the passage of the act may be found in section 31, article 4, of the constitution. See, in this connection, Blake v. People, 109 Ill. 505.
    The ordinance is legal and sufficient in all respects. Levy v. Chicago, 113 Ill. 650; People v. Sherman, 83 id. 165.
    Mr. Franklin P. Simons, and Messrs. Doolittle & McKey, for part of the appellees:
    The legislature has no power to authorize the levying of special assessments to maintain or keep in repair public improvements. Const. 1870, art. 9, sec. 9.
    The amendment of the constitution, in respect to drainage, was not intended to embrace cities, towns and villages. That amendment recognizes the right of the People to form the district, to select their officers, or in some manner consent to and approve the body assessing them. Updike v. Wright, 81 Ill. 49; Harward v. St. Clair Drainage Co. 51 id. 130.
    That power to make an improvement does not include power to maintain it by special assessment, see Board of Water Comrs. v. Conkling, 113 Ill. 341.
    Ordinances for public improvements by special assessments must specify the nature, character, locality and, description of the improvement, including the material. Hurd’s Stat. 1885, chap. 24, see. 134; Levy v. Chicago, 113 Ill. 650.

      Messrs. Goudy & Green, also for the appellees.
    Mr. Edward Eoby, also for part of the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court:

In December, 1885, the village of Hyde Park passed an ordinance providing for the construction of a sewer and pumping works on Sixty-third street, together with an outlet pipe, and for the maintenance and repair of the same. Section 1 provides that a brick sewer shall be constructed in Sixty-third street, to be connected with wells or basins, to be located on a lot or parcel of land (describing it), or upon some other suitable lot in the immediate vicinity of the one above described; that forty man-holes shall be built upon said sewer, upon such points as the engineer in charge may direct; that thirty-two catch-basins shall be constructed, and connected with said sewer with nine-inch vitrified tile-pipe, located at such points on the curb line of said street as the engineer in charge may direct; that a lot or parcel of land be purchased for .the location of suitable buildings and pumping works for drainage purposes, described as follows, (describing it,) or that some other suitable lot in the immediate vicinity of the lot above described, be purchased, as aforesaid; that upon the lot to be purchased as above, there be erected suitable buildings, consisting of an engine-room, boiler-room and coal-room, and stack, substantially as the same is delineated upon plans on file in the office of the village engineer; that suitable pumping engines and boilers be purchased, and erected upon suitable foundations inside of the said buildings, connected by wells or basins, into which the Sixty-third street sewer, heretofore described, shall discharge; that a cast-iron pipe be laid from said pumps along Sixty-third street, Stony Island avenue and Fifty-sixth street, to Lake Michigan; that a sufficient sum be levied and collected for maintaining the pumping works contemplated by this ordinance, and for keeping the same in repair for the term of one year from the completion of the same. Section 2 provides, that the cost and expenses of the improvement shall be defrayed by special assessment to be made in accordance with sections 18 to 51 inclusive in article 9 of “An act to provide for the incorporation of cities and villages,” approved April 10, 1872. Section 3 appoints commissioners to make an estimate of the cost. Section 4 provides, that, for the purpose of the improvement aforesaid, the territory, lying within the following boundary lines, is hereby declared to be a drainage district, (describing it,) “the said proposed improvement being deemed adequate only to the proper drainage of the territory aforesaid.”

The commissioners, appointed by the ordinance to estimate the cost of the proposed improvement, made their report to the board of trustees, and estimated the total cost at $116,000, composed of the following items:

Cost of main sewer, with wells, man-holes, catch-
basins, house connections, slants, etc. - - $44,000
Cost of land ------- 2,600
Cost of engine building, etc. ... - 10,000
Cost of engines and boilers ... - 30,000
Cost of cast-iron outlet pipe ... - 23,000
Cost of one year’s maintenance of said pumping
works........4,000
Cost of making and levying and collecting the assessment ------- 2,400
Total cost, as estimated ... $116,000

The report was adopted by the board, and, by its order, a petition was filed in the county court of Cook county, on December 23,1885, by the village of Hyde Park by the president of its board of trustees, setting forth the ordinance, the report and the order, above mentioned, and praying, that the cost of said improvement might be assessed in the manner prescribed by law. The court appointed commissioners to make the assessment, who took the oath. The assessment roll was returned into court, and, on January 11,1886, a rule was entered, giving ten days, within which objections might be filed. Various objections were filed by the appellees, and¡, after hearing, the county court dismissed the proceeding. From such order of dismissal the village prosecutes its appeal to this court.

The act of the legislature, under which the proceeding was instituted, is as follows:

“An act to vest the corporate authorities of cities and villages with power to construct, maintain and keep in repair drains, ditches, levees, dykes and pumping -works for drainage purposes, by special assessment upon the property benefited thereby, approved June 22, 1885, in force July 1, 1885.
“Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That the corporate authorities of cities and villages are hereby vested with power to- construct drains, ditches, levees and dykes, to erect pumping works, and to acquire the necessary land and machinery for such purposes, and otherwise to provide for draining any portion of the lands within their corporate limits, by special assessment upon the property benefited thereby. ¡
“Sec. 2. That the corporate authorities of cities and villages are hereby vested with the power to maintain and keep in repair such drains, ditches, levees, dykes, pumping works and machinery, and such drainage improvement, by special assessment upon the property benefited thereby: Provided, that no lot, block, tract or parcel of land shall be assessed more than once in any one year for such maintenance and repair.
“Sec. 3. All the proceedings for the making of the improvements in this act mentioned, and for the maintenance and repair thereof, and for the levy and collection of the special assessments to defray the cost of the same, shall be in accordanee with the provisions of article 9 of the general act for the incorporation of cities and villages, approved April 10, 1872.”

The main objection, urged by appellees, is, that the act of 1885 is unconstitutional. The second section of the act confers “the power to maintain and keep in repair,” etc. It is said, that section 9 of article 9 of the constitution, by the terms of which, “the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment,” etc., does ,not vest such authorities with power to maintain local improvements. It is claimed, that the power to make improvements does not include the power to maintain them. The item of $4000 for “one year’s maintenance of said pumping works” ■is, therefore, objected to, as improperly included by the commissioners in their estimate of the cost of the improvement. Counsel contend, that, inasmuch as the second clause of section 9 of article 9 of the constitution provides, that “for all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes, but such taxes shall be uniform in respect to persons and property, within the jurisdiction of the body, imposing the same,” the maintenance of the pumping works, if a corporate purpose at all, must be paid for out of funds, raised by general taxation, and not by special assessment.

We do not deem it necessary to discuss the position, thus taken by appellees, for the reason, that, if the legislature had the authority to pass the act of 1885, such authority must be referred, not to section 9 of article 9 of the constitution, but to another and entirely different provision of that instrument. An amendment to section 31 of article 4 of the constitution was adopted by a vote of the people in 1878. That section, as thus amended, 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 assessments upon the property benefited thereby. ”

In Moore, Ex’x. v. The People, 106 Ill. 376, in discussing the constitutionality of the Drainage act of 1879, we said: “The act, under which the proceedings w'ere had, was passed under the authority of this amendment, and authorized by it, and, if sections 1,9 and 10 of article 9, ever had any bearing upon an. assessment of this character, after this amendment became a part of the organic act, it would control, regardless of the provisions of the original constitution.”

The title of the act of 1885 describes it, as an act to vest the corporate authorities of cities and villages with power to construct, maintain, etc., drains, etc., and pumping works for drainage purposes. The purposes, for which such authorities are to maintain drains and pumping works, are drainage purposes and no other. By section 1 of the act, they are vested with power to construct drains, etc., to erect pumping works, and to acquire the necessary land and machinery for such purposes, “and otherwise to provide for draining any portion of the lands within their corporate limits.” The word “otherwise ” relates back to the clauses preceding it, so that the construction of drains, the erection of pumping works and the acquirement of lands and machinery are merely designated, as modes of providing for the drainage of the lands. By the second section, the authorities are vested with power to maintain, etc., “such” drains and pumping works, etc. The word, “such, ” relates back to the previous section, so that the drains and pumping works,'etc., which are to be “maintained,” are those only, which are used for the purpose of draining lands within the prescribed boundaries. Hence, the act of 1885 vests the corporate authorities of cities and villages with power to construct and maintain such drains and pumping works, as are necessary for the purpose of draining lands within their corporate limits.

