text:
      (In the Circuit Court of Cook County.)
    People of the State of Illinois ex rel. vs. James Pease, Sheriff.
    (October 26, 1898.)
    1. Maxims. Under the maxim “Salus populi, suprema lex” the-state may in the exercise of police powers deprive the citizen of his property without compensation or legal procedure.
    2. Police Power — Extent of. Under the mere guise of police regulation personal rights and private property cannot be arbitrarily invaded and the determination of the legislature is not .final or conclusive.
    3. Constitutional Law — Validity of Law Preventing Resale of Railroad Tickets. The Illinois act of April 19, 1875, making it unlawful for any person not possessed of authority from railroad companies to sell, barter or transfer railroad tickets, is not a valid exercise of the police power, inasmuch as it does not affect the public health, morals or public welfare.

      4. Public Use — Regulation of Sales of Tickets by Public Corporations. It is an exercise of the right to control quasi-public corporations for a legislature to impose lawful conditions upon the original sale of a ticket by a transportation company to a purchaser, but once a ticket has been issued entitling a holder to ride and therefore transferable by delivery, any legislation in reference to the future disposal thereof is not an exercise of the power to regulate and control corporations impressed with a public duty but a bold and unwarranted interference with the property rights of citizens.
    • 5. Title of Act as Indicating Intention of Legislature. The aim and scope of a legal enactment is always either generically or specifically set out in its title, and an act entitled “to prevent frauds upon travelers and owners of conveyances for the transportation of passengers” is not an act to regulate or control transportation companies, but an act passed in the interests of public morals to suppress fraud — a clear and unmistakable intent to exercise the police power.
    6. Constitutional Law — Private Rights. Any law which declares it a crime for one citizen to sell to another that which is not injurious to the public health, morals or general welfare, is not only a dangerous and unjustifiable interference with the citizen’s personal rights and liberty, but a violation of the constitution of this state. Burdieh v. People, 149 111. 600, distinguished.

    Petition for a writ of habeas corpus. Heard before Judge Edward P. Dunne. The facts are stated’in the opinion of the court.

      Richard Prendergast, attorney for relators.

      C. S. Deneen, state’s attorney, and W. S. Forrest, attorneys for defendants.
   Dunne, J.:—

Relators have been indicted in the criminal court of Cook county charged with violation of section two of what is commonly called the “Anti-Scalper Act” approved April 19,1875, in force July 1st, 1875. The section reads as follows: “That, it shall not be lawful for any person not possessed of such authority (to-wit, a certificate of authority to sell tickets, passes, etc., attested by the corporate seal of the owner of a railroad or steamboat mentioned in the first section of the act) so evidenced, to sell, barter or transfer for any consideration whatever, the whole or any part of any ticket or tickets, passes, or other evidence of the holder’s title to travel on any railroad or steamboat. * *”

In the case at bar these relators have filed a petition for habeas corpus, in which the indictments are attacked on the sole ground that the law in question is unconstitutional and void.

To arrive at a determination of this question, it becomes important upon the threshold of the inquiry to determine what is a “ticket, pass or other evidence of the holder’s right to travel on any railroad or steamboat.” Special counsel for the state and railway corporations expressly disavows the contention that “a railway, ticket is not personal property” (p. 76 of his Brief) but in the next breath says that it is not “a vendible chattel,” but something in which the lawful owner has “property rights.” How a person can have property rights in that which is not property this court cannot conceive. The concession by counsel that the lawful owner has property rights in the ticket carries with it the admission that such a pass or ticket is property. But counsel argues it is not a vendible chattel. In what sense? If the law under consideration is a valid and constitutional law, counsel is correct, for the law itself makes such tickets non-vendible. This it but begging the question. Strike this law from the statute books or hold it unconstitutional. Does counsel contend, in the absence of such a law, that a railway ticket or pass entitling the holder to travel is not vendible or negotiable? If such is his position he has not sustained the same either by logical argument or sound legal precedent.

Prior to the passage of this act, tickets and passes entitling the holder to ride upon a railroad or steamboat in the state of Illinois were as vendible and negotiable as a check or note payable to bearer, a horse, a cow, or any other chattel. The very object and aim of the act was to deprive them of their vendibility and make their sale a criminal offense.

In the absence of this statute, a- railway ticket or pass entitling the holder to ride was a something in which, as counsel for the state admits, the holder had property rights. One of these property rights, in the judgment of this court, was the right to sell it in the open market for the highest price. That property right is sought to be taken away from the holder by this law, for while it provides for the redemption of such a ticket it fixes an arbitrary price for the same and deprives the holder of the right to sell in market overt. Fixing an arbitrary price upon a man’s property and compelling him to sell at that price, is as clearly a violation of property rights as taking it from him without compensation.

Section 2, art. 11, constitution of Illinois, declares that “no person shall be deprived of life, liberty or property without due process of law.” The right to buy and sell merchandise, chattels and other articles of value in market overt and at private sale, is property. But it is contended by the state that under the maxim, “8alus populi, suprema lex” the state may in the exercise of police powers deprive the citizen of his property without compensation or legal procedure.

No lawyer will dispute this contention. "Where the possession of property, or the retention of his personal liberty become a menace to the health, morals or general welfare of the community at large, the state may deprive the citizen of both or either.

But in all such cases, it must be clear that the law which deprives the citizen of his property or liberty is within the police powers of the state. In other words it must be a law passed for the protection of the health, morals or general welfare of the community at large. How is this question to bo determined? "What tribunal is to decide whether or not a statute falls within or without the police power of the state ? In the first instance, undoubtedly, the legislature. The legislature primarily also determines whether a law is or is not constitutional, for it cannot be presumed that a legislature would enact legislation which it knew to be unconstitutional and therefore nugatory. Nor can it be presumed that a legislature would pass a law depriving citizens of their private property without due process of law which would be unconstitutional unless it believed that in so doing it was exercising the police power of the state. In both cases the legislature primarily decides that the laws are constitutional and within the police power respectively.

Is the decision of the law-making power in either case final and decisive? Most certainly not. If such were the case, no laws could be held to be unconstitutional by the courts; nor could any court have the right to determine the question as to whether or not any given law fell within or without the police power of the state. It would suffice for the legislature to declare in the enactment — no matter what might be its scope or subject-matter — this law is passed in the exercise of the police power of the state, or this law is passed for the preservation of public morals.

This seems to be the position taken by special counsel for the state. He argues that the legislature of Illinois in its wisdom has determined that the law was necessary for the preservation and protection of public morals and for the prevention of fraud and that its enactment would secure both, and that no court has a right to go behind and examine this finding. That such is not the law is shown by the fact that able and industrious counsel and conscientious and painstaking judges have for years past been endeavoring to ascertain and determine the limits and scope of the police power of the state, and declaring whether enactments are within or without its scope, and are so far from defining exact limits to the police power, as are the arctic explorers from the north pole.

Prentice in his recent work upon Police Powers, plainly recognizes the right of a court to determine whether any specific enactment falls within or without the police power. On page 6 of that work in speaking of the police power which he terms a “law of necessity,” he says: “The law of necessity has been stated to be an exception to all human ordinances and constitutions, yet has been frequently decided to be subject to the law of reason and subject to the control of the courts.” Again on page 7 the same author cites with appro val the statement of Chief Justice Taney in the License GasesJ “that this power of government (to-wit, police power) inherent in every sovereignty * * * is not an uncontrollable or despotic authority, subject to no 'limitation exercisable * # * at the whim of the legislative body.” Again on page 9 of his work' he recognizes the same right of the court when he says: “The limits (i. e. of the police power) are not yet reached while we still advance, but the underlying principles by which the reason or unreason, or the constitutional limits of the authority claimed or used, may be investigated or judged, are now fortunately less obscure.”

The same author, in speaking of the right of a state to protect itself under the police power from the introduction within its limits of paupers, vagrants, criminals, etc., declares (p. 10) : “Such a right can only arise from a vital necessity for its exercise and cannot be carried beyond the scope of that necessity.” Further on in the same work, the author de- , dares: “we also see these police powers themselyes under limitation. Besides judgment of common right and reason, ’ they may be tried in our country under two Constitutions, that of the United States and that of the State in which the question is raised.” . Page 268.

In the case In re Jacobs, 98 N. Y. 98, 110, the court declares: “Under the mere guise of police regulations personal rights and private property cannot be arbitrarily invaded and the determination of the legislature is not final or conclusive: If it passes an act ostensibly for the public health and thereby destroys or takes away the property of a citizen or interferes with his personal liberty, then it is for the courts to scrutinize the act .and see whether it really relates to and is convenient and appropriate to promote the public health. * * * Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law. ”

Even counsel for the state at a different place in his very exhaustive printed argument, unguarded — it appears to the court — admits the right of the courts to determine whether or not a statute falls within the police power of the state when he quotes approvingly the following language used by Justice Field in the Powell case (Powell v. Pennsylvania, 127 U. S. 678): “If that which is forbidden is not injurious to the health or morals of the people, if it does not disturb peace and menace their safety, it derives no validity by calling it a police or health law.” When Justice Field used this language, he had under consideration and was endeavoring to determine whether or not a certain legislative act was within the police power of the state. If the legislature had the right conclusively and finally to determine that its legislation was within the police power of the state, why this language, and why Mr. Forrest’s commendation of the same.

