author:
Mr. Justice Mulkey Per Cueiam :
      Mr. Justice Magbudeb, ;

text:
    Seth F. Hanchett v. D. U. Waterbury.

      Filed at Ottawa March 24, 1885

      Rehearing denied March Term, 1886.

    1. Assignment fob the benefit of obeditobs — equality among creditors. By the statute on the subject, all voluntary assignments for the benefit of creditors are placed, on the same footing, and all preferences among creditors not having liens on the property assigned, are made void, and the effects of the assignor must in all cases be distributed pro rata among the creditors by the county court, as directed in such act.
    2. Same—;jurisdiction of county court. Under the several provisions of the act of May 22, 1877, entitled “An act concerning voluntary assignments, and conferring jurisdiction therein upon comity courts, ” a new and special jurisdiction is conferred upon county courts over the subject matter of such assignments, the exercise of which can not be interfered with or embarrassed by process from other courts. Such jurisdiction attaches by the making, filing and recording of the assignment in the mode prescribed in the act.
    3. Under that act the county court, when exercising the powers therein conferred, is in effect an insolvency court, and the same general principles applicable to such courts must be applied.
    4. Same—remedy of adverse claimant—trial of right of property. After the county court has once acquired jurisdiction of the estate of an assigning debtor, he and the assignee, and all other persons having an interest in or upon the estate, are subject alike to the judgment of that court; and a claimant of any property assigned for the benefit of creditors will not be allowed to take the same from the assignee by writ of replevin from another court, but he may present his claims to the county court, which is authorized to call a jury to try the right of property.
    Appeal from the-Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Messrs. Horton, Hoyne & Saunders, for the appellant:
    The assignee does not take his title and powers from the court like a receiver, or under the statute. The statute simply regulates the mode of distribution, and other details in the management of the trust. He is not a purchaser for value, but a mere volunteer, and takes only such right, title and interest as the assignor had. O’Hara v. Jones, 46 Ill. 293; Eames v. Mayo, 6 Bradw. 338.
    Attachment, replevin, etc., are proper actions by and against an assignee, and under them the validity of an assignment may be tested. Savery v. Spaulding, 8 Iowa, 239; Price v. Parker, 11 id. 144; Drain v. Mickel, 8 id. 438; Moss v. Humphrey, 4 Greene, (Iowa,) 443; Wells on Replevin, sec. 325.
    There is no question but that replevin would lie against a voluntary assignee prior to the act of 1877. That is one mode recognized as a valid and proper mode of testing the validity of the assignment. The validity of the assignment might be tested by the levy of an execution, by attachment, or by a bill in chancery. Armsdell v. Sigerson, 2 Gilm. 83; Conkling v. Carson, 11 Ill. 503; Finley v. Thompson, 29 id. 9.
    An assignee under a voluntary assignment for the benefit of creditors does not represent the creditors, but is the exclusive representative of the assignor. Hawks v. Pritzloff, 51 Wis. 162; Esterbrook v. Mississimitt, 18 id. 551; Heinricks v. Woods, 7 Mo. App. 236; Morris’ Apipeal, 88 Pa. St. 382.
    Messrs. G. W. & -I. T. Kretzinser, for the appellee:
    The sole right of a failing debtor to assign his property for the benefit of his creditors exists under and by virtue of the statute, entitled “An act concerning voluntary assignments, and conferring jurisdiction therein upon county courts, ” approved May 22, 1877, in force July 1, 1877. The right the debtor may have had to make an assignment for this purpose at common law, is taken away by this statute. Rev. Stat. chap. 10; Freydendall v. Baldwin, 103 Ill. 329.
    This statute confers exclusive jurisdiction upon county courts to hear and determine the rights of all parties as creditors or claimants of the estate. Globe Ins. Co. v. Cleveland Ins. Co. 14 N. B. R. 328; In re Vogel, 7 Blatchf. 18.

      Sections 7 and 14 of the act confer exclusive jurisdiction upon county courts to take charge of the judicial administration of the estate, and exclusive jurisdiction over the res and the assignee. This jurisdiction having thus attached, the jurisdiction of no other court can attach at the suit of any one in any form of action. Grignon’s Lessee v. Astor, 2 How. 338; Freydendall v. Baldwin, 103 Ill. 329; Purviance v. Glenn's Exrs. 3 Md. 256; Carter v. Dennison, 7 Gill, 157; Jamison v. Chestnut, 8 Md. 34.
    The judicial administration of the estate can not be interrupted by a suit in replevin, or by any other writ or process from any other court. In re Vogel, 7 Blatchf. 18; Peck v. Jennes, 7 How. 612; Buck v. Colbaith, 3 Wall. 334; In re Cook & Gleason, 3 Biss. 119.
    Even in cases where no exclusive jurisdiction has been conferred upon some special forum, and thus several courts have concurrent jurisdiction over the same subject matter and parties, the rule is universal that the jurisdiction first invoked attaches eo instanti to the res and the parties, thereby suspending the jurisdiction of every other court. See eases last above cited, and Taylor v. Carryl, 20 How. 593.
    A compliance with this insolvent law,—that is, executing the deed of assignment, recording the same and filing it with the clerk of the county court,—puts this special and exclusive jurisdiction of the county court in motion. In re Vogel, 7 Blatchf. 18; Peale v. Phipps, 14 How. 368; Freydendall v. Baldwin, 103 Ill. 329.
    The instant this jurisdiction attaches, the property and estate of the debtors—the assignors—are within the custody of the law, and are thus placed beyond the jurisdiction of every other court, and this jurisdiction may be protected, if sought to be invaded by injunction or proceedings in contempt. Knott v. The People, 83 Ill. 532; Yott v. The People, 91 id. 11; Hogan v. Lucas, 10 Peters, 404; 1 Show. 174; Funk & Hardman v. Israel, 4 Iowa, 450; Buck v. Colbaith,
      3 Wall. 340; Freeman v. Howe, 24 How. 450; Mitchell v. G. W. M. and M. Co. 2 Story, 657.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In December, 1883, Ingram, Kitchen & Williams made a voluntary assignment to D. M. Waterbury, the appellee, for the benefit of creditors. Vietor & Achelis, claiming to be the owners of certain articles of property embraced in the assignment, and then in the possession of Waterbury, as assignee, sued out of the circuit court of Cook county a writ of replevin for the recovery thereof, and placed it in the hands of Seth F. Hanchett, as sheriff, for execution. The county court, on the petition of the assignee, thereupon entered an ex parte order enjoining and restraining the sheriff from executing the writ of replevin. On the same day the sheriff appeared in the county court and filed a written motion to set aside the restraining order, which the court, upon due consideration, declined to do, and thereupon entered a formal order overruling said motion. From this last order the sheriff prosecuted an appeal to the circuit court, where the same was reversed, and the original restraining order set aside. On appeal to the Appellate Court for the First District the order of reversal in the circuit court was in turn reversed and set aside by the Appellate Court, and the case is now before us on appeal from the latter court.

No question is made as to the validity of the deed of assignment, or the regularity of any of the proceedings under it, prior to the filing of the petition and entry of the restraining order complained of. We are therefore warranted in assuming there has been, on the part of all concerned, a substantial compliance with the provisions of the statute relating to such assignments.

From this statement of the facts it is manifest the main question presented for determination is, whether the county court had power to make the restraining order complained of, for, assuming the power of the court to exist, the propriety of exercising, it will not be, and, indeed, is not, questioned. Whether the court had such power or not, depends upon the construction which must be given to the act of May 22, 1877, entitled “An act concerning voluntary assignments, and conferring jurisdiction therein upon county courts.” The position of appellant is, that the power to make an assignment for the benefit of creditors is not conferred by the act in question ; that the right was an existing one prior to its adoption, and is not in any way affected by it; that “the title, power and authority of the assignor are full and complete, independent of the county court and of the statute. ” This view we regard as far from being accurate. It is true that the right and power of a failing debtor to pass the title of his effects to an assignee remain as they did before the statute, but this is all. The power to control the distribution and beneficial enjoyment of his property upon such a transfer of the title is essentially different from what it was before the statute. Prior to its adoption the insolvent debtor could dis-0 tribute his property among his creditors just as he pleased. If there was not sufficient to pay all, he might direct the whole of one’s claim be paid and only half of another’s, or he might prefer the claim of a single creditor to the exclusion of all the others, and the assignee would be bound to carry out his directions. Then the county court had nothing whatever to do with the assignee, or the effects in his hands as such assignee. Such is not the case now. The statute has wrought a radical change in the law in these and other respects. All voluntary assignments for the benefit of creditors now stand on the same footing. The effects of the assignor must in all cases be distributed ratably among his creditors, and any provisions in the deed of assignment directing otherwise will be inoperative and void.