The constitution authorizes the legislature to “provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain drains, ” etc. The act of 1885 does not formally provide for the organization of drainage districts, but, recognizing cities and villages, as already organized, provides for draining lands within the territory, covered by and coextensive with the corporate boundaries of such organizations. It creates no new officers for the purposes of effecting the drainage of such lands, but confers upon the corporate authorities, already existing, the power of taking such measures, as are necessary to drain any portion of the said lands.

In Kilgour v. Drainage Commissioners, 111 Ill. 342, we held, that the legislature had the constitutional power to enact, that the highway commissioners of a township should also be drainage commissioners of the township, and that such an enactment was not the assumption of an appointing power by the legislature. We there said, in reference to the amendment of section 31 of article 4 of the constitution: “This general grant of power, being unrestricted in terms, carries with it, by necessary implication, all other powers, necessary to make the general grant effective, and to accomplish the results intended. As to the mode, in which this power is to be exercised, the legislature is left the sole judge. Numerous instances might be referred to, in which the legislature has imposed new duties upon officers, already elected, where the duties of such officers are not fixed by the constitution, and the constitutionality of such enactments would seem to be unquestionable. ”

In Huston et al. v. Clark et al. 112 Ill. 344, where one of the points made was, that the organization of the drainage district was the act of the county court, and not of the people,residing therein, and that the drainage commissioners were not elected by the people, we said, in reference to the language of the amendment, now under consideration: “In this there is no limitation upon the legislature as to the mode of forming of such districts, or as to the agencies or instrumentalities to be used in their creation. * * * The constitutional provision' does not require, that the corporate authorities, who may exercise this power, shall be elected by the people of the district. The special amendment of the constitution, adopted in 1878, so far as it invades the former limitations of the constitution, must prevail, and such limitations are not applicable to the subject matter of this special amendment.”

Again, in Owners of Lands v. The People, 113 Ill. 296, a provision of the Drainage law, that “the county commissioners, in counties not under township organization, shall be the drainage commissioners in and for their respective counties, ” was held to be constitutional, and we there said: “Power to provide for the organization of drainage districts plainly carries with it, as an indispensable incident, power to declare what shall be the corporate authorities of those districts, and it is such corporate authorities,—not corporate authorities elected by the voters of the drainage district alone—who are to be vested with power to make the improvements by special assessment. * * * Cities, towns and villages may be vested with power to make local improvements by special assessments, * * * but it was never supposed, in such cases, that the proposed improvement must, to be valid, be territorially coextensive with the municipal authority, under which it is made. * * * It would, in all cases, be extremely difficult and, in many cases, impossible, to prescribe a district, by law, in which corporate officers should be elected, with the exact boundaries of the beneficial influence of a drain or levee, in advance of the legal ascertainment, by judicial trial or otherwise, of what property is specially benefited by such drain or levee. * * * No clause of the constitution prohibits the making the county commissioners the corporate authority for every drainage district in the county, although they are elected by the votes of others in the county, as well as of those of this drainage district.”

Under these authorities, the legislature is not restricted in its exercise, of the power, conferred upon it by the amendment of 1878, to the mode prescribed by the Drainage acts of 1879, nor to the agencies and instrumentalities, specially designated in those acts. If, in certain counties, highway commissioners may act, as drainage commissioners for their respective townships, and, in certain other counties, county commissioners may act, as drainage commissioners for their respective counties, there is no reason why the legislature may not designate the corporate authorities of cities and villages to act, as drainage commissioners for their respective cities and villages.

It is true, that the act of 1885 does not specifically state, that such authorities shall act, as drainage commissioners, but, practically and in effect, it constitutes them such by imposing upon them the duties, which naturally belong to such officials. The Drainage act of 1879 provides, that the drainage commissioners, therein named, shall, after petition by a certain number of owners of the lands in the proposed district, “enter on their record an order in writing organizing said drainage district.” The act of 1885, by providing, that the authorities of cities and villages shall have the power “to provide for draining any portion of the lands within their corporate limits by special assessment, ” etc., thereby necessarily confers upon such authorities the power to determine ivhat •portion of such lands shall be drained. When they have determined, that a particular portion of the lands needs draining, and have set the same apart, by ordinance or otherwise, as the district to be drained, they have thereby virtually organganized a drainage district.

Inasmuch as, under the decisions cited, the officers, who are charged with the duty of constructing and maintaining these drains, are not required to be elected by the people of -the drainage districts, we see no reason why, as a mere question of power, the legislature may not authorize the corporate authorities of cities and villages to organize drainage districts, within their respective territories, as well without, as with a preliminary petition for such organization from the owners of property, to be drained. No clause of the constitution prohibits the making such authorities the corporate authorities for every drainage district within their respective cities or villages. As the improvement is to be made by special assessment, its cost can not exceed the benefits to be derived from it, and, hence, the exact boundaries of a drainage district can not always be prescribed by law, “in advance of the legal ascertainment, by judicial trial, or otherwise, of what property is specially benefited by such drain. ” Therefore, we see no objection to that feature in the act of 3 885, which leaves it to the city or village authorities to determine what part of their lands may need draining, or, in other words, which leaves it to them to declare, by ordinance or otherwise, what portion of their territory shall be a drainage district.

We are of the opinion, that the act in question is not unconstitutional.

It is objected to the ordinance, that it does not specify “the nature, character, locality and description” of the improvement, as required by section 19, article 9 of chapter 24 of the Revised Statutes. A similar objection was considered by us in Levy v. City of Chicago, 113 Ill. 650, and City of Sterling v. Galt, 117 id. 11. Upon the authority of the views expressed in those cases, we think this objection is well taken. The provisions of the ordinance, that the wells or basins are to be located upon a certain lot, “or upon some other suitable lot in the immediate vicinity of the one described, ” that the lot described, or “some other suitable lot in the immediate vicinity” etc., be purchased, that there be erected suitable buildings, consisting of engine-room, boiler-room etc., “sub stantially as the same is delineated upon plans on file in ¿the office of the village engineer, ” are all objectionable, as not complying with the requirements of section 19. The ordinance is also defective in not specifying, with sufficient definiteness and certainty, the location of the man-holes and man-traps, and in giving no specifications, from which the cost of the pumping engines and boilers and their foundations can be estimated.

The objection to the ordinance, that it provides for the pur-' chase of a lot, is also w'ell taken. The trustees had no power to acquire such a lot for such a purpose otherwise than by condemnation, as provided for in sections 3 and 4 of article 9, above mentioned. We understand the counsel for appellant to admit, that the passage of another ordinance wdll be necessary, in order to acquire the lot in question.

Counsel for appellees are correct in stating, that, under article 9 of the act of 1872 for the incorporation of cities and villages, it is the duty of the commissioners, appointed by the county court, to determine what lands are benefited by the proposed improvement and to assess such lands. But we do not think, that, under section 4 of the ordinance, the board of trustees usurps the functions of such commissioners. That section merely limits the area of the territory to be •drained.

Without considering any other of the objections, which are urged against the validity of the ordinance, we think, that the county court properly dismissed the proceeding on account of the objectionable features of the ordinance, that are here indicated. The order of dismissal, entered by the county •court, is, therefore, affirmed.

Order affirmed.


text:
    The Board of Supervisors of Stark County v. The People ex rel. Commissioners of Highways.

      Filed at Ottawa November 13, 1886.

    1. Mandamus—whether awarded—generally. The relator must show, By his petition, a clear, undoubted right to the thing sought, before the writ of mandamus will be awarded to compel it to be done.
    2. Bridges—county aid—power of commissioners of highways to determine the question. The law makes the commissioners of highways the ■exclusive judges of the public necessity of constructing bridges within their respective towns; and the county board, when asked for aid in the building of ■a bridge, has no power to determine, for itself, whether any necessity exists for the proposed improvement.
    3. Whenever the facts exist showing a town to be entitled to county aid In constructing a bridge, and the same are made to appear by the action of -the commissioners of highways, that is all the law requires. It is only necessary that the facts enumerated in the statute do in fact exist, to authorize the •town authorities to demand county aid for the proposed public improvement.
    4. Same—provision by the town for its share of the cost—at what time ■it may be made. Since the amendment of the Hoad law, in 1883, it is no longer necessary that the town authorities shall first make provision for one-half the expenses of constructing a bridge, as a condition precedent to county aid. Such aid is now granted upon condition the town shall raise its half of the cost of such bridge, so that it is immaterial when the town makes such ■provision,'—whether before or after the action of the county board making the appropriation.
    Appeal from the Appellate Court for the Second District;— Beard in that court on appeal from the Circuit Court of Stark •county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. B. F. Thompson, for the appellant;
    The party applying for a mandamus must show a clear legal right to have the thing done which it seeks. Stark County v. People ex rel. 110 Ill. 577; Klokke v. Stanley, 109 id. 192; People v. Hatch, 33 id. 140; Commissioners v. People, 66 id. 339; People v. Village of Crotty, 93 id. 180.