This court is clearly of the opinion that when an act of the legislature, passed ostensibly in the exercise of the police power of the state, is submitted to a court for its construction in a proceeding in law or equity, that such court has a. right to determine whether or not it is a legitimate exercise of the police power, particularly when, as in the case under consideration, the legislation in question has the effect of securing certain rights to one class of citizens and denying them to all other citizens, and diminishing the value of what was, prior to the passage of the act, legitimate, lawful and freely negotiable property.

Is the act in question a legitimate exercise of the police power of the state? If the provisions of the act carried out the intention expressed in the title or caption, it would unquestionably be within that power. An act whose provisions in fact dealt with and prevented “frauds upon travelers and owners of any railroad, steamboat, or other conveyance for the transportation of passengers” as declared in the title of the act, would clearly be a legitimate and proper exercise of the police power. Let us examine the act and ascertain what provisions it contains concerning frauds upon travelers or transportation companies. Sec. 1 provides that transportar tion companies shall provide all their ticket agents with written certificates of agency attested by the corporate seal. Sec. 2 makes it unlawful for any person not having such certificates to sell — what? Bogus tickets? Forged tickets? Expired tickets? Tickets limited to a particular person? 'No; none of these. It makes it unlawful for any person not having such certificates of authority to sell “tickets, passes or other evidence of the holder’s title to travel” and these alone. In other words it makes it unlawful to sell a ticket .good' in the hands of any one who honestly acquired it and which, up to the time of the passage of the law, was a vendible, merchantable commodity. In what possible manner can the making of such articles as a ticket, good in the hands of its holder for a ride upon a railroad, unmerchantable and non-salable, tend to the prevention of fraud upon travelers ? Does the sale of such a ticket injure the public health, if it be unaffected the fever germs or the public morals, unless upon it there appears what is unchaste and lascivious? Is it- in any way inimical to the public welfare to have such a ticket sold by one citizen to another? After, and as the result of most careful deliberation, this court cannot conceive how the sale of a “ticket, pass or evidence of holder’s title to travel” even in the remotest degree injures the public health, morals, or public welfare. The language of Judge Allen in Thomas v. Wabash R. R. Co., 40 Fed. 126, 133, is singularly appropriate to this law. Speaking of another law with a similarly deceptive title, he says: “The * * * act * * * has not only a false and deceitful title, but its purpose was to confer special privileges upon certain corporations and deny to others of the same class the exercise of the same rights. * * * The act is in conflict with the 22nd section of the fourth article of the constitution of Illinois. Frye v. Partridge, 82 Ill. 273; People v. Cooper, 83 Ill. 586; People v. Meech, 101 Ill. 200; Millett v. People, 117 Ill. 305, 7 N. E. 631; Cooley’s Const. Dim. 389-396.” To sustain such a law as the exercise of the police power would amount to striking out of our constitution the second and thirteenth sections of the Bill of Rights, and overthrow the last barrier between personal rights and corporate aggression.

But it is contended by counsel for the state and railway corporations that there is another ground aside from the claim that the law is a legitimate exercise of the police power upon which it must be held that the law is a valid and legal ■enactment, to-wit, that it is a law framed for the regulation of a business impressed with a public duty and performing certain quasi-public functions.

This contention has been pressed with great force and ■ability by counsel and is worthy of serious consideration. That corporations carrying on a business of quasi-public character, such as the operation of a railroad, ferries, canal, etc., are subject to legislative control and regulation, cannot be doubted, and if the law in question was passed for the purpose of, and did in fact control or regulate the management ■of railroads, steamboats and other means of transportation, it should be upheld by the courts.

Let us examine the law first in relation to the intention of the legislature, and second, as to the effect of the law with reference to the claim that it is a regulation of the business ■of transportation.

The legislature which passed the act probably knew the aim and intent of the act better than either court or counsel, and the aim and scope of legal enactment is always either gen■erically or specifically set out in its title. Following the usual practice the legislature of Illinois declared the aim and :scope of this act in its caption. It is there declared to be an act — not to regulate or control transportation companies, but ■an act “to prevent frauds upon travelers and owners of conveyances for the transportation of passengers. ’ ’ In other words, the legislature enacting the law declares it to be an ■act passed in the interests of public morals to suppress fraud —a clear and unmistakable intent to exercise the police power. If it was intended to be a law for the regulation of transportation companies, the legislature would have so declared it in its title. It was clearly not the intention of the legislature to regulate transportation companies, and in sections two and three of the act, which are the vital sections thereof, and the -sections under which relators have been indicted, no pretense is made of regulating them. These sections do not apply in letter or spirit to transportation companies, but cover and apply to all citizens of the state in general, no matter whether ■they are engaged in the transportation business or any other-business. It lays the heavy hand of law not only on ticket brokers, who are unconnected with transportation companies,, but upon any and every citizen who having honestly come by a ticket entitling its holder to travel, honestly attempts toe dispose of the same.

It would undoubtedly be an exercise of the right to control quasi-public corporations for a legislature to impose lawful conditions upon the original sale of a ticket by a transportation company to a purchaser, but once a ticket has issued entitling a “holder” to ride and therefore transferable by der livery, any legislation in reference to the future disposal ,thereof is not an exercise of the power to regulate and control corporations impressed with a public duty, but a bold and unwarranted interference with the property rights of citizens. The legislature has the undoubted right to control and regulate horse car companies. Yet if the legislature under the pretended exercise of this right should declare it to be a criminal offense for a horse dealer or other citizen to sell a. horse which had been honestly acquired by purchase from the company, would counsel contend that such a law was constitutional ? That he would not is shown by his own argument. On pages 49 and 50 of his brief in sustaining his position that the act is not in contravention of the Interstate Commerce Act, he declares: “A ticket offered for sale to or by a ticket broker is, when so offered, wholly separate and distinct from the function it performs in the hands of a traveler on a train and depending upon it as evidence of his right to-transportation. It is, when so offered for sale, merged in the common mass of the vendible chattels in the state (if we consider it such a chattel) to the same extent as is any other-article sold or offered to be sold by or to an inhabitant of the-state. When so offered, even if we consider it a chattel, it is like, for instance, a piece of cloth bought from a merchant in a foreign nation by Marshall Field or from an inhabitant of Illinois by Marshall Field, and by Marshall Field exposed for sale.”

The court cannot state its view of the condition of a ticket “entitling holder to ride” after it has once been purchased from a transportation company and the holder thereof, in clearer language than has Mr. Forrest in "the foregoing quotation. Sections 2 and 3 of this act under which relators are indicted do not regulate or control in any way transportation companies, and they cannot be sustained under the claim that they were enacted for the purpose of regulating corporations impressed with a public duty. They do, however, affect to control the whole body of the citizens of the state in imposing restrictions and limitations upon their right to buy and sell property. This the law-making power can only do in the legitimate exercise of the police power, and, as this court has theretofore declared, "the law in question does not fall within the limits of the police power.

In arriving at this conclusion, the court has not failed to examine and give full consideration to the eases cited by the counsel for the state, which declare similar laws valid and constitutional. The case of Burdick v. People, 149 Ill. 600, might in the absence of the extraordinary record disclosed in the majority and dissenting opinions in In re Burdick, 162 Ill. 48, be conclusive in favor of the state’s position. But in view of the fact that the majority opinion in the latter case declares (p. 50) that, “Along with the petition, numerous affidavits were filed which tended to prove the truth of the statements made in said petition, that the petition upon its face discloses that the case of Burdick v. People, reported in 149 Ill. 600, 'was outrageously fraudulent and collusive, that the majority of the court did not find it necessary * * * to weigh the testimony * # * for the purpose of determining whether or not the prosecutions against George Bur-dick were fictitious and collusive,” (p. 51)., that the minority of the court did consider and weigh the evidence, and were of the opinion that the eases were fraudulent and collusive, and that the majority opinion contains the singular and unusual declaration that the “opinion of the court in the Bur-dick eases are conclusive only as between the parties in those cases, and are no estoppel as between the people of the state of Illinois and the petitioners” (p. 58 of majority opinion); this court does not consider itself bound by the reasonings and conclusions in the opinion rendered in Burdick v. People. The opinion cited in Commonwealth v. Wilson, 14 Phila. 384, was rendered by a single judge — Ludlow—sitting in the court of quarter sessions. He holds that an enactment similar to the Illinois statute was within the police powers, but cites no authorities in support of his holding, the only authorities cited being in support of the position that a state . may exercise its police powers notwithstanding that provision of the federal constitution giving to congress the right to regulate commerce between the states.

In Fry v. State, 63 Ind. 555, the supreme court of Indiana declared an act in some respects similar to the Illinois act a legitimate exercise of the police power and a valid law, although the title of the law, to-wit, “An act regulating the issuing and taking up of tickets and coupons of tickets by common carriers, and defining the rights of holders thereof, and other matters in relation thereto,” and the provisions of the act regulating the same show that it was passed under the power of the state giving it the right to regulate quasi-public corporations impressed with public duties, rather than in the strict exercise of the police power. The Indiana act contains several regulations imposing restrictions upon transportation companies and favorable to the public, such as requiring restrictions upon the rights of ticket holders to be printed in nonpareil type and the redemption of tickets at each agency, and in these respects much more nearly approaches the legitimate exercise of the power to regulate municipal corporations than the Illinois law, and these considerations doubtless had their effect upon the court in passing upon the law in its entirety.