By the first section of the act in question every debtor making an assignment for the benefit of his creditors is required to make out and annex to such assignment an inventory, under oath or affirmation, of his estate, both real and personal, together with a list of his creditors, showing their residence and place of business, if known, and the amount of their respective demands, and the assignment, with the annexed schedules thus made out, is required to be acknowledged and recorded, as in said section provided. By the second section the assignee is required'to give immediate notice, in the manner therein provided, to the creditors, to present their claims to him, under oath or affirmation, within three months thereafter. By the third section the assignee is also required to file with the clerk of the county court where such assignment shall be recorded, a true and full inventory and valuation of the estate, verified by oath or affirmation, and he is thereupon required to enter into bond to the people of the State, for the use of the creditors, in double the amount of the inventory and valuation, conditioned that he will faithfully discharge his duties as such assignee. After the expiration of three months from date of notice the assignee is required, by the fourth section, to make an additional report, under oath, showing the number of creditors who have presented their claims for adjustment, and the amount of their respective claims, etc. The fifth section authorizes any person interested, as creditor or otherwise, to appear before the county court and contest the claims of any of the creditors, and the court is authorized, upon due notice, “to proceed to hear the proofs and allegations of the parties in the premises, and to render such judgment thereon as shall be just, and may allow a trial by jury thereon.” The sixth section provides for a ratable distribution of the fund, and a final adjustment of all claims and a closing up of the trust, before the county court, within one year from the first term of court after the three months’ notice provided for in the second section. The seventh section provides “that the assignee * * * shall at all times be subject to the order and supervision of the county court when in session, or the judge of said court when not in session; and the said court, or the said judge, may, by citation and attachment, compel the assignee, * * * from time to time, to file reports of his proceedings and of the situation and condition of the trust, and to proceed in the faithful execution of the duties required by this act, and to obey the order of such court when in session, or the said judge when not in session, in relation to the complete and final settlement, distribution and paying over of the proceeds derived from said trust, or any part thereof, until final settlement and distribution is made.” The eighth section, among other things, gives the county court power to issue summary process against the assigning debtor to compel him to answer, under oath, as to the condition of his estate, the names of the creditors, the amounts due to each, and their places of residence; also power to compel the delivery to the assignee of any property or estate embraced in the assignment. The ninth section requires the assignee, from time to time, to file with the clerk of the county court additional inventories and valuations of any property subsequently coming into his hands under the assignment, etc. The tenth section provides for the adjustment and payment of debts not due, with a reasonable abatement of interest, and also declares that all creditors who shall not exhibit their claims within three months from the publication of notice required by the second section, “shall not participate in the dividends until after the payment in full of all claims presented within said term, and allowed by the county court.” The eleventh section authorizes the assignee to sell and dispose of the trust property in as full and ample a manner as the debtor himself could have done before the assignment, and to sue for and recover any estate or property embraced within the assignment, and generally to act and do whatsoever the debtor himself might have done in the premises. The twelfth section confers power on • the county court to remove the assignee for any misconduct or breach of the trust, and appoint another in his stead; and in case of the death of the assignee, or his refusal to act, it is made the duty of the court in like manner to fill the vacancy thus occasioned, and such new appointee in either case is by this section made to assume all the duties and responsibilities, and is clothed with all the rights, powers and privileges of the original assignee. The thirteenth section makes every provision in an assignment giving one creditor a preference over another, inoperative and void, and directs that all debts of the assigning debtor shall be paid pro rata. The fourteenth and last section is as follows: “Full authority and jurisdiction is hereby conferred upon county courts, and the judges thereof, to execute and carry out the provisions of this act, and said courts shall be and remain open at all times for the transaction of business under this act.”

A careful consideration of the several sections constituting the above act, particularly the seventh and last, leaves but little, if any, doubt in our minds that it is essentially, in its framework and detail, a general Insolvent law, and that it was so intended by the legislature. By its provisions a new and special jurisdiction is created and conferred upon the county courts of the State, in the exercise of which it is manifest they would, to say the least of it, be greatly embarrassed if any interference with them by other tribunals were permitted, where the jurisdiction has once attached. Indeed, to permit such interference would practically defeat the chief object of the statute, namely, to provide a convenient, expeditious and inexpensive tribunal, through the instrumentality of which an insolvent debtor may make an entirely equitable distribution of his effects among his creditors. If, after the jurisdiction of the county court has attached, third parties having real or pretended claims to or upon the trust estate were permitted, by means of process issued out of other courts, to take possession of the property in the hands of the assignee, for purposes of litigation in such other courts, the county court by this means might be deprived of its jurisdiction altogether. In any event, it would necessarily so retard and embarrass the proceedings in the county court that it would be impossible to administer the estate in the manner or within the time prescribed by the act, and to that extent would render the statute inoperative. A construction leading to such a result ought not to be adopted. To give the statute practical effect in all its provisions, we .feel constrained to hold, as we do, that upon the making, filing and recording of the assignment, with the lists and schedules annexed, the county court wherein such assignment is filed and recorded, in its character as an insolvent debtor’s court, by operation of law at once acquires jurisdiction over and becomes possessed of all the property and estate embraced within the assignment, subject, of course, to all prior liens and just claims that third parties may have to or upon it. The fact that the legal title is in the assignee, and that he acquired it by the voluntary act of the assigning debtor, makes no difference in this respect. As a valid assignment can now only be made under the statute, and when so made the estate must be administered and distributed substantially in conformity with its provisions, it is a matter of little, if any, consequence, as to just where the legal title is or by what method it was acquired, except in so far as it affects the jurisdiction of the court. The assignee, the insolvent debtor, and all persons claiming an interest in or upon the fund, are subject alike to the summary jurisdiction of the court," and whatever rights, real or supposed, with respect to the fund, must primarily be litigated therein, and that there may be no failure of justice, the act, as we have already seen, clothes the court with power, when in its judgment the exigencies of the case require it, to order a trial by jury. While the legal title to the fund is in the assignee, the possession of it, as we have just seen, is in the court, and the assignee’s relation to the court is analogous, in some respects, to that of a receiver, or of an assignee in bankruptcy.

If effect is to be given to these general principles, and the statute is to receive a construction which will effectuate the objects and purposes of the legislature in adopting it, it is clear there was no right to replevy the goods in question, as was sought to be done. Freydendall v. Baldwin, 103 Ill. 329; In re Vogel, 7 Blatchf. 18.

The judgment of the Appellate Court being in harmony with the view here taken, it is affirmed.

Judgment affirmed.

Dickey and Sheldon, JJ., dissenting.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Cueiam :

In overruling the petition for a rehearing in this case, it may be proper to add we do not understand the construction given to the statute to be obnoxious to the objection urged against it, namely, that it impinges upon the powers of other courts exercising general common law or chancery jurisdiction. The powers and jurisdiction of these courts are conferred by the constitution, and it is therefore not competent for the legislature to abrogate or restrict them. But what we intended to hold, and do hold, is, that in the matter of voluntary assignments, when the jurisdiction of the county court has once attached no other court has the right to interpose, for the purpose of adjusting any claims with respect to the property assigned or of administering the insolvent’s estate, except, perhaps, under special circumstances a court of equity may intervene to prevent a failure of justice. In thus holding, we simply recognize and give effect to the familiar and long established rule that in cases of concurrent jurisdiction the court which first obtains it will have precedence.

The petition is denied.

Petition denied.