      This is the universal rule: the relator must show a clear, undoubted right to the writ, or it will not be awarded. People v. Glaser, 70 Ill. 232; People v. Ketchum, 72 id. 212; Railway Co. v. County Clerk, 74 id. 27; St. Clair County v. People, 85 id. 396; People v. Lieb, id. 484; People v. Old Town, 88 id. 202; People v. Commissioners, id. 141; People v. Klokke, 92 id. 134; People v. Davis, 93 id. 133; Louvalle v. Soucy, 96 id. 467.
    The law of 1883, under which this case is brought, differs somewhat from the statute of 1879. In the first place, it must appear that a bridge is necessary before county aid can be invoked. Who is to determine this question ? Evidently not the commissioners alone, but the supervisors. “When it is necessary to construct * * * any bridge * * * on a public road in any town, * * * the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax * * * was for * * * sixty cents on each one hundred dollars, * * * the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid; and if the foregoing facts shall appear, the county board shall appropriate * * * a sum sufficient to meet one-half the expense of said bridge. ” All the foregoing facts must appear. It must appear to the county board that such bridge is necessary, in the same manner that it may appear to the board that a new court house or a new jail is necessary. When it does so appear, then, as said by this court in Supervisors v. People ex rel. 110 Ill. 511, “the duty thus imposed on them is just as obligatory as that which requires them to build jails, court houses, and the like.” But the necessity for the bridges is a fact to be determined by themselves, and not by the commissioners for them.
    In this case the supervisors are not satisfied that a new bridge is necessary. The stream is crossed by a very good and substantial wooden bridge, that can be easily repaired and made to answer the public travel on that road for years. A new bridge is not necessary, but it is only necessary to repair the old.
    Mr. Miles A. Fuller, for the appellees:
    If the requirements of the statute have been complied with, then it is the imperative duty of the county board to make the appropriation asked. Supervisors v. People, 110 Ill. 511; People v. Supervisors, 100 id. 640; Town of New Boston v. Supervisors, 110 id. 197.
    The money being ill the treasury, the commissioners had the right to appropriate to the purposes for which it was levied, even though there may have been prior indebtedness. Commissioners v. Newell, 80 Ill. 587.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The petition in this case was for a mandamus, and was brought in the name of the People, on the relation of the commissioners of highways of the town of Essex, against the board of supervisors of Stark county. It is shown, the commissioners of highways of that town had determined to construct a bridge across Spoon river, on the highway within the limits of the town, and to enable them to do so, they applied to the board of supervisors for that aid which the statute provides the county board shall give to the town authorities when they shall have brought themselves within its provisions. The aid asked from the county board was denied, and thereupon this suit was commenced to compel the board to make the required aid. On the trial, the circuit court awarded a peremptory writ of mandamus to compel respondents to grant the aid demanded.

Section 19 of the act of 1883, in “regard to roads and bridges in counties under township organization, ” in force July 1,1883, provides: “When it is necessary to construct or repair any bridge over a stream, or any approaches thereto, by means of an embankment or trestle-work, on a public road in any town, * * * and the cost of which will be more than twenty cents on the one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year, in said town, was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid; and if the foregoing facts shall appear, the county board shall appropriate from the county treasury a sum sufficient to meet one-half the expenses of said bridge, or other work, on condition that the town asking aid shall furnish the other half of the required amount.”

The facts which this section of the statute requires “shall appear, ” to make it obligatory upon the county board to grant aid in such cases, do all appear from the record in this case, and that being so, it was the obvious duty of the board to grant the required aid. It is alleged “a public necessity” existed for the construction of a bridge across Spoon river, where the highway running north and south crosses such river; that the commissioners had determined to build a bridge at the point indicated; that they had estimated the cost of such bridge at a certain sum stated, which sum is more than twenty cents on one hundred dollars’ valuation of property of such, town on the latest assessment roll. It is further alleged, the commissioners had levied, for the year 1884, sixty-eight cents on one hundred dollars’ valuation of the taxable property in the town, and that they had levied sixty cents on one hundred dollars’ valuation for the year 1885, and that the greater part of the sum to be obtained by such levy will be needed for the ordinary and necessary repair of roads and bridges; and the petitioners allege that they have raised, by ordinary taxation, and have in their treasury, one-half the sum necessary to build such bridge. The respondents, by their answer, denied most of the principal allegations in the petition, but the evidence introduced at the trial sustains every material allegation.

Conceding, as may be done, relators, before they would be' entitled to relief, must make a case clearly within the provisions of the statute, there is no reason to doubt that has been done in this case. The law plainly is, the relator must show a clear, undoubted right to the writ, or it will not be awarded. That has been done.

The point is made, it must appear that a bridge is necessary before county aid can be invoked, and it is said in argument, it is the privilege of the county board to determine for itself when any public necessity exists for making the proposed improvements. This is a misapprehension of the meaning of this section of the statute. The provision is, when certain facts “shall appear,” it becomes the duty of the county board to grant the required aid. Whenever the facts exist,, and the same are made to appear by the action of the commissioners of highways, that is all the law requires. It is. only necessary the facts enumerated in the statute do in fact exist, to authorize the town authorities to demand county aid for the proposed public improvement, otherwise, if the county board were invested with a discretion to determine that question for itself, it might defeat the operation of the statute. The matter of making public improvements seems to be intrusted exclusively to the judgment and discretion of commissioners of highways of the several towns, and, as was-said by this court in New Boston v. Supervisors, 110 Ill. 199, “as the legislature has seen fit to commit such matters to the-management of the local officers of the town, it is not the-province of the courts, by judicial construction, to place it. elsewhere. ”

Under the former statute, it was said, and with entire accuracy, the county board was not bound to make the appropriation in such cases until the town had made provision for one-half of the expenses of the proposed improvement. Making such provision was thought to be a condition precedent to obtaining the aid demanded, and one necessary for the protection of the tax-payers of the county. Since the cases giving that construction to the statute were decided, it has been slightly changed by the act of 1883. It is now provided, the aid shall be granted “on condition that the town asking the aid shall furnish the other half of the required amount.” It would seem it is no longer a condition precedent, as the aid is granted on the condition the town will furnish one-half of the amount needed for the proposed improvement. It is immaterial when such provision is made,— whether before or after the action of the county board making the appropriation. The aid is granted on condition the local authorities will provide for one-half of the expense of the work to be done, and that affords all needed protection to the taxpayer. But in this case it is proven, past all doubt, the town authorities had a-sum equal to one-half of the expense of the proposed work, in the hands of their treasurer, and that it had been appropriated for this specific purpose. That is all that would have been required under the former statute.

Other questions supposed to arise on the record have been discussed by counsel, but as they do not affect the merits of the controversy, it is not thought to be necessary to consider them.

No error appearing, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    The International Bank v. Erastus H. Ferris.