In State v. Corbett, 59 Minn. 345, the supreme court of Minnesota, two of the five justices being absent, have also upheld a similar law as a valid exercise of the police power upon the authority of the Fry and Burdick eases, although the title of the act, to wit: “An act to regulate the sale and redemption of transportation tickets of common carriers and to provide punishment for the violation of the same, ’ ’ shows it was the intention of the legislature to regulate common carriers rather than to enforce police power in its strict sense.

The appellate division of the supreme court of New York has also recently, in the case of People, ex rel. Tyroler v. Warden, 26 App. Div. 228, 50 N. Y. S. 56, following and relying on the Burdick, Corbett and Wilson cases, held a similar law in that state a legitimate exercise of the police power, and although the court has carefully considered the arguments and reasoning contained in the opinions rendered in those cases, it cannot arrive at the conclusion reached by those courts, that the sale of a ticket entitling the holder thereof to ride, by one citizen to another, tends in any way to injure the health, morals or general welfare of the community, and that legislation making such sales a criminal offense is an honest and legitimate exercise of the police power of the state. Until the supreme court of this state, upon a ease presented to it by parties who are in fact, adversely interested in the outcome, shall declare such law within the police power of the state, this court holds to the view that this law, or any law which declares it a crime for one citizen to sell to another that which is not injurious to the public health, morals or general welfare, is not only a dangerous and unjustifiable interference with the citizen’s personal right and liberty, but a violation of the constitution of this state. Nor in holding these views does this court stand alone. In Austin v. Murray, 16 Pick. 121, 126, it is said: ‘ ‘ The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health, when it is manifest that such is not the object and purpose of the regulation.” And Justice Field, in the celebrated Slaughter House Cases, 16 Wal lace, 36, says: “Under the pretense of prescribing a police regulation, the state cannot be permitted to encroach upon .any of the just rights of .the citizen which the constitution intended to secure against abridgment.” And Judge Colt, in Watertown v. Mayo, 109 Mass. 315, 319, declares: “The , law will not allow rights of property to be invaded under the ■guise of a police regulation for the preservation of health or protection against a threatened nuisance, and when it appears that such is not the real object and purpose of the regulation, courts will interfere to protect the rights of the citizen.”

In the language- of the New York Court of Appeals, in Re Jacobs, 98 N. Y. 98, 115, which was also a habeas corpus case which called in question the constitutionality of a police law: “When a health law is challenged in the courts as unconstitutional, on the ground that it arbitrarily interferes with personal liberty and private property without due process of law the courts must be able to see that it has at least in fact some relation to the public health. * * * This we have not been able to see in this law, and we must, therefore, pronounce it unconstitutional and void. In reaching this conclusion we have not been unmindful that the power which courts possess to condemn legislative acts which are in conflict with the supreme law should be exercised with great caution, and even with reluctance. But, as said by Chancellor Kent (1 Com. 450): ‘It is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the 1 community from undue and destructive innovations upon their charter rights.’ ”

(The court remanded the relators, pursuant to the rule laid down by the state supreme court in People v. Jonas, 173 Ill. 316, that the constitutionality of a statute could not be considered in a habeas corpus proceeding.)

NOTE.

The above case is referred to in a note upon' anti-ticket scalping laws in 4 L. R. A. (n. s.) 480, collecting the cases in the lower lilinois courts holding the Illinois act unconstitutional. See, also, the other cases in this volume upon this subject. People v. Walser, 3 Ill. C. C. —; People ex rel. Geis v. Pease, 3 Ill. C. C. —; People ex rel. Frank v. Pease, 3 Ill. C. C. —; People ex rel., Marks v. Pease, 3 Ill. C. C. —; People v. Ullman, 3 Ill. C. C. —; People v. Gilbert, 3 Ill. C. C. 61.

The case of Burdick v. People, 149 Ill. 600, which many of the above cases refused to follow, was, however, cited with approval by the supreme court in City of Chicago v. Oppenheim, 229 Ill. 317, 319, 321 (1907); and in Steele v. People, 231 Ill. 340 (1907), where the state law prohibiting resales of theater tickets at an increased price was held unconstitutional and void. — Ed.

       5 How. 588. — Ed.

         Burdick v. People, 149 Ill. 600, distinguished.


source: Caselaw Access Project

author: Tuley, J. Judge Tulby :

license: Public Domain

text:
      (Circuit Court of Cook County. In Chancery.)'

    Daggett vs. City of Chicago, et al.
    (June 23, 1892.)
    1. Plats — Effect of Platting and Dedication of Street by State Agency. By the platting of a subdivision and dedicating a street therein, the board of canal commissioners vested in the City of Chicago the title in fee of said street to be used as a public street for the benefit of the people at large.
    2. Abutting Owners — Standing in Equity to Prevent Diversion of Use of a Street or Park. An owner of property abutting upon a public street or park has a peculiar interest as such owner of property distinct from that of the public at large which entitles him to the aid of a court of equity to prevent the appropriation of such street or park to private uses or to any other public use distinct from that for which the same was dedicated.

      3. Same — Where Diversion Benefits Instead of Injures Complainant. It is no defence to the bill of an abutting owner to prevent the diversion from its public use of a street or park upon which his land abuts, that such diversion will benefit instead of injure him.
    4. Laches — Neglect to Come Promptly into Court — Allowing Defendant to Expend Large Amount of Money. When complainant has knowingly laid by and allowed the defendant to expend a large amount of money on a building in a public park as so authorized to do by the legislature he will be estopped in a court of equity to insist upon an injunction to preserve such of his easements as he claims the building does or will interfere with, by his laches in not moving sooner.
    5. Injunction — Discretion of Court — Balance of Convenience. The issuance or continuance of an injunction is to some extent a matter of discretion in the court and where the right infringed will create no irreparable injury or the injury is slight, that discretion is often exercised against the issuance of the writ. The court will balance the loss or inconvenience and if the issuing of the writ will cause much loss or' inconvenience to the defendants, and hut slight benefit to the complainant, it will refuse to use the court’s strong arm to protect the complainant hut will leave him to an action at law.
    6. Parks — Person in Possession Under Valid Legislative Act-Province of Court of Equity — Remedy for Consequential. Damage. A party acting under legislative authority constitutionally exercised will not he interfered with in his possession at the suit of a private property owner who is consequently damaged by reason of such possession being taken and acts done under such legislative authority. It is not the province of a court of equity in such a case to interfere to thwart the legislative will, but the aggrieved party should he left to his remedy at law.
    7. Municipal Corporations — Property Held in Governmental Capacity — Control by Legislature — Power to Change Use. The legislature has full control over the streets and all the property of a municipality held in a governmental capacity and it has the power to change or alter the public use for which such property may be held in trust especially where such changed public use is of the same nature or kind.
    8. Parks — Use fob Public Purposes — Erection of Art Galleries. It is no perversion of the uses of a public park to erect a building therein devoted to art purposes filled with paintings and works of art designed to satisfy the aesthetic nature of the people who may visit the park.
    9. Same — Control by Private Corporation. The mere fact that an art gallery erected in a public park under the control of a private corporation, such corporation not being organized for pecuniary profit, does not detract from the public character of the erection where without cost to the city either in the original erection or the subsequent maintenance, the gallery is filled with art treasures and open to the public free of charge two full days each week together with holidays and Sundays.
    Motion to dissolve or modify an injunction. Heard before Judges Tuley, Horton, Burroughs and Tuthill.

      S. K. Dow & J. Burnham, for complainant.

      John S. Miller, corporation counsel, for city of Chicago.

      John P. Wilson, for Chicago Art Institute.

      Edwin Walker, for World’s Columbian Exposition.
   Tuley, J.

(Horton and Burroughs, JJ., concurring) : — ■

We can not enter into an extended discussion of the many points arising in this case, and shall only notice such as we deem necessary for the determination of the present motion.

It appears that in 1836 the Board of Canal Commissioners, representing the state of Illinois, made a subdivision of fractional section 15, east of State street, and between Madison and Twelfth. By the plat of said subdivision, the west line of Michigan avenue, from Madison street to Twelfth street, was fixed as it is at present found. The land lying between that west line and Lake Michigan, from Madison street to Park Row, just north of Twelfth street, was marked on the plat as “Michigan avenue.” The meandering line of the Lake Shore made said plat of ground called Michigan avenue irregular in width, varying from less than ninety feet in width in front of Adams street, to about 200 feet at Park Row.

The first question that arises, is what title or interest did the municipality of Chicago take in said land, lying between the west line of Michigan avenue and the lake shore. By the act of the canal commissioners making such plat and dedication, the city became vested with the title in fee of said street marked “Michigan avenue,” in trust, to be used as a public street for the benefit of the public at large. It holds such fee in its governmental capacity as a state agency. This is clearly so held in the case of the City of Chicago v. Rumsey, 87 Ill. 348; and Zinc Company v. La Salle, 117 Ill. 411; Stack v. East St. Louis, 85 Ill. 377; Lloyd v. Mayor, 5 N. Y. 369; West Chicago Park Board v. McMullen, 134 Ill. 170.