Mr. Justice Magbudeb, ;

The petition for rehearing in this

ease has been considered since I became a member of the court. I dissent both from the original and the per curiam opinions. In my judgment the rehearing should have been granted.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The City of Chicago v. Patrick J. Sexton.

      Filed at Ottawa September 21, 1885.

      1. Building contbact—declaration of forfeiture—right reserved in the contract—its character and extent. A contract entered into between a city and a building contractor, “to furnish, deliver, set up, place and fix, complete, all the iron work required in the erection of a building for a city hall, ” etc., for a given sum, made up by stating the estimated cost of each story and the roof separately, to be paid when the contract should be completed, with payments on estimates as the work progressed, on condition that the progress of the work should be satisfactory, reserving fifteen per cent thereof until the completion of the contract, contained a clause that if the work should not be commenced in the time stipulated, or should not make such progress as to insure its completion in the time agreed upon, or if the work should be wholly or in part improperly constructed, the mayor, on behalf of the city, might declare the contract forfeited, either as to a portion or the whole of said work, etc., and provided that such declaration of forfeiture should not relieve the contractor from the covenants and conditions of the contract: Held, that the power to declare a forfeiture was not an arbitrary one, to be exercised capriciously, but could be exercised only in good faith and for reasonable cause, and further, that the contract was an entire one in its character, and the power was not limited to stories-of the building, but might be exercised as to a part of the work on a given story as well as for the whole of the work on a story.
    2. Same—unauthorised declaration of forfeiture—measure of recovery for work already done. Where a contractor is prevented from completing his contract by an unauthorized declaration of a forfeiture, the value of the work done and materials furnished by him under the contract must be fixed by the stipulations of that contract, so far as they can be applied; and he can not proceed upon a quantum meruit and quantum valebant, in disregard of the special contract.

      3. Estoppel—when applied to municipal corporation. A. municipal corporation may be estopped by the action of its proper officers, when the corporation is acting in its private, as contradistinguished from its governmental, capacity, and has lawful power to do the act.

      í. Same—as to what .were the plans and specifications for a public building. A city, having power to contract for the building of a city hall, advertised for bids for furnishing materials and doing the work in accordance with plans and specifications on file in the department of public works, and the party whose bid was accepted, was shown, by one in charge of the office of public works, certain plans call “tracings,” but which were in fact not the original plans, upon which to make his estimates and bid, and his contract referred to plans and specifications in such office. It was held, that the plans and specifications so shown him were the ones referred to in the contract, and that the city was estopped, by the action of its agent in charge of the office, from denying that the plans and specifications so shown to him were the ones adopted for the work, and insisting that the contract related to other and different ones, which would make a considerable difference in the value and cost of the work.
    5. Municipal indebtedness—constitutional limitation—distinguished as to liabiliy incurred from wrongful conduct. A municipal corporation is responsible for the want of fidelity or negligence of those who are authorized to act for it, and such liability is not within the constitutional and statutory limitation in regard to the creation of indebtedness.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook County; the Hon. Sidney Smith, Judge, presiding.
    This is assumpsit, by Patrick J. Sexton, against the city of Chicago, brought in the Superior Court of Cook county, for a balance claimed to be due for work done and materials furnished by him, and used and appropriated by the city in the construction of the iron work for the new city hall. The declaration contains the common counts only. The city pleaded non-assumpsit. By agreement of parties, the cause was submitted to the court without the intervention of .a jury. The court found in favor of the defendant, and rendered judgment accordingly. That judgment was affirmed on appeal to the Appellate Court for the First District, but on appeal to this court the last named judgment was reversed, and the cause was remanded for a trial de novo. Upon being remanded to the Superior Court, the cause was again submitted to the court without the intervention of a jury, by the agreement of parties, and the court there found and rendered judgment for the plaintiff for $56,680. This judgment was affirmed by the Appellate Court for the First District, on appeal to that court, and that judgment of affirmance is brought before this court for review by the present appeal.
    The material facts are: On the 30th of March, 1878, the mayor of the city of Chicago advertised for sealed proposals, to be received by the department of public works, in connection with the committee of the city council on public buildings, for furnishing all the stone, brick and iron, and doing all work necessary in the construction of the new city hall, etc. On the 8th of April’, 1878, Patrick J. Sexton, in response to this advertisement, addressed to the department of public works and building committee of the city of Chicago, sealed proposals to furnish all the materials and do all the work for the iron work, complete, in the construction of the new city hall to be erected on the west half of block 39, original town of Chicago. For basement, $15,400; for first story, $17,300 ; for second and third stories, $35,000; for fourth story, with sky-light and roof, $36,602.69,— $105,302.69,—complete, according to their advertisements inviting proposals for the same, and according to the plans and specifications on file in the department of public works of the city of Chicago, for the sum of $105,302.69. This was accompanied, as was required by the advertisement for the proposals, by a bond, indorsed on the proposals, for $1000, conditioned upon the performance and execution by said Sexton of said work or delivery of said materials or supplies according to his proposals, and the execution of a contract therefor. The proposals were accepted, and on the 17th of April, 1878, a contract in writing was entered into, so much whereof as is deemed pertinent to the questions involved in the present litigation being as follows:

      “This agreement, made and concluded this 17th day of April, A. D. 1878, between P. J. Sexton, builder, party of the first part, and the city of Chicago, of the second part:
    “Witnesseth, that the party of the first part, for and in consideration of the payments to be made by the said city of Chicago, as hereinafter set forth, hereby covenants and agrees to furnish, deliver, set up, place and fix complete all the iron work required in the erection of a building for a city hall, including columns, floor beams, girders, roof-frame and skylights, and all other wrought and cast iron or other iron work, as set forth in the plans, diagrams and specifications made and prepared for said work, hereinafter more particularly referred to.' Said work to be done in accordance with plans prepared for the doing of the same, on file in the office of the department of public works of said city, and with the specifications appended hereto and made a part of this contract, said work to be commenced on or before the 1st day of May, A. D. 1878, to progress regularly and uninterruptedly after it shall have been begun, excepting as shall be otherwise ordered by said department, and be finished and fully completed on or before the first day of January, A. D. 1881, time of commencement, rate of progress, and time of completion being essential conditions of this contract. * * * Should the mayor, in charge of the départment of public works, deem it proper or necessary, in the execution of the work, to make any alterations which shall increase or diminish the expense, such alterations shall not vitiate or annul the contract or agreement hereby entered into.
    “And the said party of the first part covenants and agrees to perform said work under the immediate direction and superintendence of the mayor of the city of Chicago, and to his entire satisfaction, approval and acceptance. All material used and all labor performed shall be subject to the inspection and the approval or rejection of said mayor; and the said city of Chicago hereby reserves to its mayor the right finally to decide all questions arising as to the proper performance of said work, and as to whether the rate of progress thereon is such as to correspond with the conditions of this contract; and if said work shall not be begun at the time herein stipulated, or if the rate at which said work shall be performed shall not, in the judgment of said mayor, be such as to insure its progress and completion in the time and manner herein stipulated, or if said work shall be wholly or in part improperly constructed, then to declare this contract forfeited, either as to a portion or the whole of said work, and to relet the same, or to order- the entire reconstruction of said work if improperly done, and in such case of default, or in any case of default, to adjust the difference of damage or price, (if any there be,) which, according to the just and reasonable interpretation of the contract, the said contractor should, in the opinion of said mayor, pay to said city for any failure to properly commence and prosecute, or to properly construct said work in all respects, according to the conditions herein-before specified, or for any other default. And it is hereby understood and agreed, that for any amount of damages or price determined by said mayor to be paid to said city by said contractor for any such default, or for any money paid out by said city on account of said contractor in consequence of any default, there shall be applied in payment thereof a like amount of any money that may be due and owing to said party of the first part on account of said work, so far as there may be any such money, and so far as the same shall be sufficient, and if there shall not be a sufficient amount retained from the said party of the first part, then and in such case the amount to be paid to the said city in consequence of such default shall be a just claim against said contractor and his bondsmen.'
    “In case the said mayor shall deem it necessary to declare any portion or section of such work forfeited, it is hereby expressly stipulated and understood such declaration of forfeiture shall not in any way relieve the contractor from the covenants and conditions of this contract, but the same shall he and remain valid and binding on said contractor. * * *
    “The said city of Chicago hereby covenants and agrees, in consideration of the covenants and agreements in this contract specified to be kept and performed by the said party of the first part, to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of one hundred and five thousand three hundred and two dollars and sixty-nine cents, ($105,302.69,) payment to be made on work actually done on the building, out of any moneys collected by the city for city hall purposes, and duly appropriated and levied for that purpose. * * *
    “It is also agreed by said city, that if the rate of progress shall be satisfactory to said mayor, estimates, in the usual form, will he issued to said party of the first part, during the progress of the work, for eighty-five (85) per cent of the value of the work done and in place at the time of issuing of such estimates, the remaining fifteen (15) per cent being reserved until the final completion and acceptance of said work. ”
    The writing wras signed by Sexton, and by the members of the committee of the common council on public buildings, and by the mayor, in charge of the department of public works, on behalf of the city.
    Evidence was given upon the trial, to the effect that in the office of the department of public works were, at the time, and while the buildings were in progress, what are termed “Specifications of the character of labor and materials required for the iron work for the new city hall,” the concluding part of which would seem to have been intended for publication, but which, in fact, never was published, and is, really, a part of the specifications for the iron work, solely. It reads:

      “Sealed proposals will be received at the office of the department of public works until April 15, 1878, at 11 A. M., 'for furnishing, delivering, fitting and putting in place the wrought and cast iron work, as is exhibited by the drawings and described in the specifications, consisting of the east iron columns and wrought iron work of the several stories, roof and ceiling. * * * All of the above named work must be done in a good and workmanlike manner, agreeable to the plan, specifications and details, and to the entire satisfaction of the superintendent, whose interpretation of the same and his decision shall be final and conclusive, as between the city and the contractor. * * * The city reserves the right to reject any or all bids, if it is deemed for the best interest of the city to do so. And any bid that is not made on the printed form to be obtained at this office, and which does not conform in every respect to the requirements of this advertisement, will not be considered.”
    It was further proved that Sexton was a contractor, and that, noticing the published advertisement, he consulted the plans and specifications in the office of the department of public works, and the architect in charge thereof, for the purpose of estimating upon the iron; that he was referred, by Mr. Cleveland, who was then superintendent of public buildings for the city, to Mr. C. A. Jordan for such information as he might require; that Mr. Jordan was an architect employed as draughtsman in the .office of the department of public works; that he was placed in charge of the drawings by Mr. Cleveland, superintendent of public buildings, etc., and by him instructed to give information and instruction to the contractors. For the purpose of enabling Sexton to make estimates upon the iron work then proposed to be let, he and his assistant, as well as others proposing to make bids, were put in possession of certain plans, which in- the record are called “tracings, ” and W'hich related exclusively to the iron w'ork of the building then proposed to be let. These “tracings ”
      are made upon a semi-transparent paper or cloth, laid over originals, and by drawing upon this paper or cloth the lines and figures appearing through it. There was at the same time in the office, what are termed the “original plans” for the city hall, consisting of many sheets of heavy paper, complicated in their character, and showing the entire building and the various parts of it, in elevation and cross-section.
    Sexton obtained his figures and made his estimates from the tracings placed in his possession for that purpose. Various other persons were seeking the same information for the purpose of bidding, and “originals” or “tracings” were used, as was the custom, indiscriminately. The written specifications for the work contain no dimensions. These were placed upon the drawings, in words or figures, which were, so far as they appeared, intelligible to contractors. The tracings from which Sexton’s quantities were taken, and upon which his bid for the iron work was based, showed, for rafters for the roof, “T” iron, three and one-half by four inches, weighing seven pounds per foot. It also showed the openings for the skylights of the building, and the framework of the roof pertaining thereto, and proper figures representing the. dimensions of the framework, but they showed nothing as a superstructure for sky-light purposes; and the evidence showed that Sexton’s estimates were based upon this showing of the tracings and the instructions of Jordan. And it was further proved tlia£ Sexton was instructed by Jordan, before his proposals were made out, that the plans were not ready for the sky-lights,—that there being no sizes marked on them, he would consequently not include them in his bid; that the iron work to be embraced in the contract was the iron beams for all the stories, the iron columns, or trusses, that support the iron of the ceilings, and the cast iron lintels over the doors, and the “T” irons, and that there were to be omitted from the contract the stair work and all the ornamental work, the railings, and the balustrades and the sky-lights.

      Work was commenced by Sexton under the contract, and prosecuted 'during the balance of the year 1878, the year 1879, and until about September, 1880, but at that time a disagreement arose between Sexton and those representing the city, in regard to the construction of the sky-lights and the weight of the iron rafters to support the roof. The city officials claimed that Sexton’s contract included the construction of the iron work for the superstructure of five sky-lights, ■which would cost about $10,000, and rafters for the roof, weighing ten and one-fourth to thirteen and one-half pounds per lineal foot, and costing from $5,000 to $10,000 more than rafters of similar dimensions weighing only seven pounds per foot. Sexton denied this claim, and contended that the contract did not include the iron work for the superstructure of the sky-lights, and, also, that it only required the rafters for the support of the roof to be of “T” iron, weighing seven pounds per lineal foot. On the 22d of December, 1880, the mayor and commissioner of public works, and superintending architect, declared the contract forfeited as to the roof and sky-lights, because of Sexton’s neglect and refusal to furnish the sky-lights and to furnish “T” iron for rafters weighing from ten and a quarter to thirteen and a half pounds per lineal foot, etc., and proceeded to relet the then unfinished iron work for the fourth story and roof, etc.
    1 Mr. F. S. Winston, Corporation Counsel, for the’appellant:
    The contract is made separable, and a declaration of forfeiture as to part of the contract does not disturb the remainder. 2 Parsons on Contracts, *157; 3 id. *187.
    The parties have treated it as separable by making bids by stories, and making estimates and settlements by stories, and this construction will govern. Vermont Street Church v. Brose, 104 Ill. 206; Garrison v. Nate, 87 id. 215; Chicago v. Sheldon, 7 Wall. 50.

      But if not divisible as to all work done under the contract, prior to the forfeiture, the contract price must govern so far as can be applied. Brigham v. Hawley, 17 Ill. 38; Holmes v. Stummel, 24 id. 370; Evans v. Railroad Co. 26 id. 189; Dobbins v. Higgins, 78 id. 440; Folliott v. Hunt, 21 id. 654.
    A municipal corporation is not bound by the acts and declarations of its agents or employes, unless clearly within the scope of their authority. City of Alton v. Mulledy, 21 Ill. 76; Chicago v. Shober Manf. Co. 6 Bradw. 560; 1 Dillon on Mun. Corp. secs. 445, 447, and cases in note 2.
    Mr. Leonard Swett, and Mr. Jno. N. Jewett, for the appellee :
    The violation of the contract by the city justified Sexton in treating it as rescinded, after which it became dead for all purposes, and he was entitled to recover the market value of the materials and labor furnished by him. Huntley v. Butts, 1 Scam. 410; Herrington v. Hubbard, id. 569; Read v. Phillips, 4 id. 42; Bannister v. Read, 1 Gilm. 98; Hill v. Green, 4 Pick. 114; Gillett v. Maynard, 5 Johns. 85 ; Selby v. Hutchinson, 4 Gilm. 319; Webster v. Enfield, 5 id. 299; Schillo v. McEwen, 90 Ill. 79; Lincoln v. Schwartz, 80 id. 134.
   Mr. Justice Scholfield

delivered the opinion of the Court:

When this ease was before us at a former term, (Sexton v. City of Chicago, 107 Ill. 323,) the only question considered or decided related to the rule of law applied by the Superior Court to the facts before it in determining what was the contract between Sexton and the city. That court had, in rendering judgment, as the record disclosed, held that the city could not be estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to work by, were the plans for the doing of the work “on file in the office of the department of public works,” within the contemplation of the contract. Entertaining this view of the law, the judgment in favor of the defendant logically followed, for, in that view, the contract was properly forfeited to the extent it was so declared, and the evidence disclosed no ground upon which a judgment could be rendered for the plaintiff if he was in the wrong in his construction of the contract. No question, therefore, that might have been pertinent had the Superior Court held that there was ground of recovery sustained by the evidence, was reached. On the trial now brought in review, the Superior Court held, in obedience to the direction of this court in the opinion filed upon reversing the former judgment, that the city was estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to wwk by, were the plans for the doing of the work “on file in the office of the department of public works, ” within the meaning of those words as used in the written contract between the city and Sexton; and having so held, other questions not pertinent in the view held by the Superior Court upon the former trial, arose during the progress of the trial, and were ruled upon by the court.