      Filed at Ottawa November 13, 1886.
    1. Banks and bankers—collections—application of proceeds—liability therefor. If the holder of a draft instructs his banker to collect the money due on it, and hold the same until called for, and the bank, in violation of such instruction, pays the same to another by crediting it to the account of the latter, it will be liable to the person for whom it made the collection.
    2. But where the collection is made for the owner under his direction, or under an instruction of a person accompanying him, given in his presence and hearing, to hold the money until one or the other of the two should give directions as to its disposition, and such other person afterward has the same paid to himself, or placed to his credit to make good his overdrawn account, the bank will not be liable to the owner for whom the collection was made.
    3. Evidence—production of books of account under subpoena duces tecum. Where a witness, in obedience to a subpoena duces tecum, to produce his books of account, showing a transaction between him and a party to the suit, produced his cash book, and stated, on examination, that his ledger was lost and he had been unable to find it, and he was examined as to the cash book, one item of which was given in evidence, and no objection was made that the witness had not produced all the books in his power, it was held, that an assignment of error that the court refused to enforce the subpoena was not well taken. v
    4. Ratification—with knowledge of the facts. In order to bind a party as principal, by the ratification of an act of another, he must have been, at the time, fully informed of all the material facts.
    5. Instruction—not referring to all the elements in the case. An instruction directing the attention of the jury to the principal question in the case will not be erroneous, even if there are some minor and subordinate questions not noticed therein, but to which attention has been called in other instructions.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Messrs. Kraijs, Mater & Brackett, for the plaintiff in error:
    The court should have enforced the production of the books by the witness. 2 Tidd’s Pr. 805; 3 Chitty’s Pr. 828, 829; 3 Greenleaf on Evidence, sec. 335; 1 Wharton on Evidence, sec. 377; 2 Wait’s Pr. 726; United States v. Babcock, 3 Dill. 566; Amey v. Long, 7 East, 473; 2 Sweeney, (N. Y.) 194.
    The question whether the books were necessary, or what they showed, was not for the witness to decide, but for the court to determine. Amey v. Long, 7 East, 473; Chaplain v. Briscoe, 5 S. & M. 198; Bull v. Loveland, 10 Pick. 9; Doe v. Kelly, 4 Dowl. 473.
    The act of an agent may be presumed to have been ratified by his principal when the acts and conduct of the latter are inconsistent with any other supposition, as, when he receives and holds the fruits of the agent’s acts. Hall v. Harper, 17 Ill. 82; Madux v. Beran, 29 Md. 485; Woodbury v. Laund, 5 Minn. 339.
    A principal who is informed of an unauthorized act done by his agent, must give notice of his dissent within a reasonable time, or his assent and ratification will be presumed. Williams v. Merritt, 23 Ill. 623; Cairnes v. Bleeker, 12 Johns. 300; Connett v. Chicago, 114 Ill. 233; Booth v. Wiley, 102 id. 84; Jervis v. Hoyt, 2 Hun, 637; Johnson v. Wingate, 29 Me. 404; Clay v. Spratt, 7 Bush, 334; Farwell v. Howard, 26 Iowa, 381; Law v. Cross, 1 Black, (U. S.) 533; Story on Agency, sec. 255.
    Ferris was bound by the act of Bruce, on the principle that “a party is bound by the acts of another done in pursuance of an apparent authority.” Noble v. Nugent, 89 Ill. 524; Anderson v. Armstead, 69 id. 452; McNeil v. National Bank, 46 N. Y. 345; Mixon v. Brown, 57 N. H. 34; Doubleday v. Cress, 60 Barb. 181; Bridenbacker v. Lowell, 32 id. 9; Debaum v. Atchison, 14 Mo. 543.
    What .facts amount to a ratification is a question of law. Swartwout v. Evans, 37 Ill. 443; Trustee v. McCormick, 41 id. 323; Marine Co. v. Carver, 42 id. 66; Paul v. Berry, 78 id. 158; Henderson v. Cummings, 44 id. 325.
    Messrs. Fowler, Bemy & Gregory, for the defendant in error:
    The court below made no ruling in respect to the production of the books.
    The questions of fact are settled conclusively by the affirmance of the judgment by the Appellate Court.
    The instructions are not obnoxious to the objections urged against them.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an action of assumpsit, brought by E. H. Ferris against the International Bank of Chicago, in the Superior-Court of Cook county, to recover money had and received to and for the use of the plaintiff. The declaration contained only the common counts, and the damages were laid at $3000. The case was tried before a jury, who returned a verdict for $1060.40, and judgment was rendered upon the verdict. The Appellate Court has affirmed the judgment, and the case is brought before us by writ of error.

In November, 1882, Ferris, who was the captain of a schooner, running upon the lakes, lost his vessel and abandoned her to the insurance company. She was insured in the Marine Insurance Company of Buffalo, whose Chicago agent was E. K. Bruce. Ferris received of Bruce, in payment Of the insurance money, to which he was entitled, two drafts, one for $511.33, and the other for $1980, both payable to the order of Ferris, both dated December 26, 1882, and both drawn by Bruce on Crosby & Dimick of Buffalo, the representatives of the insurance company in that city. Ferris, who had been a seafaring man for more than twenty-five years, was unacquainted with any of the banks in Chicago,.and was ignorant of their ways of doing business. He was desirous of having the drafts collected, and, for the purpose of effecting their collection, Bruce, who had been in the habit of doing business with the International Bank, took him there, and introduced him to Schweisthal, the cashier.

¡ Ferris and Bruce went to the bank on December 26,1882, and the former endorsed the drafts. It is admitted, that Ferris was then indebted to Bruce in a sum which was at least equal ,to the amount of the smaller draft. Accordingly, by his direction and with the consent and understanding of all parties, the draft for $511.33 was turned over to Bruce, and at once credited by the bank to Bruce’s account. The bank agreed to ' collect the larger draft for $1980, and was to be paid $15 for doing so. The main dispute between the parties is in reference to the instructions, which were given to the bank, or its cashier, as to the disposition, that was to be made of the $1965, when collected. Defendant in error claims, that he told the cashier to hold the proceeds of the collection, until he, Ferris, called for them. Plaintiff in error claims, that it was instructed to hold the money, subject to the order of either Ferris or Bruce. It is undisputed, that the bank was to retain the funds, and not to deposit them to any one’s credit, until it should receive further directions in the future from somebody.

Plaintiff in error collected the $1980, through its correspondent, the German Bank of Buffalo, about the 28th or 29th of December 1882, and received advices of the payment on December 30, 1882. After deducting the $15, it made out a certificate of deposit, dated January 2, 1883, for the balance, $1965, payable to the order of “M. Schweisthal, cashier,” and signed “M. Schweisthal, cashier,” and held the certificate, until January 20, 1883.

On January 20, 1883, the bank gave Bruce, who then had a deposit account with it, credit for the whole amount of the $1965. It is admitted, that, at the close of the 19th day of January, 1883, Bruce’s account with'the bank was overdrawn to the amount of $1585.26. The debt, due to the bank on account of this overdraft, was discharged by the credit, so given on the 20th, and the balance of the $1965 was drawn out by Bruce afterwards. Schweisthal states, that Bruce came into the bank on the 20th, and directed the money to be placed to his own credit. Bruce denies, that he gave any such direction.

If Ferris, as is claimed by him, instructed the bank to collect the money, and hold it, until he should call for it, and the bank, in violation of such instruction, paid the money to Bruce, by crediting it to the latter’s account, the bank was unquestionably liable to Ferris for the money. But if the bank, as it claims, received instructions from Ferris, or from Bruce in the presence and hearing of Ferris, to collect the money and hold it, until either Ferris or Bruce should give directions, as to its disposition, and, on January 20, Bruce did direct, that it should be placed to his own credit, then the bank was not liable to Ferris for the money. What the instructions were and what was done, in pursuance of them, are questions of fact. The judgment of the Appellate Court upon those questions of fact is final, and can not be reviewed by us. It only remains to consider, whether any error was committed by the trial court, in the admission or exclusion of evidence, or in the giving or refusing of instructions.

It is claimed by plaintiff in error, that the court below refused to enforce the subpoena duces tecum, which had been served on the witness, Bruce, and erred in doing so. The books, which the subpoena called for, were those, pertaining to the transactions between Bruce and Ferris. If it be conceded, that it was material to show the state of the accounts between Bruce and Ferris, the record does not sustain the charge, either that Bruce was not required to produce, or that he did not, as matter of fact, produce, all the books in his possession, bearing upon the subject of such accounts. It is true, the trial judge made some remark about the subpcena being too general in its terms, but he afterwards directed Bruce to get all the books he could find in reference to the accounts in question, and to bring them into court at its next sitting. After the adjournment, in answer to further questions upon the subject, Bruce produced his cash book, and stated, that his ledger was lost, and he had been unable to find it. Thereupon, counsel for plaintiff in error interrogated him as to the cash book, offered one of its items in evidence, and did not make any objection, that the witness had not produced all the books in his power. He furnished a sworn account, with itemized details, showing, that, in addition to the advances, paid by the small draft for $511.33, he had advanced for Ferris the sum of $1013.20. Ferris stated upon the trial, in open court, that he was willing to give the bank credit for these advances, and' that he only claimed the balance, after deducting them. It is evident, that the jury, acting upon this statement, deducted the $1013.20 from the $1965, and rendered their verdict for the balance, with interest. If defendant in error had recovered the whole of the $1965 and interest thereon in this action, he would still have been indebted to Bruce in the sum of $1013.20, and, as Bruce would have owed the bank the amount of the verdict, herein rendered, defendant in error would have been liable to garnishment by the bank for such amount. We, therefore, see no reason, why plaintiff in error should complain, because Ferris consented to give it credit, in the first place, for the amount of such advances.