The city of Chicago subsequently made said street between Park row and Madison street, by ordinance, ninety feet in width, and improved it as such, and for more than twenty-five years last past has treated the original, and made the land lying east of said ninety foot street, and between said street and the right of way of the Illinois Central Railroad (which said right of way was distant from the said west line of Michigan avenue 400 feet) as a public park or open common, commonly known as Lake Park or the Lake Front.

It appears from the evidence that in 1873, the city of Chicago permitted the erection upon said land east of said 90 foot street of the building known as the Interstate Exposition Building, in which building there has been up to the year 1892 annual industrial exhibitions, horse shows, concerts and various amusements permitted. The city has also allowed and permitted the occupation of a portion of it as a public armory, and at no time since that date has it been free from buildings.

In the summer of 1889, one Warren F. Leland, owning property at the corner of Jackson street abutting on said Michigan avenue, filed the bill in this ease on behalf of himself, and all other property owners similarly situated, seeking to restrain the city of Chicago and the Interstate Industrial Exposition from permitting any person or corporation to erect a building for an electrical plant, or any other structure on the said land east of Michigan avenue, and from allowing or giving license to any person to take possession of and occupy any portion of said land, and that upon the hearing the injunction might be made perpetual, and that the Exposition building then upon said land should by mandatory injunction be decreed to be removed. A temporary injunction was granted upon the recommendation of a master according to the prayer of the bill, which injunction the defendants, the said Art Institute, and the said World’s Columbian Exposition now seek to have modified so as to permit - the erection by the Art Institute and said World’s Columbian Exposition of a permanent art building on the site formerly occupied by the said Interstate Exposition Building. The present complainant, Sarah E. Daggett, shortly after the commencement of said suit, became a co-complainant, and during the present month the said World’s Columbian Exposition and the said Art Institute have become co-defendants and filed their answers herein. Numerous affidavits have been read in support of the bill, and also in support of the answers.

It appears that, in the year 1890, the project of holding a World’s Pair in Chicago in the years 1892 and 1893, was started, and the congress of the United States, by act of April 25th, of that year, provided for the celebration of the 400th anniversary of the discovery of America by holding a world’s fair at the city of Chicago, with power to the commission thereby appointed to accept such site as might be selected and offered by a corporation organized under the laws of the state of Illinois now known as the World’s Columbian Exposition. It appears that the “World’s Exposition of 1892,” now the “World’s Columbian Exposition,” was incorporated under a general law of the state of Illinois, on the 9th of April, 1890, with power providing for the holding of the world’s fair in the city of Chicago, and preparing a site and constructing the necessary improvements and buildings thereon. It further appears that in August, 1890, at a special session of the legislature of the state of Illinois, a special act was passed entitled “An act in relation to the World’s Columbian Exposition,” in which, among other things, the authorities having in charge the management of said World’s Pair were authorized to use and occupy all of said lands or rights therein of the state of Illinois, whether submerged or otherwise, within the present limits of the city of Chicago, or adjacent thereto, which might be designated and selected by such authorities as the site for holding said world’s fair. Authority was also given to fill and reclaim lands adjacent to any site so selected, such submerged lands so filled and reclaimed to be maintained as a public park after they ceased - to be used for the purpose of such world’s fair.

The act clearly gave the power to the authorities having in charge the world’s fair, the corporate authority of the city of Chicago consenting thereto, to take possession of that portion ■of the land so dedicated in 1836 as Michigan avenue, lying east of the present Michigan avenue, and commonly known as the Lake Park, or Lake Front, and of all submerged lands adjacent thereto that might be necessary for the purposes of the fair, the submerged lands which might be filled and reclaimed to remain a part of the said public ground without prejudice to any private rights therein as the same existed prior to the passage of the act. This act contained the following proviso: 1 ‘ That the buildings erected upon said public ground, or any enlargement thereof, may be removed and disposed of by the authorities erecting the same, within one year from and after the close of said exposition unless otherwise arranged and agreed between the corporate authorities of said city of Chicago, and the authorities who erected the same; and if the said city of Chicago shall agree to purchase said buildings, said authorities shall not ask or obtain from said city for said buildings a sum greater than the actual cost of building the same.” The act also authorized a proceeding by the attorney-general or the state’s attorney of Cook county, upon the request of the authorities having charge of the said World’s Columbian Exposition to apply to a court, and have any right of easement or interest of the abutting property owners condemned and compensation made therefor under the act concerning the right of the exercise of eminent domain, but that no such private right or easement of property owners should be -condemned for a longer term than five years.

It appears that on the 15th day of September, 1890, the World’s Columbian Exposition made application to the conporate authorities of the city of Chicago for permission to use the said land so dedicated and known as the Lake Park and the submerged land adjacent thereto for the purposes of said world’s fair, or Columbian Exposition, and an ordinance was passed by the city of Chicago, granting the use of said Lake Park, commonly called Lake Front, for the purposes of the world’s fair. The Columbian Exposition subsequently determined that the main site of the world’s fair should be Jackson Park, but that it would erect an art building upon said Lake Front. It appears thereupon the Art Institute of Chicago, a corporation organized not for pecuniary profit, proposed to the Columbian Exposition to unite in the construction of an art building to be erected on said Lake Front north of Jackson street, which, after the fair, might remain as a permanent memorial art building, the World’s Columbian Exposition paying $200,000, which was the estimated cost of a temporary building, for that purpose, and the Art Institute providing the further sum of $400,000, making the cost of the permanent building $600,000. That the art building should be erected on the site then occupied by the “Interstate Industrial Exposition Building,” which should be torn down and removed; the building so erected to be used by the World’s Columbian Exposition for world’s fair purposes, and to be under its control until the close of the world’s fair. An agreement to that effect was entered into between the World’s Columbian Exposition and the Art Institute, the Interstate Industrial Exposition consenting thereto.

At the time this proposition was made and accepted,- it appears that the World’s Columbian Exposition was in the possession and control of the Interstate Industrial Exposition Building, and of said Lake Park or Lake Front. It appears that on the 30th of March, 1891, the city of Chicago passed an ordinance, giving authority to the Art Institute of Chicago, to erect a permanent art building on the site of the former Interstate Exposition building, at its own cost, the title and ownership of the building to be vested in the city of Chicago, without any compensation being paid or allowed by the city to the World’s Columbian Exposition, the Art Institute or any person or corporation therefor, and the use and occupation of said building when erected should be vested in the Art Institute of Chicago-, and the objects for which the Art Institute was incorporated; that as soon as the World’s Columbian Exposition should surrender the building, the Art Institute should transfer to the building, its museum, library and collections of art; that the exhibition halls of the building should be open to the public free of charge from nine o’clock till five o’clock on Wednesdays and Saturdays of each week and on all legal and public holidays, and from one to five o ’clock on each Sunday, and that all teachers and professors of the free public schools in said city of Chicago should be admitted to all the advantages afforded through its museum, library apparatus and collections or otherwise for study, research and investigation, free of any charge, the said art building to be managed, controlled, kept in repair, and carried on by said Art Institute without charge to the city of Chicago.

It appears that the officers of said Art Institute Association obtained the consent of all the owners of property abutting on said portion of Michigan avenue to the tearing down of the old exposition building and the erection thereon of the permanent art building, except the complainant, who owned a frontage of 65 feet in said half mile of frontage, and also one Stafford, who owned a reversion in a small lot after the expiration of a ninety-nine years’ lease. The evidence tends to show that the officers and managers of said Art Institute were led to believe by the declarations of the husband of complainant (he assuming to act as her agent), that complainant would join with the other property owners and give such consent as they had done to the removal of the Interstate Exposition building and the erection of the art building. The removal of that exposition building was commenced about the month of November, 1891, and the contracts for the erection of the art building were entered into on the 4th of February, 1892.

It further appears that the complainant notified by letter, received on the 6th day of February, two days after the letting of said contracts, one of the directors of the said Art Institute, that she would not consent to the erection of a permanent art building upon said Lake Park, and that said director communicated such notice to the board of directors within a few days thereafter.

It appears by the evidence that no action was taken by complainant in court to prevent the continuation of the work being done by said Art Institute, by any motion, order, rule for contempt or other proceeding until a large amount of money had been expended by said Art Institute; that the first action in court being taken by complainant on the 3d of April, 1892, by a rule to show cause made on the defendants therein why they should not be punished for contempt for violating the injunction of this court in proceeding to erect the said art building.

The evidence shows that complainant’s property will not be damaged, but on the contrary will be largely benefited by the erection of said art building. We hold that an owner of property abutting upon Michigan avenue and this Lake Park has a peculiar interest as such owner of abutting property, distinct from that of the public at large, which entitled such owner to the aid of a court of equity to prevent the appropriation of such street or park to private uses, or to any other public use distinct from that for which the same was dedi- - cated. That to a bill of such owner of abutting property, the defendants, whose acts are sought to be enjoined, can not defend upon the ground that their wrongful acts if they be such, will benefit instead of injure the complainant.