We entirely concur in the ruling of the Superior Court on the first ground urged for a reversal of the judgment below, ■which is, that that court erred in not holding that the contract between Sexton and the city is, by its terms, divisible, and that therefore a forfeiture of a part did not affect the residue. In our opinion, this construction of the contract is not admissible. The undertaking of Sexton'is, “for and in consideration of the payments to be made, * * * to furnish, deliver, set up, place and fix complete all the iron work required in the erection of a building for a city hall, ” etc.; and the undertaking of the city is “to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of $105,-302.69.” It is true the amount is made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together; but this was, evidently, merely for the purpose of furnishing the data upon which the estimate was made, for there is nowhere any agreement to receive and pay for the work b.y stories. On the contrary, it has been seen payment is to be made of the aggregate amount when the contract shall be wholly carried out. The provision authorizing estimates to be made is conditional upon the rate of progress of the work being satisfactory to the mayor. But the language in nowise limits the estimates by the stories, and it expressly provides that fifteen per cent of the estimates shall be reserved, not until the completion of the work on the story on which the estimates are made, but until the “final completion and acceptance of said work. ” The power to declare a forfeiture, given to the mayor by the contract, is not an arbitrary power, to be exercised by him capriciously, but it is, in its nature, judicial, and can be only exercised when acting in good faith and for reasonable cause, and then its exercise is not limited to stories. It may be for the part of a work on a given story as well as for the whole of the work on a story. We are clear in the opinion that the contract is an entire one, in which the consideration for each undertaking is the consideration for every undertaking, and in which the benefits presumed to result from the performance of the entire contract, instead of benefits presumed to result from the performance of separate parts of the contract, were in anticipation.

But upon the next ground urged for a reversal of the judgment below, the law is, in our opinion, with appellant. The , Superior Court was asked to hold, but refused to do so, that so far as materials were furnished and work done under the special contract, the price therefor must be governed by its stipulations, and proceeded to hear evidence and render judgment for the value of such materials and work, entirely disregarding the stipulations of the contract. The same question was directly before this court in Folliott v. Hunt, 21 Ill. 654, in Evans v. Chicago and Rock Island Railroad Co. 26 id. 189, Holmes v. Stummel, 24 id. 370, and in Dobbins v. Higgins, 78 id. 440, and it was held that, in cases like the present, so far as the work is done and materials furnished, to recover for which the suit is brought, under a special contract, its stipulations must govern as to the value of such work and materials. The question was not before us in Lincoln v. Schwartz, 70 Ill. 134, nor in Cook County v. Harms, 108 id. 151. In the first named of these eases the rule was recognized that the special contract affords the rule of damages, so far as it can be traced or followed, but it was held that, under the evidence, it did not appear that the judgment would have been any more favorable to the appellant had the correct rule been adopted, than it was under the rule laid down in the instruction, and that therefore there was not such error as would authorize a reversal. In the other case, the only question having any apparent analogy was what was to be regarded as within the meaning of the terms “changes, additions and alterations, ” as used in the contract; and we held that any material departure from the plans and specifications, resulting in a new and substantially different undertaking, could not be regarded afe within their meaning, and that the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the work. In that case, the work was not done under or pursuant to the terms of the contract, but entirely beyond and outside of its terms.

This question was not before us when the case was here before. It is undoubtedly true, as stated by the judge of the Superior Court in giving his reasons for his rulings, that in the opinion then filed it was said: “Whether the city, under the circumstances, was estopped from denying the correctness of the plans thus furnished appellant, and for that reason had no right to-declare a forfeiture of the contract, or whether, hy reason of a mutual mistake, caused by the negligence of the city, as to the subject matter of the contract, no contract was created between them, it is not important to inquire, as in either case the law is with the appellant, and he therefore had the right to acquiesce in- the forfeiture of the contract, and proceed, as he did, upon a quantum meruit for the materials and his services. ” And if the case had been one wherein the court would have been authorized to find, under the evidence, that no contract was, in fact, created between the parties, of course then there would have been no terms of contract to apply to the value of the labor and materials. But the court did not then find, nor would it have been authorized to have found, that there was no contract between the plaintiff and the defendant, and, as the present record is understood, there is really no question as to the existence of a contract. An. instrument in writing, expressing the mutual undertakings and obligations of the parties, was signed by appellee and those authorized to represent appellant. This constituted some kind of a contract between the parties, and in an action at law growing out of it, it was for the court to declare its legal effect. If through fraud, accident or mistake, material matters were omitted, or the minds of the contracting parties, in fact, never came together, the remedy was in equity, to rectify and reform, or rescind and cancel, the contract. Mercantile Insurance Co. v. Jaynes et al. 87 Ill. 200; Andrus et al. v. Mann, 92 id. 40; Bispham’s Principles of Equity, (2d ed.) sec. 468, p. 515.

It was claimed by the present appellee, who was the appellant then, that the plans or tracings furnished him by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, after-wards, to work by, were to be construed and read as part of the contract, while the present appellant, who was the appellee then, denied this, and claimed that, instead of such plans or tracings, certain other plans or tracings, spoken of by the. witnesses as “originals,” and on file in the office of the department of public works, were to be construed and read as part of the contract. That- one or the other of these should be so construed and read, was settled by the language of the contract, and we held that it should be the former. It was very true, as said in the opinion, that in any view, whether there was a contract or not, there might be a recovery under a quantum meruit and a quantum valebant for the value of the labor performed and materials furnished, but the remark was unnecessary, and not intended as a declaration that there was, in fact, no contract proven. A contract was proven then, and is now proven, and the value of the work done and materials furnished must be fixed by-the stipulations of that contract, so far as they can be applied. In all other respects the rulings below are, in our opinion, free of objection.

The question of estoppel was settled by the former opinion. The propositions of law held by the Superior Court in this respect are somewhat strained. They seem to go beyond any decision of this court, and, as we conceive, they go beyond what the case requires for its decision. But if, in the rather extreme hypothesis contemplated in the propositions held by the court, the court was of opinion that the city would have been estopped, much more must the court have been of opinion that the city was estopped upon the facts actually before the court, as disclosed by the record; and so it must follow that any error in that ruling was harmless. We hold, simply, that a municipal corporation may be estopped by the action of its proper officers, when the corporation is acting in its private, as contradistinguished from its governmental, capacity, and has lawful power to do the act. Here, the' city had power to make a contract to do the work, and furnish the materials, clone, and furnished by- Sexton. It owed the duty to prepare and furnish him with accurate plans and tracings. It had an office where these were to be kept, but, of necessity, that office was to be in charge of some one with power to preserve the maps, tracings, etc;, and hand them out for the inspection of those interested. It could not be allowed that everyone desiring to examine the plans and tracings should be permitted to enter the office and .hunt and select for himself. The city owed the duty to have a competent person in charge of this'office, and to see that he discharged his duty. His act in selecting and handing out plans and tracings was its act. There is nothing new in thus holding a municipality responsible for the want of fidelity of those who act for it. Suits of that kind are of daily occurrence. The liability thus imposed is not within the constitutional and statutory limitations in regard to-the creation of indebtedness.

For the error in regard to the measure of damages, the •judgments of the Appellate and Superior Courts are reversed, and the cause is remanded to the Superior Court for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Tunnicliff

text:
    The City of Chicago v. The Baptist Theological Union.

      Filed at Ottawa September 21, 1885.