The first instruction, given for plaintiff below, closed with the following sentence: “The question for you to try arises on the evidence as to what directions were given by plaintiff, or any one authorized to act for him in the matter, as to the disposition of the proceeds of this draft.”

It is objected to this sentence, that it calls the attention of the jury to one question in the case, whereas there were other questions. Whatever questions, other than that here indicated, were involved in the controversy, were merely subordinate, and the attention of the jury was sufficiently called to them by other instructions, that were given. It makes no difference what language the cashier may have inserted in the certificate of deposit, which was drawn up by him on January 2, 1883, in the absence of both Ferris and Bruce, and which was intended merely as a memorandum for his own use. The fact is not contradicted by any evidence in the case, that on December 26, 1882, the draft for $1980 belonged to Ferris, and, therefore, the bank could have no possible excuse for paying the proceeds of the draft to anybody but Ferris, unless his instructions authorized it to do so. What the instructions were, was, therefore, the question to be determined.

Whether or not Ferris ratified the act of the bank in paying the money to Bruce, after the payment was so made, is •an inquiry, which can not properly arise in the case, as there is no evidence, tending to show any such ratification. At the plaintiff’s request, however, the court did give two instructions upon this subject, and we do not think, that they were improperly modified, because the court inserted a clause to the effect, that, if there was any ratification by defendant in •error, it would not be binding on him, unless, at the time of making it, he was fully informed of all the facts.

The following instruction, which was given, placed the matter before the jury, in a favorable light for the defendant below:

“On behalf of the defendant it is contended, that at the time this draft was left for collection, the agent of the bank was told, in the presence of Ferris, and without objection on his part, that the bank should hold the proceeds of this draft subject to the order of either Ferris or Bruce, and that subsequently it was carried to the credit of Bruce’s account, by his direction. If you should find, from the evidence, that such are the facts, then the plaintiff could not recover.”

We do not deem it necessary to enter into any further discussion of the instructions. Those, that were given, presented the case fairly, and there was no error in refusing those, not given.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Charles Wicker et al. v. Benjamin F. Ray.

      Filed at Ottawa November 13, 1886.

    1. Wills—whether an estate in fee, or merely for life. Where a testator in a clevise employs language sufficient to pass the fee simple title, in the absence of the expression of a clear intention to cut down the fee to a life estate, an estate in fee simple will pass.
    2. The following clause in a will, “I now will and bequeath the rest and residue of all I possess of real and personal and mixed property, as follows, viz.: one-fourth to my daughter H., one-fourth to my son W., one-fourth to-my two grandchildren, J. and E., and one-fourth to my wife, 0.,” is held sufficient to pass the fee simple title of the undivided one-fourth of the estate to the two grandchildren.
    3. A subsequent clause in the will, directing that the oné-fourth given to-his daughter be so secured to her that she should enjoy it during her natural life, and after her decease then to her right heirs forever, and expressing a wish that the interest of the two grandchildren should in like manner be secured to them, and giving the executors power to so secure such shares, as indicated, and to manage the estate until a division thereof, etc., was held not to cut down the estate in fee given to the grandchildren in the prior-clause, and make it an estate for life, only.
    4. Same—the rule in Shelly’s case—its application. A devise of an estate to a daughter, to be so secured to her that she shall enjoy it during her natural life, and after her decease to go to her heirs forever, will, under the-rule in Shelly’s case, give her an estate in fee simple.
    5. Same—when the legal title is given to executors. A testator devised his estate in four equal parts, one-fourth to his daughter, one-fourth to his son, one-fourth to two granddaughters, and one-fourth to his widow, and by the will further provided and directed that the share of his daughter be so secured to her that she might enjoy it during her life, and on her death to go to her heirs forever, and in like manner that the share of his granddaughters be so secured to them, and gave his executors power to manage the estate for the best interests of all concerned, until a division should be made, and to sell depreciating stocks or property, and re-invest, when deemed proper: Held, that the executors, by implication, took the legal title to the estate, in trust, to enable them to carry out the intentions of the testator, and discharge the trust created by the will.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    ■Messrs. Wilson & Moore, and Mr. N. M. Jones, for the appellants:
    Jenny and Eliza Carson took a life estate, only, under the will of Lewis WThiteman. Butler v. Huestis, 68 Ill. 594; Belslay v. Engel, 107 id. 182; Perrin v. Blake, 4 Burr. 257.
    The decree of the circuit court as to the construction of Whiteman’s will does not enlarge the estate acquired by Jenny and Eliza Carson under such will, nor can it bind the remainder-men.
    Messrs. Hutchinson & Luff, for the appellee:
    Under the devise, and by operation of law, Jenny and Eliza Carson u'ere seized in fee simple of one-fourth of the estate. 2 Washburn on Real Prop. 554, et seq.; Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Beacroft v. Strawn, 67 id. 28.
    The rule in Shelly's case is a rule of property, and not of construction, and in all cases within the terms of the rule the estate vests absolutely, by operation of law. 2 Washburn on Real Prop. 554, et seq.; Baker v. Scott, 62 Ill. 86.
    The rule in question, as applied by the decisions of this court to the same state of facts shown in this case, and long acquiesced in and relied upon as a rule of property, will not be disturbed, except for the strongest reasons, and for manifest error. 1 Kent’s Com. 476; Headen v. Rust, 39 Ill. 186; Anderson v. Jackson, 16 Johns. 402; Bates v. Relyea, 23 Wend. 341.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellee, Benjamin F. Bay, on the 17th day of 'April, 1886, being in possession and claiming to be the owner of the land in controversy, bargained and sold the same to appellants, Charles G. Wicker and Charles H. Smyth, for $12,800, to be paid in installments. The title, upon examination, not being satisfactory to the purchasers, they declined to perform the agreement. The appellee thereupon filed, in the Superior Court of Cook county, the present bill, to compel a specific performance of the contract. Upon the hearing, the court entered a decree in conformity with the prayer of the bill, which, on appeal, was affirmed by the Appellate Court for the First District. The present appeal is from the judgment of affirmance.

Appellee deduces title to the land in question from Jenny and Eliza Carson, devisees under the last will and testament of their grandfather, Lewis Whiteman, deceased. His will, so far as it affects the present controversy, is as follows:

“I now will and bequeath the rest and residue of all I possess of real, personal and mixed property,, as, follows, viz.: One-fourth to my daughter, Harriet W. Irwin, one-fourth to my son, William J. Whiteman, one-fourth to my two grandchildren, Jenny and Eliza, daughters of Jenny Carson, wife •of Dr. William Carson, and one-fourth to my wife, Catharine. The interest of one-fourth aforesaid, of my daughter, Harriet, I will shall be so secured to her that she shall enjoy it during her natural life, and after her decease, then to her right heirs forever; and in like manner do I wish the one-fourth interest secured to my grandchildren, Jenny and Eliza Carson. I desire to clothe my executors with power to secure to my ■daughter, Harriet, the one-fourth interest in my estate as ■above, and also to secure to my grandchildren their interest ■of one-fourth. I desire to empower them to manage my estate for the best interests of all concerned, until a division is made, that they may sell depreciating stocks or property, and re-invest the same, when they deem it proper. The income, from whatever source, until a division is made, my executors will pay to each party as realized, one-fourth to each. My Blinois lands I would recommend to he held for five or ten years, and not sell then, unless the time was favorable for such sale.”

The question to be- determined is, whether Jenny and Eliza ’Carson took, under the will, a fee simple or life estate. If "the former, the decree below is right; if the latter, it is wrong.

The first clause of that portion of the will cited is clearly ■sufficient to pass the fee to the two grandchildren. The question" then arises, whether the following clause was intended ■as a modification of the previous unconditional limitation,— ■or, in other words, was it thereby intended to cut down the fee to a life estate. In considering this question, it is proper to note the character of the estate devised, and the duties and powers which the testator evidently intended should be performed and exercised by the executors with respect to it.