We hold that the evidence in this case tends to show some knowledge of the complainant of the acts of the defendants, the city of Chicago, the Art Institute, the Columbian Exposition and the Interstate Exposition, touching the removal of the old exposition building and the erection of said permanent art building, and that complainant has been guilty of laches in not moving'sooner in court, so as to prevent the expenditure of money by the Art Institute. While such laches of complainant could not be held to be a waiver of any right to recover any damages that she may sustain as such abutting owner, it might be held to amount to an equitable estoppel upon her insisting upon the equity of an injunction against the Art Institute’s further proceeding in the erection - of the art building.

The issuing or continuing the writ of injunction is to some extent a matter of discretion of the court, and where the right infringed will create no irreparable injury, or the injury is slight, that discretion is. often exercised against the issuing of the writ of injunction. The court will balance the loss or inconvenience, and if the issuing of the writ will cause much loss or inconvenience to the defendants, and but slight to the complainant, it will refuse to use the court’s strong arm to protect the complainant, but will leave him or her to an action of law.

The fact that the complainant has laid by and permitted the defendant, the Art Institute, to expend a large sum of money, which might have been prevented by diligent action of the complainant in court, should be a strong factor to determine the judgment of the court in the exercise 'of that discretion. We are not inclined to place our decision solely upon the question of lac7ies of complainant.

The question arises in regard to the act of 1890, whether the legislature had the power to pass the act in question, and if the legislature had the power to authorize the Columbian Exposition with the consent of the city of Chicago, to take possession of this Lake Park, and use it for the public purposes of such world’s fair, and for the purposes expressed in said act; and the defendants being in such possession and acting under the authority of the supreme court of the state, should a court of equity interfere with that possession by the issuing of its writ of injunction?

A party acting under legislative authority constitutionally exercised will not be interfered with in his possession at the suit of a private property owner who is only consequently damaged by reason of such possession being taken and acts done under such legislative authority. The only remedy of a party in such a case is a suit at law for damages. It is not the province of a court of equity to interfere by injunction in such cases and thereby thwart the legislative will. In this case the original dedication was as we have seen for a street. It appears that after the narrowing of the street to a width of ninety feet the property east of the street, which was there at the time of the dedication and that which has been added from time to time by natural accretion or artificial addition, has been used and treated by the city of Chicago, as a public park known as the Lake Park, and has been recognized especially by the act of 1890 as a public park of the city of Chicago.

We deem the law to be well settled that the legislature has full control over the streets of a city and over all property of a municipality held by it in its governmental capacity, that is, property held like streets and public parks in trust for the public at large.

It may be that the legislature can not take away any easement of outlook or view, without providing for compensation for the easement so taken, or injured, to be made either by the state itself or by the city, but that it has the power to change or alter the public use for which such property may be held in trust, and especially where such changed public use is of the same nature or kind, there can be no question.

The question then recurs, whether or not the ordinance permitting the Art Institute through its arrangement with the ' Columbian Exposition, to erect the art building upon the site of the former Interstate Exposition building, can be justified, or is in conformity to the power conferred by the act of 1890 refered to.

The act of 1890 clearly contemplates the erection of buildings on the Lake Park by the Columbian Exposition Company, or under its authority, and provides for their removal within one year after the close of the exposition, unless otherwise arranged and agreed between the corporate authorities of said city of Chicago and the authorities who erected the same, and the act declares that “if said city of Chicago shall agree to purchase said building, the authorities shall not ask or obtain from said city for said buildings a sum greater than the actual cost of building the same.”

Did the legislature by that act contemplate that buildings of a permanent character might be erected by the Columbian Exposition which the city of Chicago might desire to and .should have the right to purchase at cost? It clearly appears that such was in the contemplation of the legislature.

If the city was to purchase a building or buildings at cost,, for what purpose or use was it to be done? Certainly not for removal.

The intention clearly was that, if the city did purchase any-building so erected, that such buildings were to remain in the park for public uses and purposes in connection with said-' park. It was certainly contemplated that greenhouses, herbariums, buildings for the horticultural exhibitions and art buildings would be erected by the World’s Fair Company.. Certainly an art building may be said to be a necessary concomitant to the carrying on of the World's Fair.

Is such a building in a public park a use of such park for-public purposes or for park purposes? There can be no-doubt of the power of the legislature to declare that this Lake Park should be for the education as well as for the physical enjoyment and recreation of the masses of the people. Are-not such institutions as art galleries usually found in public places or public parks? Is it reasonable to urge that it is a perversion of the uses of a public park that there should be-a building upon it devoted to art purposes, filled with paintings and works of art to delight the souls of the people who visit such parks? Are parks necessarily to be confined to the-works of nature? Certainly this is a contracted view of the objects of public parks and should not prevail.

The power, it will be noticed, is given to the city to purchase the building so erected by or through the World’s Columbian Exposition, and it is alleged that this was not a purchase by the city, but it will be observed that no time is fixed when such purchase shall be made, nor does the act require the consideration paid shall be in money. It is true that it is not, in probably the usual sense, a purchase, but the question is whether the arrangement made with the Art Institute-by the city of Chicago comes within the spirit and scope of the act of 1890.

It is contended that the Art Institute is not a public organization, but is organized for private purposes. It is organized as a corporation, but not for pecuniary profit; it has-no stock. I£ this ordinance required the art building to be always open to the public, could it be said that it was not a public building, for the benefit of the public, although it might be under the management of the Art Institute corporation? Is the ordinance, or is it not, a reasonable exercise of the power of the city council, given by the act of 1890, to obtain for the benefit of the public a building erected by or under the authority of the Columbian Exposition? If the city-can obtain for the use of the public such a building, for two full days each week and every Sunday afternoon and every legal holiday, free and clear of all charge to the public, filled with art treasures and without the expenditure of a dollar by the city, either for the erection of the building or for the paintings and works of art contained therein, and can have the same carried on, kept in repair, controlled and managed without the expenditure of any money on the part of the city, can it he said that such an arrangement does not come within the spirit and scope of the act of 1890? We think not. In our opinion, the art building to be erected, may be said to be public in its nature. The public, without cost to itself, obtains large benefits, free of charge, and the arrangement practically insures that such art building shall be managed, controlled and carried on in a manner probably better than the corporation itself could do, were it charged with so doing.

To hold that the action of the city and of the Columbian Exposition and Art Institute on the erection of the art building upon this Lake Park is authorized by the act of 1890 does not destroy or injure the park nor does it throw open the door to the city or other authorities or persons to erect other buildings or structures-of any kind thereon. The only power of the city in connection with this art building is derived through the act of 1890, and can not be exercised, except in connection with the World’s Columbian Exposition, or by its authority, so that there is no danger in this case of making a precedent by which the park may be lost to the public, or that private interests shall be enabled to obtain the erection of any buildings on said Lake Park.

Under the circumstances of this case, considering the laches of complainant, in enforcing any right she has to an injunction against the erection of this art building, that such delay has caused the Art Institute to expend a large sum of money, and that to now enforce this injunction against the Art Institute continuing the erection of said art building, such Art Institute will sustain a damage of nearly $100,000, and also¡ taking into consideration the fact that the Columbian Exposition and said Art Institute are in possession and acting under proper legislative authority, with the duly authorized consent of the city of Chicago, and also considering that the evidence shows that the complainant will suffer no substantial damages if this art building is permitted to be erected as provided for in said ordinance, and being persuaded that the proposed erection of the said building, under the city ordinance, is within the spirit and scope of the act of 1890, and authorized thereby we must hold that the complainant should be left to her remedy at law for her damages, if any is sustained, and that the injunction herein should be so modified as to permit the Art Institute and the Columbian Exposition to proceed with and complete said art building under said act of 1890, and the said ordinance of the city of Chicago.

Judge Tulby :

Judge Tuthill dissents to this opinion.

Judge Tuthill: I wish to simply say this: I passed . upon this question in my former opinion. Of course, it is unnecessary for me to repeat the view which I then expressed, inasmuch as I had not changed my view. I find myself unable to agree with the majority of the court in the view they take of this act of 1890-1, and for several reasons.

In the first place, I do not find in that act any power given to the city to purchase. I think if such power had been given that the law would to that extent have been unconstitutional, as being in violation of this provision of the constitution. No act thereafter passed could embrace more than one subject, and that should be expressed. The subject of this law was the World’s Columbian Exposition, not the giving of power to the city to do anything. It seems to me that mention of the city, “that if the city should purchase,” must be construed to mean that if the city had power or should thereafter be given the power to purchase an Art Institute, and if the city could, in a legal manner, that is, with the consent of the property holders, become the owner of a building upon the lake front.

It does not seem to me that the law of 1890 gives the city any such power or attempts to give it; and if it did attempt to give it, it seems to me it would be in violation of the constitution.

I say that, having those views, I wish to state that, in jus^ tice to myself, I find myself unable to agree either with the reasonings or the conclusions of the court.

Judge Tuley: It is proper to say that we do not agree with Judge Tuthill. We think that this act gives full authority to the city, and that it is constitutionally expressed.