    1. Special assessments—exemption therefrom—power of the legislature in that regard, under constitution of 1848. The provision in section 3, article 9, of the constitution of 1848, that “the property of the State and counties, both real and personal, and such other property as the General Assembly may deem necessary for school, religious and charitable purposes, may be exempt from taxation, ” is a limitation upon the powers of the legislature to grant exemptions from taxation except as to those specifically authorized by it. That clause prohibits the legislature from granting any exemption to religious or charitable corporations, except from general taxation, and a clause in a charter exempting the property of the corporation from special assessments for local improvements is unconstitutional and void.
    2. Under the constitution of 1848, the principles of equality and uniformity enjoined by it apply to special assessments for local improvements, the same as to general taxation; and acts of the legislature, and ordinances of cities acting by its authority, attempting to create exemptions not specially authorized by that instrument, are void.
    3. Same—Baptist Theological Union—constitutionality of exemption in its favor. Section 7 of the charter of the Baptist Theological Union, granted in 1865, providing that “the property, real and personal, belonging to said corporation, at any and all times hereafter, shall be free and exempt from all taxation and assessments, special or general, for any and all purposes whatever, ” is held unconstitutional and void under the constitution of 1848, in so far as it attempts to exempt the property of that corporation from assessment of benefits for local improvements.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. F. S. Winston, Corporation Counsel, for the appellant:
    Exemptions from taxation or assessment are to be strictly construed, and the authority to make the same must be clear and unambiguous. Taxation is the rule, exemption is the exception. Cooley on Taxation, 146; Cooley on Const. Lim. 393; Sedgwick on Stat. and Const. Law, 344, 632; Tucker v. Ferguson, 22 Wall. 575; Northwestern University v. People, 80 Ill. 333; People v. Graceland Cemetery Co. 86 id. 336.
    An exemption from taxation does not exempt from municipal assessments for local improvements; nor does the power to exempt from taxation permit an exemption from special assessments. Canal Trustees v. Chicago, 12 Ill. 403; Higgins v. Chicago, 18 id. 276; Chicago v. Colby, 20 id. 614; Peoria v. Kidder, 26 id. 352; Wright v. Chicago, 46 id. 44; Nix v. Post, 57 id. 121; Cook County v. Chicago, 103 id. 646 ; McLean County v. Bloomington, 106 id. 209; Mayor of New York, 11 Johns. 77; Buffalo City Cemetery Co. v. Buffalo, 46 N. Y. 506; People v. Davenport, 91 id. 574; Baltimore v. Green

      mount Cemetery Co. 7 Md. 205; Boston Society v. Boston, 116 Mass. 181.
    Under the constitution of 1848, the rule of equality and uniformity applied as well to special assessments as to taxation, and no exemptions therefrom could be made by the legislature, unless clearly authorized by the clause of the constitution relating to exemptions. City of Chicago v. Baer, 41 Ill. 306; City of Ottawa v. Spencer, 40 id. 211; City of Chicago v. Larned, 34 id. 267; O’Kane v. Treat, 25 id. 557; Hunsaker v. Wright, 30 id. 146.
    Section 3, article 9, of the constitution of 1848, which provides that “the property of the State and counties, and such other property as the General Assembly may deem necessary for.school, religious and charitable purposes, may be exempt from taxation, ” was in itself a limitation upon the power of the legislature either to exempt any other property from taxation, or to exempt such property from any other burden except the burden of taxation. Northwestern University v. People, 80 Ill. 333; University v. People, 9 Otto, 309; Harward v. St. Clair Drain Co. 51 Ill. 130; Gage v. Graham, 57 id. 144; Madison County v. People, 58 id. 456; Primm v. City of Belleville, 59 id. 142; Board of Directors v. Houston, 71 id. 318; Craw v. Village of Tolono, 96 id. 255.
    Messrs. Holden & Fabson, for the appellee:
    A charter is a contract, which can not be changed or annulled without the consent of both contracting parties. Neustadt v. Railroad Co. 31 Ill. 484; Bank of R. v. County of H. 21 id. 59; Burt v. Shipman, 4 Scam. 190; Bruffett v. Railroad Co. 25 Ill. 355; Reaper Bank v. Willard, 24 id. 438.
    The constitution is not a grant of power, but a restriction upon the powers of the legislature. It is competent for the legislature to exercise all powers not forbidden. Sawyer v. City, 3 Scam. 130; City v. Larned, 34 Ill. 280; State T'reasurer v. Collector, 28 id. 512.

      A prohibition as to exemption from taxation would not extend to an exemption from special assessments. City v. Colby, 20 Ill. 614; Canal Trustees v. City, 12 id. 406; City v. Kidder, 26 id. 357; Bank v. Campbell, 42 id. 490.
    The rule of uniformity is not the main principle of special assessments. Hundley v. Comrs. 67 Ill. 565.
    Public property of the State, county or municipal corporations may be exempted from special assessments. Higgins v. City, 18 Ill. 280.
    There is no authority for special assessments on city property. Taylor v. People, 66 Ill. 322.
    The appropriation of property for theological instruction is regarded as a charitable use, and enforced as such. Gilman v. Hamilton, 16 Ill. 225.
    The exercise of the exempting power in a charter rests upon a different principle from a mere exemption. Hunsaker v. Wright, 30 Ill. 149.
    The appellee’s charter has been sustained as to the exemption from taxation. People v. Soldiers' Home, 95 Ill. 562.
    The opposition between the law and the constitution must be clear and strong to authorize the court to pronounce the law void- Acts of the legislature will be sustained, if it is possible so to do.
    Questions of policy have no weight. People v. Marshall, 1 Gilm. 689; Bruce v. Schuyler, 4 id. 274; Board v. Railroad Co. 44 Ill. 229; Bunn v. People, 45 id. 397; People v. Salomon, 46 id. 333; McVeigh v. City, 49 id. 318.
    The legislature possesses plenary power in reference to taxation, except as restricted by the constitution. Porter v. Railroad Co. 76 Ill. 573.
    Exemptions from taxation and assessment include special assessments for benefits. Brightman v. Kirner, 22 Wis. 594; Railroad Co. v. City, 21 Minn. 526; State v. City, 7 Vroom, 478; Olive C. Co. v. City, 93 Pa. St. 129; Harvard College v. City, 104 Mass. 470.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

This was a proceeding by appellant, under the general act for the incorporation of cities and villages, to open Bhodes avenue, in the city of Chicago, under a petition filed for that purpose on the 31st of October, 1883, in the Superior Court of Cook county. The damages for the property to be taken having been ascertained, a supplemental petition was filed, under article'9, of chapter 24, of the Bevised Statutes, concerning cities, villages and towns, in the same court, to assess the benefits of such opening upon property benefited thereby, and to that extent raise money to be applied toward paying the damages occasioned by making the improvement in question. The appellee claims that it should be exempt from the payment of such assessment of benefits, under section 7 of its charter, granted to it by the legislature of this State in 1865, which is as follows :

“Sec. 7. The property, real and personal, belonging to said corporation, at any and all times hereafter shall be free and exempt from all taxation and assessments, special or general, for any and all purposes whatever. ”

Appellant insists that if this section is to be construed as embracing assessments against this property upon the ratio of benefits which it will receive from the opening of the street, then, so far as such assessments are. concerned, it is in conflict with the constitution of 1848, which was in force at the time appellee’s charter was granted, and is therefore to that extent void.

It has been repeatedly held by this court that under that constitution, as to property not specially authorized by it to be exempted therefrom, the principles of equality and uniformity enjoined’by it are as applicable to special assessments of the character in question as to taxation in general, and that acts of the legislature, or ordinances of cities or towns acting by its authority, attempting to create such exemptions, are void. This question was elaborately discussed, and so held, in the case of City of Chicago v. Lamed, 34 Ill. 267, and was followed in the case of City of Chicago v. Baer, 41 Ill. 306, in which last case it was held that an ordinance exempting a street railway track from special assessments levied upon other property along the street in which the railway track was laid, for the purpose of paving the street, was unconstitutional, and the assessment not collectible as against any of the property. The late Mr. Justice Lawbence, in delivering the opinion of the court, used this language: “We will now state the ground upon which we place our decision. In our judgment this ease must be clearly decided upon the principles established by this court as the law of this State, in the case of City of Chicago v. Larned, 34 Ill. 267. That case was very fully argued, and very maturely considered by the court, and we are entirely satisfied with the conclusions there announced. It was there held that the constitutional provision requiring equality of taxation, applied as well to special assessments for improvements of this character as to any other form of taxation; that when the burden is to be imposed upon those who are benefited by the proposed improvement, it must be imposed upon all who are directly benefited, in the ratio of the benefits, since it would be in violation of the equality sought to be secured by the constitution, as well as all just principles of taxation, to exempt a portion of those benefited, and thereby increase the burden upon the remainder. ” To the same effect is the ease of City of Ottawa v. Spencer, 40 Ill. 211.