For the efficient performance of the duties imposed by the will, it will be perceived the executors are clo'thed with power, generally, “to manage the estate for the best interest of all ■concerned, ” until a division of the estate, and, specifically, “to sell depreciating stocks or property,” which, of course, includes real as well as personal estate; also, to re-invest the proceeds when they deemed it proper. As a fee simple title in the executors was necessary to the exercise of some of the powers thus conferred, it follows, according to a familiar rule of construction, they accordingly took, by implication, the fee in the land, for the purposes of the trust created by the will. With respect to the Illinois land, it is quite clear, from the last clause above cited, the testator contemplated a sale of it by the executors, subject to the limitation mentioned, and not by the devisees, as is supposed by appellee’s counsel. Keeping in view these provisions of the will, as well as the consequences which the law annexes to them, we can the more readily understand the meaning and purpose of the testator in directing that his daughter, Harriet’s, one-fourth interest “should be so secured to her that she should enjoy it during her natural life, and after her decease, then to her right heirs forever, ” and that the one-fourth interest of his grandchildren, Jenny and Eliza, “should be secured in like manner. ” The executors being thus clothed with the legal title to the entire estate, and having an unlimited power of disposition over the same, it is natural enough that the testator should have expressed his wishes, as he did, in respect to the manner in which the interests of his daughter and grandchildren should be settled upon them, or secured to them, as he expresses it, by the executors. As the equitable fee in the undivided land had already been given them by the will, it was the wish of the testator that their interests, when allotted and set apart, should be settled upon them by the executors in equally as favorable and ample a manner, and the most appropriate way of doing that was the one the testator directed to be adopted, namely, to limit the estate to them and their respective heirs. It is true, the limitation directed is not precisely in this simple form, for if it were, no question could have arisen about it; but, in legal effect, there is no difference between the language used and that contained in a limitation of the simple form stated.

The fact that the testator gave no directions in respect to securing or settling the interests of the other devisees, does not at all militate against the view we have taken. There may be, and probably were, personal considerations, applicable alone to the daughter and grandchildren, which led the testator to give special instructions, as he did, in respect to their interests. At all events, it is not clear that the testator, by the provision of the will in question, intended to limit or cut down the fee, which he had already given by the preceding clause, to a mere life estate, and in the absence of such clear intention, according to all the authorities, both English and American, it should not be given that effect. Treating the clause which is supposed to so cut down the fee, as a distinct, substantive limitation, the case would then clearly come directly within the principle of law known as the rule in Shelly’s case, and would, of course, he governed by it. 2 Washburn on Real Prop. 554, et seq.; Baker v. Scott, 62 Ill. 86; Brislain v. Wilson, 63 id. 173; Beacroft v. Strawn, 67 id. 28.

We think the decree of the court below is right, and the judgment of the Appellate Court will therefore be affirmed.

Decree affirmed.

Scott, 0. J.: I do not concur in this opinion.


text:
    Edward S. Ely v. Morgan Dix et al.

      Filed at Ottawa November 13, 1886.

    1. Will—power of sale in several executors—when the power may be exercised by a part of the donees thereof. Where power is given in a will to several executors to sell real estate, a sale by the executor who qualifies, or by the surviving executor, will be valid, whether the power is merely discretionary or is mandatory.
    2. A testator gave all his estate to his widow for her life, and directed that at her death it be disposed of, one-third to the testator’s son, one-third to his daughter, A, for her life, the income to be applied, by her and her husband, to her support, and to the support and education of her four children, and at her death her portion to be divided among her said children as they should, respectively, become of age, and the other third to his daughter, B, for her life, the income to be applied in the same manner as with the other daughter, He appointed O, D and E, his executors, and authorized them to sell such portions of his real estate as they might think advantageous, and mUke proper conveyances. E declined to accept and qualify. 0 and D qualified, and the widow and D died without any sale of real estate having been made: Held, that 0, the sole surviving executor, had full power to sell and convey any of the lands of the testator in this State.
    3. Same—effect of the death of one of several beneficiaries, on the power of sale given to executors. It has been held, that when the object for which a power has been created has been accomplished, or has become impossible, or unattainable, the power itself will cease to exist.
    4. But where power is given to executors to sell real estate for the purpose of creating a fund in which several persons are to participate, the death of one of the beneficiaries before there has been any attempt to exercise the power, will not in anywise operate to impair the authority of the exeeutorsto sell for the benefit of the survivors. In such case, the object of the testator in making provision for the fund has not been wholly accomplished, nor has it become entirely impossible or unattainable,—and so the power will not have ceased to exist.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. William C. Reynolds, for the appellant:
    The sole surviving executor has all the powers which the-three executors could now exercise if all were living and qualified. Rev. Stat. 1872, chap. 3, sec. 97; Pohlman v. Smith, 23 Ill. 448; Wardwell v. McDowell, 31 id. 364; Hughes v. Washington, 72 id. 84; White v. Glover, 59 id. 465; Taylor v. Morris, 1 Com. 341; House v. Raymond, 1 Huse, 50.
    Messrs. Wilson & Moore, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court r

Appellees, who are the executor and devisees under the will of John A. Dix, deceased, filed their bill, in the Superior Court of Cook county, against the appellant, to enforce the specific-performance of a contract, dated February 8, 1886, made-between Morgan Dix, “sole surviving executor of the estate of John A. Dix, ” and the appellant, for the sale by the former to the latter of about sixty acres of land in the east half of the south-east quarter of section 24, township 38, range 14, east of the third principal meridian, in Cook county, except certain portions occupied by the Hyde Park and Lake water works, and except the right of way of the South Chicago Railway Company, for the sum of $35,000, payable, $8000 in cash, and the balance in installments, secured by notes and trust deed upon the property. The Superior Court decreed in favor of appellees, and the Appellate Court of the First District affirmed the decree. The case is brought before us by apjjeal from such decision of the Appellate Court.

Appellant declines to carry out the contract of purchase, on the ground, that the vendor can not give good title to the property. The objection, made to the title, is the alleged want of power in Morgan Dix, as sole surviving executor, to make sale of the land in question. Hence, the questions, which the record presents for our consideration, arise upon the construction of the will of John A. Dix. Its provisions are as follows:

“I, John A. Dix, of Seafield, West Hampton, Suffolk county, do make and declare this to be my last will. I give and bequeath to my dear wife, all my estate, both real and personal, for her life. At her death I direct that it be disposed of as-follows:
“I give to my son, Morgan Dix, one-third of my said estate.
“I give to my daughter, Elizabeth Morgan, wife of Charles F. Blake, one-third of my said estate for her life, the income thereof to be applied, by herself and her husband, to her support, and to the education and support of her four children now living; and at her death I direct that it be divided in equal portions between the said children, if they shall then be twenty-one years of age, or if not of that age, then to receive their respective portions on becoming so.
“I give to my daughter, Catharine Morgan, wife of Thomas Walsh, one-third of my said estate for her life, the income thereof to be applied, by herself and her husband, to her support, and to the education and support of' her two children now living; and at her death I direct that it be divided in equal portions between the said children, if-they shall then be twenty-one years of age, or if not of that age, then to receive their respective portions on becoming so.
“I appoint Morgan Dix, John J. Cisco and William T. Lawrence, executors of this my last will. I authorize them to sell such portions of my real estate as they may think it advantageous to dispose of, and to execute all such legal instruments as may be necessary to give perfect titles to the purchasers. And I direct my said executors, in case they make any such sales, to invest the proceeds in first mortgages of the property so sold, in first mortgages of other improved real estate, in bonds of the United States, of the State of New York, or of any of the New England States, or in the first mortgage bonds of railroad companies the stock of which is selling at its par value in the city of New York.
“I direct that no bonds be required of my said executors for the faithful execution of their trust, as I have perfect confidence in their integrity.”

The testator died, on April 21, 1879, in Suffolk county, New York, and his will was admitted to probate, in the surrogate’s court of that county, on August 18, 1879. Letters testamentary were issued to Morgan Dix and John J. Cisco. William T. Lawrence renounced his appointment and refused to act, as executor. John J. Cisco died on March 34, 1884, and, since his death, Morgan Dix has been the sole acting executor. An authenticated copy of the will and of the probate thereof have been filed in the recorder’s office of Cook county. Two of the four children of Elizabeth Morgan Blake, and the two children of Catherine Morgan Walsh, are minors. The widow of John A. Dix died on February 3, 1884. The assets of the estate are still in the hands of Morgan Dix, as executor. No division of the real estate, owned by the testator at the time of his death, has ever been made, nor has any part thereof been sold or conveyed by any of his devisees.