The following order wras entered by the court:

Upon the motions of the city of Chicago, the World’s Columbian Exposition, and the Art Institute of Chicago, for a dissolution or modification of the injunction heretofore issued in said cause, and after hearing affidavits and evidence and arguments of counsel, the court being fully advised in the premises,

It is hereby ordered that said injunction be made, and the same is hereby so modified as not to interfere with the erection, construction and use of a building on the Lake Front, between Jaekson and Monroe streets, in pursuance of, and as contemplated by an ordinance passed by the city council of the city of Chicago, on the 30th day of March, 1892, and of an act of the general assembly of the state of Illinois, entitled “An act in relation to the World’s Columbian Exposition, approved Aug. 5, 1890,” and of all contracts made in pursuance thereof.


author: Brentano, J.: —

text:
      (Superior Court of Cook County. In Chancery.)

    The American Trust & Savings Bank vs. Imperial Hotel Company.
    (February 14, 1896.)
    1. Conflict of Jurisdiction between Courts of Concurrent Jurisdiction. In the case of conflicting jurisdiction, the court which first takes cognizance of the controversy is entitled to retain jurisdiction to the end of the litigation and incidentally to take possession of or control over the subject matter of the suit. The court first invoked will not be interferred with by another court while the jurisdiction is retained.

      2. Lis Pendens — All Indispensable .Parties. A Us pendens to be of controlling force in the question of jurisdiction would necessarily have to cover all indispensable parties.
    3. Conflict of ' Jurisdiction — Comity—Court First Acquiring Should Retain. Where a bill for a receiver was filed and thereafter other parties having notice of the pendency of such bill file a bill in another court on the following day for the appointment of a receiver of the same property and the defendant consents to the appointment of- a receiver in the second suit, comity does not require that the court should relinquish jurisdiction in the first proceeding where it was evident that the second bill was filed for the purpose of forestalling any action in the first proceeding.
    Bill for receiver. Heard before Judge Theodore Brentano. The facts are stated in the opinion.

      Richard Prendergast and H. S. Boutell, for complainant.

      Chas. H. Aldrich and L. C. Collins, for defendant.
   Brentano, J.: —

I do not deem it necessary at this time to consider and pass upon the various propositions discussed by the eminent counsel for the Windermere Hotel Company, in the able and learned brief submitted on the motion before the court.

The main contention, it is admitted, is on the question of jurisdiction between this and the circuit court, and at the outset I desire to say that it is the steadfast purpose of this court •to avoid impinging on the jurisdiction of a court of concurrent jurisdiction.

It seems to me, as argued by counsel, that the question of jurisdiction must be determined by the facts and circumstances in the case, and from these determine in the light of the law, which court first acquired jurisdiction for it is conceded that the court first acquiring jurisdiction of the subject matter will retain it and administer the trust estate.

It is conceded that the bill in the suit at bar was filed on •January 8th, and that the intention to file it, was communicated to and known by the parties most nearly concerned in, and to be affected by, the contemplated action of the complainants.

On the same day there was filed what purports to be an appearance by the law firm of which Mr. Defrees is a member. . Of the effect of this appearance I will say no more than that it may be construed as an admission by him of knowledge that there was pending in this court a bill praying for the appointment of a receiver.

The affidavits also disclose that there was abundant ground to assume that complainant’s application would be contested and resisted; and that for this reason notice was to be given •and was given of the filing of this bill. Summons, however, was not issued under complainant’s bill until January 15th.

On January 9th, (the day subsequent to the filing of this bill), Lyon filed his bill in the circuit court, summons at once issued and defendants were served on the same day, their appearance entered as also their consent to the appointment of a receiver; whereupon an order was entered appointing a receiver. A report of the receiver showing that the tenant in possession of the property had attorned to him was promptly filed, and as promptly confirmed, from which report it appears the Windermere Hotel Company made a lease for the term of ten years to the tenant in possession of the premises.

We have, therefore, a case where there was, at the time these orders were being entered in the circuit court for the appointment of a receiver and in confirmation of his acts, a. bill pending in this court which also asked for a receiver of the same property, and of which this court had jurisdiction and of which the complainants in the bill filed in the circuit court had notice.

From the records of the proceedings in the circuit court, on January 9, 1896, the conclusion is justified that the appointment of a receiver in that court was not discussed, but that the order appointing a receiver was consented to and was entirely perfunctory, so far as the Judge was concerned j that there was nothing in the proceedings before Judge Horton, advising him of the filing of the bill in this court, or that there were interested parties who might wish to be heard on the question of the appointment of a receiver under the bill in the circuit court.

The record discloses undue haste and pereipitancy on the part of these defendants in rushing into the circuit court and there consenting to the appointment of a receiver, while they had notice of the pendency of this suit for a similar purpose; for, as was said by one of the eminent counsel on the argument, “both bills aim at possession of the same property.” The same counsel argues that the circuit court has absolute jurisdiction on grounds of comity between courts of concurrent jurisdiction.

Conflicts between courts should ever be avoided and comity prevail, but it is a matter of grave doubt whether on the ground of comity alone, a court should relinquish jurisdiction and shrink from duties imposed upon it, where it finds that its jurisdiction is impinged upon. If this court concludes that it had acquired jurisdiction, it would be its duty to assert and maintain it, according to well-settled principles.

I think I am justified in thinking, from the affidavits and admissions made in court, that the proceedings in the circuit court were collusive and that the appointment -of a receiver there, was procured for the purpose of forestalling any action by this court.

It seems to me, taking in consideration the fact that there was collusion, that it may have some, if not controlling influence, upon the court in this case.

The eminent counsel for the Windermere Hotel Company, in his opening remarks, said that “mere consent to the appointment of a receiver in the circuit court, if in prejudice to complainants in this court, ought not to stand in the way of this court,” which means, as I understand it, that if I find that this complainant was injuriously affected by the order of the circuit court that it would be the duty of this, court to proceed to grant the prayer of this complainant and appoint a receiver.

It seems to me that the methods pursued by the parties to the circuit court litigation challenge the closest scrutiny and that the course there pursued can not persuade a court of equity to disregard the nature and effect of their acts. All there done was strictly in accordance with the forms of law, but will any one deny that it was not done for the purpose of forestalling the action of this court? Defendants proclaim that complainant can find ample protection by going into the circuit court and having the receivership extended over them and their claim. With equal force it is argued by complain, ants that defendants can have ample protection of their interests in the court whose aid was first invoked. In this case the doctrine of “Us pendens” has been invoked by defendants, but it would appear to me from an examination of the records in the above cases, that there was no “Us pendens” by reason of any proceedings in the circuit court, except against the parties served on January 9th, at the moment the American Trust & Savings Bank filed its application for a receiver in this court under the second mortgage. Service on the American Trust & Savings Bank in the circiut court suit was not made until January 20th, whereas the motion for a. receiver was made in this court on January 15th. Even if there was a “lis pendens” as to some other party, by reason, of the circuit court proceedings, there certainly was none on January 15th against the second mortgagee, the American. Trust & Savings Bank, complainant in this court.

A “Us pendens” to be of controlling force in the question of jurisdiction would necessarily have to cover all indispensable parties. That a second mortgagee should be made a ■ party, see 2 Jones on Mortgages, see. 1425, and that he is an indispensable party, see Augustine v. Doud, 1 Ill. App. 588.

As to the question of which court first acquired jurisdiction, I am satisfied to rest upon what Judge Blodgett said in Union Trust Co. v. Rockford, R. I. & St. L. R. Co., 6 Biss. 197, and concurred in by Judge Drummond.

“It will hardly be necessary to cite authorities to show that it is, and has long been, the settled rule of law in all eases of conflict of jurisdiction, that the court which first takes cognizance of the controversy is entitled to retain jurisdiction to. the end of the litigation, and incidentally to take the possession of or control the res, the subject-matter of the dispute, to the exclusion of all interference from other courts of co-ordinate jurisdiction. The proper application of this rule does not require that the court which first takes jurisdiction of the case shall also first take, by its officers, possession of the thing in controversy, if tangible and susceptible of seizure, for such a rule would only lead to unseemly haste on the part of officers to get the manual possession of the property,- and while the court first appealed to was investigating the rights of the respective parties, another court, acting with more haste, might, by a seizure of the property, make the first suit wholly unavailing.. To avoid such a result, the broad rule is laid down that the court first invokéd will not be interfered with by another court while the jurisdiction is retained.” See also, Gaylord v. Ft. W. M. & C. R. R., 6 Bissell, 286.

The question of jurisdiction out of the way, in my view of the law, if the allegations contained in this bill are true, the ■complainants would be entitled to have a receiver appointed, and in order to fully determine this, and to establish the relationship of all parties to the subject-matter, there should be reference to a master to hear evidence and report the same with his conclusions. I am of the opinion that the bill contains sufficient allegations of fact to justify the court in ordering a reference.

And counsel for defendant seems to admit that if this court should conclude to assert jurisdiction in this matter, and not to direct complainants to seek relief before the other tribunal, that a reference would have more than 11 academic 7 interest/’ and in such, an event, to submit to and invite the fullest disclosure of the affairs of the Windermere Hotel Company, and Mr. Defrees’ relations thereto.