There is not, and can not be, any claim of power in the legislature to depart from this rule of equality and uniformity "under the constitution we are considering, unless it can be found in section 3, article 9, which is as follows: “The property of the State and counties, both real and personal, and such other property as the General Assembly may deem necessary for school, religious and charitable purposes, may be exempt from taxation. ” This section has always been held to be a limitation upon the powers of the legislature, and it can grant no -exemptions except those authorized by it. It is conceded that this property is held by appellees for “religious and charitable purposes, ” within the meaning of said section, as it ivas construed by the Supreme Court of the United States in the ease of University v. People, 9 Otto, 309, and would therefore be exempt from general or special taxation, under the seventh section of appellee’s charter. But it is claimed that assessments of benefits for local improvements are not embraced in the term “taxation, ” and whether it should be so held or not is the only question presented by the record for our consideration.

The distinction between taxation and assessments upon property, in the ratio of benefits derived, for local improvements, came before the Supreme Court of the State of New York as early as 1814. In the matter of the Mayor of New York, 11 Johns. 77, where the question was, whether property belonging to certain churches was liable to assessments of this character, the statute of that State declaring “that no real estate belonging to any church or place of public worship * * * shall be taxed by any law of this State, ” the court say: “The word ‘taxes’ means burdens, charges or impositions put or set upon persons or property for public uses, and this is the definition which Lord Coke gives to the word ‘talliage,’ (2 Inst. 532,) and Lord Holt, in Garth. 438, gives the same definition, in substance, of the word ‘tax.’ The legislature intended by that exemption to relieve religious and literary institutions from these public burdens, and the same exemption was extended to the real estate of any minister, not exceeding in value $1500. But to pay for the opening of a street in a ratio to the ‘benefit or advantage’ derived from it, is no burden. It is no talliage or tax, within the meaning of the exemption, and has no claim upon the public benevolence. Why should not the real estate of a minister, as well as other persons, pay for such an improvement, in proportion as it is benefited ? There is no inconvenience or hardship in it, and the maxim of the law, that . qui sentit commoclum debet sentire onus, is perfectly consistent with the interests and dictates of science and religion,”— and held that the claim of the churches to be exempt from these assessments could, not be sustained.

The case of Canal Trustees v. City of Chicago, 12 Ill. 403, is directly in point upon this question. That was a proceeding for the purpose of opening a street in the city of Chicago, and presented the question whether the real estate belonging to the trustees of the Illinois and Michigan Canal was liable to be assessed for benefits .the property would derive from the opening of the street. The 13th section of the act by virtue of Avhich the canal lands were granted to the trustees, declared that “the said lands and lots shall be exempt from taxation of every description, by and under the laAvs of this ■State, until after the same shall be sold and conveyed by said trustees, as aforesaid.” Mr. Justice Teeat, in delivering the opinion of the court, said: “It is contended that the assessment in question falls within this exemption. In our opinion the exemption must be held to apply only to taxes levied for State, county and municipal purposes. A tax is imposed for some general or public object. It is an exaction made for the purpose of carrying on the government directly, or through the medium of municipal corporations, which are but parts of the machinery employed in conducting the operations of the government. It is a charge on an estate that lessens its value. In the proportion in Avhich the owner is required to pay is his pecuniary ability diminished. This is the sense in Avhich the term ‘taxation’ is used and understood. A reference to two or three adjudged cases will not be inappropriate. In the matter of the Mayor of New York, 11 Johns. 77, an exemption in favor of churches from being ‘taxed by any law of the State,’ was held to refer only to general taxes for the benefit of a town, county, or State at large, and not to extend to special assessments on the property of churches for benefits resulting thereto by the opening, enlarging or improving of streets. In Blecker v. Ballou, 3 Wend. 263, a covenant on the part of a lessee to pay ‘all taxes’ on the demised premises, was held not to embrace a special assessment for pitching and paving a street in front of the property. In the case of Northern Liberties v. St. John’s Church, 13 Pa. St. 104, a general law exempting churches ‘from all and every county, road, city and school tax,’ was construed not to extend to an assessment for laying water pipes along the grounds of a church deemed to be benefited thereby. Those eases can not be distinguished in principle from the one before us. The assessment in question has none of the distinctive features of a tax. It is imposed for a special purpose, and not for a general or public object. It is not a charge on an estate which reduces its value. * * * The improvement is made for the improvement of a particular district, and the property there situated is required to bear the expense in- the proportion in which it is benefited. The assessment is precisely in the ratio of the advantages accruing to the property in consequence of the improvement. It is but an equivalent or compensation for the increased value the property derives from the opening of the street.”

The doctrine of this cáse has been recognized and adhered to in the case of City of Chicago v. Colby, 20 Ill. 614, in McBride’s case, 22 id. 576, City of Peoria v. Kidder, 26 id. 351, Town of Pleasant v. Kost, 29 id. 490, Lamed’s case, 34 id. 203, and in the case of County of McLean v. City of Bloomington, 106 id. 209. In the ease last cited it is said, in the opinion by Breese, Justice, page 272: “All the cases decided by this court, so far as we have examined, hold that these special assessments are not taxes, for the reason, as plainly appears from the opinions delivered, that when laid in the ratio of benefits they are not burdens. It is that element which has reconciled this court to their imposition, and induced the court to range the power to make them under the power of eminent domain, the ‘just compensation’ being the benefits flowing to the property from the improvements, and which are required to be estimated together with the damages. Nor can a ease be found decided by this court on principle variant from this, the equation of benefit and burden forming the ground work of them all. ”

We are of opinion that the section of the constitution of 1848, above quoted, prohibited the legislature from granting to appellee any exemptions except from taxation, and that the assessment of the benefits in question does not come within the meaning of that term as used in the seventh section of its charter, and that such attempted exemption is void, and should have, been disregarded by the court below.

The judgment of the court is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.


author: Mr. Justice Craig

text:
    The Lake Shore and Michigan Southern Railway Company v. Mary O’Conner, Admx.

      Filed at Ottawa November 14, 1885.