The first question is, whether the present executor, acting alone, has the same powers, which were conferred by the will upon the three executors, therein named. We think, that whatever powers, of sale or otherwise, the three executors could now exercise, if they were all living and qualified, are vested in Morgan Dix, as sole surviving executor.

Section 97 of chapter 3 of the Eevised Statutes of this State, being “An act in regard to the administration of estates,” which was passed in 1872, provides as follows:

“In all cases, where power is given in any will to sell and dispose of any real estate, or interest therein, and the same is sold and disposed of in the manner and by the persons appointed in such will, the sales shall be good and valid; and where one or more executors shall fail or refuse to qualify, or depart this life before such sales are made, the survivor or survivors shall have the same power, and their sales shall be as good and valid, as if they all joined in such sales.”

The provision, here quoted, is substantially the same, as section 93 of chapter 109 of the Eevised Statutes of 1845, except that the latter did not contain the words, “shall fail or refuse to qualify. ” It was, however, held, in Clinefelter v. Ayers, 16 Ill. 329, that the statute of 21 Henry VIII, chap. 4, was in force in this State. That statute provided, that, if any or either of the persons, named as executors in the will, should refuse to act, the right and power should devolve upon those, who should qualify, to execute the will, in the same manner, as all could have done. It was accordingly decided, in the subsequent case of Pahlman Ex’r. et al. v. Smith, 23 Ill. 448, that, where two persons were, by will, empowered to sell real estate as executors, and not as trustees, and one of them refused to act, the other might, as sole executor, exercise the power, in the same manner, as both might have done, if both had qualified. It was still further held, in the later case of Wardwell v. McDowell et al. 31 Ill. 364, that, where power is given, in a will, to several executors to sell real estate, a sale by the executor, who accepted' and qualified, was valid, whether the power, conferred by the will, was a mere naked power, or a power coupled with a trust, or whether the power was of a discretionary or mandatory character.

The next question is, whether the death of the widow has had the effect of annulling or discontinuing the power of sale, originally vested in the executors. It seems to be assumed by the appellant, that the sole purpose of the testator, in conferring the power of sale upon his executors, was to realize a fund for the support of his widow during her life. It is, therefore, urged, that, inasmuch as the widow has died, before any attempt has been made to exercise the power of sale, the object of creating such power can not be realized, and, accordingly, the power itself no longer continues. To support this position, reference is made to the case of Smyth v. Taylor, 21 Ill. 296, where we held, that, when the object, for which a power has been created, has been accomplished, or has become impossible, or unattainable, the power itself should cease to exist. We find no fault with the doctrine, thus laid down. As applied to the facts of the case, referred to, it is unquestionably sound. We do not think, however, that it can be properly held to have any application in the construction of the will, now under consideration, unless it be to sustain the power of sale, therein conferred.

This will directs, how the estate shall be disposed of at the death of the widow. The testator states, that, at the death of his wife, he gives to one of his daughters one-third of his estate for her life, the income thereof to be applied to her support and to the education and support of her four children. He, also, states, that, at the death of his wife, he gives to another daughter one-third of his estate for her life, the income thereof to be applied to her support, and to the education and support of her two children. The support and education of his two daughters and six grandchildren are objects, which he very distinctly provides for, and he, as distinctly, provides for the accomplishment of those objects after the death of his wife. It follows, as a matter of course, that they were not made unattainable by her death.

The support and education of the testator’s daughters and grandchildren can not be secured to them without an income." How is an income to be realized ? It is admitted, that the estate consists largely of vacant, unimproved and unproductive lands in Illinois and elsewhere. These lands must be sold, and the money derived from their sale, must be invested, in such a way as to obtain an income. Accordingly, the will itself authorizes the executors to sell the real estate, and invest the proceeds in bonds and mortgages. The power of sale was conferred, as much for the purpose of providing support and education for the daughters and grandchildren, as for the purpose of supporting the widow during her life. The daughters are yet alive. Each is to have a third of the estate during her life, and there is to be no division between her children, until her death. Inasmuch, therefore, as the object of the testator in providing for the support and education of his daughters and grandchildren has not yet been accomplished, nor become impossible or unattainable, the power of sale, vested in the executors, so as to enable them to effect that object, has not failed, but still exists in Morgan Dix, the acting executor. The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The Merchants’ National Bank v. Augustus W. Ritzinger et al.

      Filed at Ottawa November 13, 1886.

    1. Bank checks—bills of exchange—distinguishing qualities—issued in sets—whether payment of either is conditional. The essential characteristic of a check is, that it shall be instantly payable, on demand.
    2. An instrument in the form of a check, by a depositor upon his banker, is not a draft or bill of exchange merely because it is drawn by a party out •of this State on a bank in this State, or contains the words “original, ” and '“second unpaid.” The use of these words does not make its payment conditional.
    ' 3. The issue of more than one copy of a bill of exchange or check upon a bank does not, in any sense, render the instrument conditional. The whole of the sets constitutes, in law, but one bill, and the payment or cancellation of either of the sets is a discharge of all.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Frank J. Smith & Helmer,1 for the plaintiff in error:
    Two questions are presented by the record: First, is the instrument sued on, a check, or a foreign bill of exchange; and second, if a foreign bill, can the holder sue the drawer before acceptance.
    It is drawn as one of a set, and made payable on the condition that the second is unpaid. Foreign bills are drawn in sets, for the convenience of the holder in obtaining an early and sure acceptance. No other negotiable instrument is thus drawn. Downes v. Church, 13 Pet. 205.
    Commonly, the drawer of foreign bills delivers to the payee different bills of the same tenor and date, each containing a condition that it is to be paid, provided the others remain unpaid, and all of them, collectively, amount to one bill, and a payment to the holder of either is good, and a payment of one of the set is a payment of the whole. Edwards on Bills and Notes, 161; Daniell on Neg. Inst. sec. 113.
    The instrument being in the form of a foreign bill, the drawee is not liable on it without acceptance. Morse on Banking, (1st ed.) chap. 10, p. 459; id. (2d ed.) p. 526; Mandeville v. Welch, 5 Wheat. 286; Cowperthwait v. Sheffield, 3 Com. 243.
    The law, as decided by the Supreme Court of the United States, (First National Bank v. Whitman, 4 Otto, 343,) by the highest tribunal of the State of New York, (National Bank v. National Bank, 46 N. Y. 82,) by the Supreme Court of Massachusetts, (Carr v. Security Bank, 107 Mass. 45,) and by the Supreme Court of Vermont, (Bellows Falls Bank v. Rutland County Bank, 40 Vt. 377,) is to the effect, that even a check holder can not sue until after acceptance.
    Messrs. Peckham & Brown, for the defendants in error:
    A banker can not, as against his depositor or his depositor’s check holders, or even creditors, appropriate his depositor’s funds to the payment of debts not due, or of contingent liabilities not yet accrued. National Bank v. National Bank, 68 Ill. 398; National Bank v. Proctor, 98 id. 558; National Bank v. Banking Co. 114 id. 483.
    The holder of a check drawn against funds in bank, may maintain an action thereon against the banker, without acceptance. Munn v. Burch, 25 Ill. 35; Brown v. Leckie, 43 id. 497; National Bank v. County Bank, 80 id. 212; National Bank v. Proctor, 98 id. 558.
    The check being made payable here, is controlled by the laws of this State.
    As to the definition of and distinction between checks and bills, see 2 Daniell on Neg. Inst. sec. 1567, p. 584; 2 Parsons on Bills, 57; Edwards on Bills and Notes, 396; Story on Prom. Notes, sec. 487.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The only question discussed upon this record is, whether the following instrument is a check, namely:

“$2000. [Original.]
State of Indiana.
Banking House of A. & J. C. S. Harrison.
Indianapolis, July 15, 1884.
“Pay this our first check (second unpaid) to the order of William Haerle, $2000. A. & J. C. S. Harrison.
“To Merchants’ National Bank, Chicago, 111.
“No. 130,263.
Indorsed across the face, “$2000, William Haerle.”

The trial court held in the affirmative, and this ruling was affirmed in the Appellate Court.