I am of the opinion that the proper thing to do at this time, in view of all that is before the court, is to order a reference of both motions, with directions to the master to hear evidence and report the same to the court.

An order of reference may be prepared.

Note. Upon the question of priority of jurisdiction between state and federal courts in case' of conflict see Rodgers v. Pitt, 96 Fed. 668, where the authorities are reviewed. — Ed.

        Bell v. Ohio, L, & T. Co., 1 Biss. 260; Riggs v. Johnson County, 8 Wall. 166; Bill v. New Albany, etc. R. R., 2 Biss. 390; Abbott’s U. S. Practice, 223, and cases cited. — Ed. '


author: Dunne, J.:—

text:
      (Circuit Court of Cook County.)

    People ex rel. A. S. Whitman vs. John Shea and Henry C. Jones.
    (December, 1894.)
    1. Habeas Corpus — Fugitive From Justice — Extradition—Inquiry as to Commission of Crime. It is not permissible on the trial of the habeas corpus case brought on behalf of an alleged fugitive from justice to consider whether or not a crime has in fact been committed in the state asking the return of the prisoner.
    .. Same — Good Faith of Prosecution. It is not proper in a habeas corpus proceedings brought to try the legality of restraint of a person alleged to be a fugitive from justice to inquire into the good faith of the prosecution in the state asking his return.

      3. Same — Duty of Governor — Sufficiency of Extradition Papers —Province of Courts. If the indictment or affidavit upon which ■ the requisition is based does not show upon its face that a crime is charged against the alleged fugitive the executive should not act thereon, and if he1 do so improvidently or mistakenly, it is unquestionably within the power of the court to consider the affidavit and warrant submitted to the executive and pass judicially upon their sufficiency and if insufficient order the release of the prisoner.

      4. Criminal Law — Obtaining Money Under False Pretences — Nature of Offense. The offense of “obtaining money under false pretenses” was not a common law offense but is of purely statutory origin.
    5. Same — Allegations Necessary to Charge Offense. To hold a person charged with having committed the ordinary statutory crime of “obtaining money under false pretenses” as a fugitive from justice there must be allegations showing that there was a fraudulent statement of existing facts, a knowledge on the part of the defendant of their false and fraudulent character, an intent to deceive and defraud, 'and an obtaining of the money and the property of another thereby; the mere allegation that the defendant has committed against the law of the demanding state the crime of obtaining money by false pretenses is insufficient.
    6. Practice — Amending Insufficient Habeas Corpus Return to Show Alleged Fugitive Actually Charged with Crime in Demanding State. Where the return to a writ of habeas corpus to obtain the discharge of a person arrested as a fugitive from justice, is insufficient to show that he is charged with a crime in the demanding state the court will allow the defendants in the habeas corpus proceedings to amend their r.eturn to show that he is, if such be the fact.
    7. Habeas Corpus — Fugitive from Justice — Governor's Warrant— What Shows Regular Affidavit in Demanding State. A recital in the governor’s warrant that there was produced and laid before him a copy of a warrant and affidavit made by and, before a properly empowered officer in and of the State of North Carolina in accordance with the laws thereof is sufficient to show that the affidavit" upon which the North Carolina warrant was issued was made by a duly authorized official in the course of a judicial proceeding.
    Petition for discharge on habeas corpus. Heard before Judge Edward F. Dunne. The facts are stated in the opinion.

      W. E. Mason and Joseph T. Kretzinger, attorneys for relator.

      F. A. Dennison, attorney for defendants.
   Dunne, J.:—

Relator Whitman has filed in this court his petition for release, under the Habeas Corpus Act, alleging therein that he is illegally restrained of his liberty by the defendants. The defendants in their return deny that defendant Shea has custody of the relator, but admit that defendant Jones has such custody, and aver that he, Jones, as agent of the governor of North Carolina, rightfully and lawfully detains the prisoner by virtue of a warrant of the governor of Illinois, issued upon the requisition of the governor of North Carolina; said warrant containing the following recital:—

“The executive authority of the state of North Carolina demands of me the apprehension and delivery of A. S. Whitman, represented to be a fugitive from justice; and has moreover produced and laid before me the copy of. a warrant and affidavits, made by and before a properly empowered officer in and of the said state in accordance with the laws thereof, charging A. S. Whitman, the person so demanded, with having committed against the laws of said state the crime of obtaining money under false pretenses; which appears by the said copy of a warrant and affidavit certified as authentic by the governor of said state, now on file in the office of the secretary of the state of Illinois; and being satisfied that the said A. S. Whitman is a fugutive from justice and has fled from the state of North Carolina, etc.”

After this recital the apprehension and delivery of the said Whitman is ordered. Relator demurs to this return and asks his discharge on the following grounds: 1st. That no crime was in fact committed in the state of North Carolina. 2nd. That the recital of the alleged crime contained in the warrant of the governor of Illinois does not, upon its face, show that the relator was charged in the affidavit with the commission of a crime known to the law of either state. 3rd. That the warrant of the governor of Illinois does not, in its recital, show that the affidavit upon which the North Carolina warrant for the relator’s arrest was made before a legally authorized officer in the course of a judicial proceeding.

In view of the serious charges made by counsel for the relator, affecting the tona fides of the prosecution, the court in limine has heard certain oral testimony. In substance the testimony disclosed the following state of facts:

The relator was a member of a Chicago firm having a bank account in a Chicago bank which ranged from sixteen thousand dollars to a few dollars. At no time within thirty days prior to the commission of the alleged crime, did relator or his firm have over two hundred dollars on deposit.

On the ........ day of ............, 1894, the relator presented a letter of introduction from one Hayes, a resident of Chicago, to a mercantile firm in North Carolina, on the faith of which relator succeeded in getting this firm to cash his check for $1,970 upon the Chicago bank. Upon the presentation of the check it was marked “insufficient funds” and dishonored, there being on deposit on the day of presentation only two dollars, or thereabout.

Upon the return to North Carolina of the dishonored check, the North Carolina firm telegraphed Hayes, who promptly made good the loss sustained by the North Carolina firm and requested it, by telegram, to swear out a warrant for the ar- • rest of the relator for obtaining money under false pretenses.

Such proceedings were taken and were the basis for the issuance of the warrant for relator’s arrest by the governor of Illinois.

Pending the requisition from North Carolina the relator was arrested on a fugitive warrant issued by a justice of the peace of Cook county upon the affidavit of Hayes, and either paid or indemnified Hayes against loss. Under this state of facts it was strenuously contended by the relator that the prosecution in North Carolina was not in good faith, inasmuch as it was instigated by Hayes for the collection of a debt; and would be futile if in good faith, for the reason that one essential element of the evidence for the prosecution, to-wit, the condition of the relator's bank account in the Chicago bank, could only be proved by the officers of the bank who were beyond the reach of the North Carolina court-, and flatly refused to concern themselves with the prosecution.

If, under the law, it were permissible on the trial of a haeas corpus case to inquire into the question as to whether or not a crime had in fact been committed in North Carolina, or to examine into the bona fides of a criminal prosecution entered into in another state, the evidence offered in this case would tend to move the court to discharge the prisoner from custody. This consideration has induced the court to carefully examine the authorities in point. Such examination has brought the court to the conclusion that on the trial of a habeas corpus case the court has not the right to consider the question as to whether or not a crime has in fact been committed in another state. Nor has it the right to examine into the good faith of the prosecution.

The authorities almost unanimously hold as an elementary principle that' a person accused of a crime must be tried in the state where the offense was committed; and that to inquire into his guilt or innocence where the offense was not committed, is in derogation of all the principles of common and statutory law. That must be left to the court of the state where the crime is alleged to have been committed. In re Greenough, 31 Vt. 279; In re Clark, 9 Wend. 212; Kingsbury’s Case, 106 Mass. 223.

On habeas corpus a court or judge before whom a prisoner is brought, arrested as a fugitive from justice, by a warrant issued by the executive of another state, will not inquire into the probable guilt of the accused. Davis’s Case, 122 Mass-324; People v. Pinkerton, 77 N. Y. 245; Norris v. State, 25 Ohio St. 217; Sedgwick on Constitutional Law, 395; Hurd on Habeas Corpus, secs. 327-388; Cooley’s Constitutional Law, 16.

If upon the hearing of a habeas corpus case a court cannot inquire into the fact, as to whether a crime has in fact been committed, as the above authorities establish, it necessarily follows that the good faith of the prosecution is not within the range of inquiry.

If the paramount question of the guilt or innocence of the relator cannot be inquired into, it would be idle formality to investigate a collateral issue such as the motives of the prosecution.

The second objection to the defendants’ return, made by the relator in this case, presents, however, a more serious question.

Does the governor’s warrant show upon its face that the relator has been charged with the commission of a crime? If it does not, this court is of the opinion that the relator should be discharged unless further proof is adduced that the relator was in fact charged with such crimes.

Counsel for the defendants has contended that “a regular demand under the act of congress, and warrant of the governor to surrender a fugitive, is conclusive; and the court or judge cannot, on habeas corpus inquire further into the offense charged.” Citing in support of this contention, Adams v. Buzine, 4 Harrington (Del.), 572.