It is not contended, and could not he, on authority, that the fact that it is drawn by parties in Indiana on a bank in this State, can be held to determine that it is not a check. Parsons, in his work on Bills and Notes, (vol. 2, pp. 58, 59,) says: “They” (i. e., checks,) “are much used here in drawing from one State upon houses of deposit in another.” And Union National Bank v. Oceana County Bank, 80 Ill. 212, and National Bank of America v. Indiana Banking Co. 114 id. 483, disregard the fact that the drawer resides in one State and the drawee in another, upon the validity or character of instruments as checks.

The only reason urged why this instrument is not a check, is the fact that it contains the words, “original” and “(second unpaid.) ” These, it is contended, make its payment conditional. We can not concur in this view. The practice of making more than one copy of an instrument ordering or requesting the payment of money, we concede, is generally confined to foreign bills of exchange; but there is nothing, in our opinion, in the purpose .or effect of that, practice, which should render it inapplicable, under all circumstances, to checks. The purpose is to guard against loss or question in case of miscarriage, the chances of the bill reaching, in due season, the party to whom it is transmitted, being increased by the number of copies. (1 Parsons on Notes and Bills, 58, 59.) But this does not render the instrument a conditional one, in any sense. The whole of the sets constitutes, in law, but one bill, and therefore payment or cancelling of either of the sets is a discharge. (1 Parsons on Notes and Bills, 59.) The essential characteristic of a check is, that it shall be instantly payable on demand. 2 Daniéll on Negotiable Instruments, (3d ed.) sec. 1572; 2 Parsons on Notes and Bills, pp. 59,60. And that demand is effected, unconditionally, the moment either copy is presented.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The Chicago and Alton Railroad Company v. Dennis Glenney.

      Filed at Ottawa November 13, 1886.

    1. Subface watebs—diverting the flow thereof to the injury of lower proprietors—strangers contributing to the injury—liability. Where a railway company diverts the flow of surface water from its natural channel, and conducts it through a ditch it has made along its right of way, and empties it into a slough at a point where it overflows the land of another, the company may be liable for such damages as result from its own acts, but it will not be liable on account of any water that may be brought into such railroad ditch by artificial drains of other parties, made without the sanction or approval of the company.
    2. Same—presumption as to the right of other proprietors to use the ■new channel. And where others owning land along the new water-way so constructed, drain the surface waters from their premises, by ditches, into that of the railway company, whereby the land of a lower proprietor, is injured, it can not, in the absence of proof, be presumed that such parties have the right to turn water into the railroad ditch, or that they did so with the consent of the railway company. • ...

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Mr. G. Beckwith, for the appellant:
    No cause of action can arise to the appellee, unless it appears either that appellant has done some unlawful act, or a lawful act in an unlawful manner, which has resulted in injury to him or his property. It was appellant’s duty to ditch its road-bed. The act of ditching may be placed upon the same footing with good husbandry, and for the results of good husbandry the dominant proprietor is not responsible to the servient proprietor. Peck v. Herrington, 109 Ill. 611.
    Messrs. Wing & Goodspeed, and Mr. John Eeynold's, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by Dennis Glenney, against the Chicago and Alton Bailroad Company, to recover damages for an alleged diversion of water by the company from its natural course, resulting in an injury to a certain portion of a tract of land owned by the plaintiff.

The plaintiff, as appears from the record, owns the northeast quarter of section 4, township 32, range 9, east of the third principal meridian, in Will county. The railroad runs north-east and south-west through this township. Eunning from the north, it enters the township near the half section line of section 3, and it leaves the town on the west line, near the half section Ijne of section 19. The road, as located, does not run over any part of plaintiff’s land. The nearest approach to plaintiff’s land is at the south-east corner, where it is ten rods distant from the quarter corner. Kilgore slough heads about three-quarters of a mile south-east of the railroad, in this township. It runs across the railroad and crosses the plaintiff’s land, running in a north-westerly direction, until it empties into the Claypool run, several miles distant from plaintiff’s land. The land in the locality is generally flat, but at the same time it slopes gradually from the south-east to the north-west. Braidwood is located on sections 7 and 8, some two miles south-east of plaintiff’s land. Between plaintiff’s land and Braidwood there are certain valleys and corresponding ridges, running from south-east in a north-west direction. In the construction of the railroad across these depressions, the flow of water was, to some extent, no doubt, interrupted, and the railroad company, for the purpose of relieving its track of water, fifteen years before the commencement of this action constructed a ditch along the east side of its track, from a point a short distance south of Braidwood, to Kilgore slough. In consequence of the construction of this ditch, the plaintiff claims that the volume of water in Kilgore slough has been increased to such an extent, that in a wet season of the year the slough overflows upon a portion of his land, and that some forty-five acres of the west half of the north-east quarter of section 4 has been seriously damaged; that prior to the construction of the ditch it was fine meadow land, but since that time it has become almost worthless.

On the trial of the cause, among other defences, the railroad company claimed that other persons had constructed drains into the ditch which it had constructed along its line of road, and thus greatly increased the flow of water into Kilgore slough, and that the railroad company could not be held responsible for such increased flow of water. Upon this branch of the case, the witness Eiley, on his cross-examination, testified as follows: “The water complained of comes from off the prairie—off section 17. Section 17 lies south-east of Braidwood. They opened ditches and let the water from section 17 into the railroad ditch. I don’t know who opened the ditches—the railroad company did not. The water from section 17 would not have hurt me or Glenney if it had not been let into the ditch. There is a ditch cut from section 17 down to the railroad ditch. The railroad company did not cut this ditch, and there are other cuts running into this ditch. There is a road near me with ditches on either side, which ditches r.un into the railroad ditch. The railroad company did not dig these ditches. There is a large body of low land to the east of the railroad, through which a road is graded, with ditches on either side, running into the railroad ditch. ”

. Thomas Conners, on the same question, on cross-examination, testified as follows: “There is another inlet close to my house. It was dug by William Henneberry. It runs considerable water into the railroad ditch. All the farmers all along on the east side of the railroad ditch drain to the northwest, and the water is bound to come down into this ditch. There are ditches that drain directly into the railroad ditch along the roads from place to place. The railroad company didn’t dig those ditches. I know that the railroad ditch runs for a number of days with a steady stream of water when we have a heavy rain.”

Other evidence of a like character was introduced on the trial, but it' will not be necessary to refer to it here. We have alluded to the evidence for the purpose, merely, of showing that the record contained evidence of this character upon which an instruction to the jury might be predicated. Upon this branch of the case the defendant asked an instruction, as follows:

“The jury are further instructed, that although they may find, from the evidence, that the defendant, in the construction of its road, excavated a ditch on its own right of way, along the east side of its track, through which water, at certain seasons of the year, is discharged and carried upon the lands of the plaintiff, the defendant is not liable for damages •on account of any water that may be brought into such ditch and discharged upon the land of the plaintiff by artificial ■ditches extending into said railroad ditch, and made without the consent of the defendant. The defendant is only liable to the plaintiff for such damages as may ensue from its own acts or the acts of its agents. And if the jury shall further believe that the waters from adjoining lands have been conducted into such railroad ditch by artificial ditches made without the consent of the defendant, thereby increasing the flow of water through such ditch and upon the plaintiff’s land, the •defendant is not liable to the plaintiff for damages caused by water artificially brought into its ditch from adjoining lands without its consent. ”

This instruction was refused, and the ruling upon it presents one of the questions for decision.

We are aware of no rule of law under which it can be held that the appellant is responsible for damages which did not result from its own act or omission, but arose from the act of another. There was evidence before the jury that much of the water complained of, which flowed down the railroad ditch, had been conducted therein by artificial ditches constructed by other parties, with which the railroad company was in no manner connected, and the purpose of the refused instruction was to inform the jury that the company was not liable for damages caused by another party. The principle announced in the instruction was clearly correct. If the appellant diverted the flow of water from its natural channel, and conducted it through a ditch which it had constructed, and emptied it into Kilgore slough at a point where it might overflow appellee’s lands, it may be liable for such damages as result from its own acts. But upon what principle, it may be asked, is it to be held responsible for damages caused or produced by other parties ? It can not be presumed that any person south and east of the railroad in this locality had a right to turn water into the railroad ditch, or, if they did so, that it was done by and with the consent of the railroad. No such presumption prevails. We regard it as a plain proposition, that whatever .damage was done by turning of water into this ditch by other parties, without the sanction or approval of appellant, they alone must be held liable. The instruction was correct, and the court erred in refusing it.

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

Judgment reversed.