Counsel’s position, in other words is, that if the warrant is duly issued, the court upon habeas corpus can go behind it ' only so far as to entertain the question as to the identity of the alleged fugitive.

This position he claims is supported by the following authorities : State v. Schlemn, 4 Harrington (Del.), 577; Commonwealth v. Daniels, 6 Pa. Law Journal (4 Clark), 417; In re Clark, 9 Wend. 218.

The best considered cases, in the opinion of this court, do not support this contention of counsel.

In the matter of Peter B. Manchester, 5 Cal. 237, Murray, Chief Justice, in delivering the opinion of the court, says:

“It may be as well to state, indimine, that I do not consider, under the distribution of powers by the constitution of this state, the judiciary are denied jurisdiction in this class of cases. The very object of the habeas corpus was to reach just such cases; and while the courts of the state possess no power to control the executive discretion, and compel a surrender, yet, hewing once acted, that discretion may be examined into, in every case where the liberty of the subject is involved.

“The extradition of the subject is a dangerous power, which cannot be too carefully watched, and ought not to be trusted alone to the executive. * * *”

In re Roberts, 24 Fed. 132, Speer, Justice, held that “while "the duty of the executive is thus plainly marked out, it" is also the province of the courts on inquiry, by means of habeas •corpus, to determine the legality of the detention of the party whose extradition is sought.”

In People v. Brady, 56 N. Y. 182, 188, the court, in passing on a state of facts almost identically the same as these presented in the case at bar, declares, that “It does not appear that an indictment has been found against the relator; .and the question arises whether the affidavits charge him with the commission of a crime in the state of Michigan; for unless this appears, they are fatally defective, and the warrant for his rendition was unauthorized.”

In re Doo Woon, 18 Fed. 898, the court makes use of the following language:

“The executive of this state, in allowing the requisition of the executive of California, acts under the authority of the United States statute, and must conform to its directions and limitations. Kentucky v. Dennison, 24 How. 66. One ■of these is that before he can allow a warrant of extradition he must be furnished with a copy of an indictment or affidavit charging the person demanded with the commission of a crime against the laws of California. Without this he has no jurisdiction. A case for the exercise of his authority, in this respect, is not presented, and so far does not exist. And the warrant must bear upon its face the evidence that it was duly issued, and therefore, unless it recites or sets forth the indictment or affidavit upon which it is founded, it is illegal and void. ’ ’

As is indicated by the authorities just cited, it is undoubtedly the province of the court or judge, on the trial of a. habeas corpus case, to examine into and consider the extradition papers and the indictment or affidavit and warrant upon which the same is based.

The executive in issuing a warrant upon the requisition of' the governor of another state, acts in a ministerial and not in a judicial capacity.

If the law governing requisitions and extradition has not been strictly complied with, the governor should not issue-his warrant for the apprehension of an alleged fugitive. If the indictment or affidavit upon which the requisition is based, does not show upon its face that a crime is charged against the 'alleged fugitive, the executive should not act thereon, and if he do so, improvidently or mistakenly, it is unquestionably within the power of a court to consider the indictment or affidavit and warrant submitted to the executive and pass judicially upon their sufficiency. And if they be found invalid or defective, it should order the release of the prisoner.

Holding this view of the law, the court, in the case at bar,, has carefully considered the recital in the governor’s warrant, which is made a part of the return. The recital in the-said warrant, setting out the offense, is in the following words:

“With having committed against the laws of the state of" North Carolina, the crime of obtaining money under false pretences.”

Does or does not this allegation describe or set out a crime t This court is of the opinion that it does not.

The offense colloquially, but inaccurately, known as “obtaining money under false pretences” was unknown to the-common law. It is purely a statutory crime created for the-first time by an act passed in the reign of George II.

Cheats were punishable at common -law it is true, but the-cheats punishable at common law are such cheats as are effected by deceitful or illegal symbols or tokens, which may affect the public at large, and against which common prudeuce could not have guarded. Wharton, Grim. Law, Yd. II, sec. 1116.

Obtaining money on one’s own check or note is not such a cheat. Wharton in his valuable work considers this express question, and uses the following language:

“In the case of a person offering to another a cheque on a bank where he has no funds, neither of these ingredients, (to-wit, latency and publicity) exists. The fraud is not so latent as not to call up inquiry, for the very fact of a man offering his own paper is notice putting the person to whom the paper is offered on his guard. The fraud is not addressed to the public at large, but only to the person invited to take the cheque. Hence, passing such a cheque on an individual is not a cheat at common law.” Wharton, Grim. Law, Yol. II, sec. 1223.

Again the same writer declares:

“No cheat is indictable at common law unless effected by conspiracy, or unless it be marked by latency, subtlety, and generality of operation, as to affect all likely to come within its range; whereas, under the statutes now before us (covering the obtaining of money or goods by false pretenses) it is made indictable to obtain money or goods from individuals by any designedly false statements of facts likely, under the particular circumstances of the case, to deceive.” Wharton, Grim. Law, Yol. II, sec. 1130.

Obtaining money under false pretences not being an offense at common law, such as murder, arson, burglary, forgery, rape or larceny, but being a crime created by statute, it follows that on the face of an affidavit or indictment upon which it is sought to apprehend a fugitive from justice, sufficient must appear to show that the fugitive is charged with the statutory crime.

In other words, the indictment or affidavit must disclose all of the essential elements of the statutory offense.

The legislatures of North Carolina, as well as those of Illinois and most of the other states of the union, have, following the precedent of the English statute of 30 Geo. II, e. 24, enacted laws which declare that the obtaining of money or goods by false pretenses, under certain conditions and circumstances, is a criminal offense. In each and all of these acts there is an express statutory definition of the offense, and in order to constitute the same each and all of- the elements of the statutory crime mentioned in the statute must be found in each particular case where the crime is charged, before the person charged therewith can be apprehended on a warrant or indicted.

The words “obtaining money under false pretenses” do not disclose an offense as defined by the North Carolina or Illinois statute. All false pretenses are not illegal, nor is the obtaining of .money or goods by illegal false pretenses at all times a crime; as for example, the collection of an honest •debt from a debtor by means of false pretenses.

Under most, if not all of the statutes of the several states examined by the court, there are four essentials requisite to the commission of the offense of obtaining money by false pretenses:

1st. False and fraudulent statement of existing facts.
2nd. Knowledge of their false and fraudulent character.
3rd. Intention to deceive and defraud.
4th. Obtaining the money and property of another thereby.

To constitute the crime of obtaining money or goods under false pretenses, there must be a “false and fraudulent representation or statement of an existing or past fact, made with knowledge of its falsity, and with the intent to deceive and defraud,” whereby another is induced “to part with money or property of value.” Yol. 7, Amer. & Eng. Ency. of Law, 700 (1st ed.).

In People ex rel. Lawrence v. Brady, 56 N. Y. 182, 188, an affidavit similar to the recital contained in the governor’s warrant in this case, after exhaustive argument, was held insufficient, but one judge dissenting, and the court uses the following language:

“The false pretenses are not set out, nor the means by which the cheat was to have been, or was effected. It was in the power of the complainant to have specified the pretenses and means used, for he alleges that the object of the conspiracy was accomplished. In an indictment for a cheat at common law the false token must be alleged; and in an indictment for false pretenses the pretenses must be averred, so that the accused may be prepared to meet the accusation, and that the court may see that an indictable offense is charged; for there are many cheats which are not indictable, and false pretenses which are not within the statute. (2 Term Rep. 586; Bast’s Crown Law, 837; People v. Williams, 4 Hill, 9; People v. Crissie, 4 Denio, 529.) An. allegation that one obtained the goods of another by false pretenses, or by cheating, is not, in a legal sense, a charge of crime, for it may be true, and yet no crime may have been committed. ’ ’

The court is, therefore, of the opinion that the recital in the governor’s warrant did not set out or charge, by way of recital or direct averment, the commission of a crime.

Counsel for the defendants, however, have moved this court for leave to supplement their return and file in connection therewith, the affidavit and warrant filed in the office of the secretary of state, upon which the governor of Illinois issued the warrant set up in the return.

This motion has been allowed, as was the same motion granted in the case In re Romaine, 23 California, 585.

And there now being on file in this case a copy of the affidavit upon which the North Carolina warrant was issued; and this affidavit setting out in detail, in conformity with the law, the false pretenses upon which the governor of Illinois has issued his warrant, the court is of the opinion that all ‘the requirements antecedent to the issuance of the governor’s warrant have been fully complied with, and that the prisoner must therefore be remanded to the defendant Jones, who has been duly appointed the agent of the governor of North Carolina.

As to the third objection made by counsel for the prisoner to the sufficiency of the governor’s warrant, to-wit: That it does not appear on the face of the papers that the affidavit upon which the North Carolina warrant was issued, was made by a duly authorized officer in the course of a judicial proceeding, it suffices to say that the governor’s warrant recites that there was produced and laid before him a copy of a warrant and affidavit made by and before a properly empowered officer in and of the state of North Carolina in accordance with the laws thereof. This recital is, in the opinion of the court, ample and complete.

The order of this court is, therefore, that the relator be remanded to the custody of the defendant Jones, the agent of the governor of North Carolina; and it is so ordered.