    1. Negligence—master and servant—degree of care required of the latter. It is the duty of a person engaged to work in a dangerous place, to exercise a high degree of care, in view of the dangers to which he may be exposed; but the law does not require that he shall exercise the highest degree of care and caution to entitle him to recover for an injury received from the negligence of other servants and agents of his employer.
    2. Same—injury to a railway switchman—right of an engine-driver to assume that a switchman would get out of the way. A railway engineer was running his locomotive engine and cars thereto attached, within the limits of an incorporated town, at the speed of twenty miles an hour, when, under an ordinance, he had the right to run only at the rate of eight miles an hour, and while so running his train he saw a switchman running upon or near the track swinging a lantern. The switchman was struck by the engine and killed. It was held, in an action against the company to recover for the killing, that an instruction for the defence, to the effect that when the engineer saw the lantern of the switchman and others upon or near the track upon which he was running, he had the right to assume they would get out of the way of his engine before he reached them, was properly refused. It may be, if the train was running only at the rate of speed permitted by the ordinance, that he might then have assumed that the deceased might observe the approach of his train, and get out of the way; but as he was running at a high rate of speed at a place where the switchman was authorized to believe the approaching train would run only at the rate of eight miles an hour, the engine-driver had no right to assume that the switchman would get out of the way.
    3. Same—proper care and negligence as questions of law or fact. Whether a switchman engaged in the service of a railway company, and who is killed by an engine on a track while in the discharge of his duties, was guilty of negligence in failing to keep a constant lookout for the approach of engines and trains, is a question of fact for the jury, and not one of law. Therefore, in an action for his death, an instruction that it was the duty of deceased to keep a constant lookout for his safety, and that if he did not, at the time of the accident, keep such lookout, and the injury occurred wholly or in part from such omission, the plaintiff could not recover, was held properly refused, as it in effect declared that certain facts made out a case of negligence, which precluded a recovery.
    4. Same—sufficiency of the declaration to admit proof of an ordinance regulating the rate of speed on a railway. In an action to recover of a railway company for causing the death of the plaintiff’s intestate through negligence, the declaration averred that the deceased was in the employment of defendant, under the orders, direction and control of its servants and agents; that it became his duty to couple and uncouple cars upon a certain track, and to give signals, and that while performing that duty with due care on his part, the defendant, by its servants, carelessly, negligently, improperly, unlawfully and wrongfully was driving and managing an engine and car attached thereto, when, by and through negligence, etc., of the defendant, the said engine and car ran at a great and unlawful rate of speed, and struck the deceased, and that the place where the injury occurred was within an incorporated town, and that section 1 of an ordinance of the town was as follows, (giving the same in hcec verba,) which prohibited the engine and car from running at a greater speed than eight miles an hour: Held, that although the declaration was not well drawn, and obnoxious to a demurrer, it was sufficient to justify the admission of the ordinance in evidence.
    5. Defective pleading—cured after verdict. Where there is any defect, imperfection or omission in any pleading, either in form or substance, which would be fatal ón demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated or omitted, and without which no recovery could be presumed, such defect or omission is cured by the verdict.
    6. Practice—directing what the verdict shall be. Where there is evi- . dence before the jury upon which a verdict for the plaintiff might rest, it is
    the duty of the court to refuse an instruction to find for the defendant.
    7. But where there is no evidence upon which a recovery can be had, or where it is so slight that the court would be bound to set aside a verdict for the plaintiff, on motion, such an instruction is proper.
    8. Instruction—ignoring a necessary element to make out defence. Instructions for the defence, in an action against a railway company for negligence resulting in the death of plaintiff’s intestate, are fatally defective if they ignore the fact that defendant was required to use care and caution in running its trains.
    9. Error will not aw ays reverse—as to instructions. Where no instructions are asked or given in behalf of the plaintiff in a case, while on the part of the defendant eight well prepared ones are given, presenting all the law involved in the case fairly to the jury, slight errors in refusing some . others asked by the defendant will afford no ground for a reversal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Cyrus D. Boys, and Mr. Pliny B. Smith, for the appellant :
    In a case like this a municipal ordinance is not admissible in evidence, unless its violation is pleaded as a ground of complaint. Railroad Co. v. Godfrey, 71 Ill. 510; Railway Co. v. Klauber, 9 Bradw. 620.
    The ordinance, though set out in the declaration, is not pleaded.
    Where two acts of negligence are charged, and an injury is alleged to be the consequence of one of them, only, it is error to admit evidence of the other. Railway Co. v. Jones, 76 Ill. 311.
    The declaration must allege that the act of negligence complained of contributed to the injury, and its omission to do so is fatal to a recovery. McGanahan v. Railroad Co. 72 Ill. 557.

      Where the injury is not willfully or wantonly inflicted, it must appear that it was occasioned by defendant’s negligence, and it must not appear that there was contributory negligence on the plaintiff’s part. Donaldson v. Railway Co. 21 Minn. 293; Allyn v. Railway Co. 115 Mass. 77; Railway Co. v. Miller, 25 Mich. 274; Gladmore v. Railway Co. 15 Wall. 401.
    Where there is no evidence that the injury was willfully, wantonly or intentionally inflicted, and the uncontroverted facts show contributory negligence on the part of the plaintiff, it is proper for the court to rule, as a matter of law, that the plaintiff can not recover. Allyn v. Railroad Co. 105 Mass. 77; Railway Co. v. Hunter, 33 Ind. 359; Pleasants v. Faul, 22 Wall. 120; Henry v. Railway Co. 76 Mo. 139.
    Where the evidence is such that a verdict for the plaintiff must be set aside, the court may direct a finding for the defendant. Simmons v. Railroad Co. 110 Ill. 346; Teft v. Ashbaugh, 13 id. 603; Poleman v. Johnson, 84 id. 270; Phillips v. Dickson, 85 id. 11; Amos v. Sinnott, 4 Scam. 447; Abend v. Railroad Co. 111 Ill. 208.
    It is gross negligence, as matter of law, for a person on a railroad track not to keep a constant watch or lookout for an approaching train. Hetherington v. Railway Co. 83 Ill. 515 ; Railway Co. v. Hart, 87 id. 534; Railway Co. v. Bell, 70 id. 106; Railroad Co. v. Damerell, 81 id. 455.
    Burden of proof is on plaintiff to show that he observed reasonable care and caution for his personal safety. Damerell’s case, 81 Ill. 454.
    Where the facts are undisputed, the question of contributory negligence is one of law. Grows v. Railway Co. 67 Maine, 100; Hoag v. Railway Co. 85 Pa. St. 293; Fleming v. Railroad Co. 49 Cal. 258; Hodges v. Railroad Co. 49 N. Y. 223; Railway Co. v. Elliott, 28 Ohio St. 340; Artz v. Railway Co. 34 Iowa, 154.
    The engineer has the right to assume that a person will get off the track before the train reaches him. Railroad Co.
      v. Manly, 58 Ill. 300; Railroad Co. v. Lee, 68 id. 576; Railway Co. v. Jones, 76 id. 376.
    Mr. John M. Southworth, and Mr. William Prescott, for the appellee:
    The ordinance was set out in hcec verba, and this was sufficient to justify its admission in evidence.
    Formal defects in pleadings can be reached only by demurrer. Tucker v. Randall, 2 Mass. 283; Woodward v. French, 31 Vt. 344; Catlin v. Lyman, 16 id. 47.
    The defects in the declaration were cured by the verdict. 1 Chitty’s Pleading, 236, 255, 256, 551.
    The jury were justified in attributing the killing to the speed of the train. Railroad Co. v. Gregory, 68 Ill. 228; Railway Co. v. Henks, 91 id. 412.
    The violation of the ordinance and the killing being proved, a prima facie case of negligence was made out,—the burden of proof to remove was on the appellant. Railway Co. v. Deacon, 63 Ill. 91; Railroad Co. v. Haggarty, 67 id. 113.
    Counsel also discussed at length the ruling of the trial court in giving and refusing instructions.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by appellee, legal representative of Jeremiah O’Connor, deceased, against the Lake Shore and Michigan Southern Railway Company, 'to recover damages for the death of O’Connor, caused, as is alleged, by the negligence of the servants of the railway company, while he was in the discharge of his duties as switchman in the company’s service. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff for $5000, which, on appeal, was affirmed in the Appellate Court.

The accident which resulted in O’Connor’s death occurred at Englewood, within the town of Lake, in Cook county, which, as appears, is an incorporated town. On the trial the plaintiff offered in evidence an ordinance of the town of Lake, which provides that the speed of passenger trains shall not exceed twelve miles an hour, and that of freight trains shall not exceed eight miles an hour. The defendant objected to the introduction of the evidence, on the ground, as claimed, that the declaration makes no complaint based upon an alleged violation of the ordinance of the town of Lake. In the first, second and third counts of the declaration the ordinance regulating the rate of speed of trains is set out in hcec verba, in connection with an averment substantially as follows: That Jeremiah O’Connor was in the employment of defendant under the orders, direction and control of its servants, officers and agents; that it became his duty to couple and uncouple cars situated upon a certain track, and to give signals; that while the said O’Connor was then and there so performing said duty of coupling and uncoupling cars and giving signals, with all due care and caution and diligence on his part, all of which the defendant well knew and had notice, the defendant, by its servants, carelessly, negligently, improperly, unlawfully and wrongfully was driving and managing said engine and car attached thereto, when by and through the negligence, carelessness and improper conduct of the defendant the said locomotive engine and car then and there ran at a great and unlawful ratevof speed, and struck with great force and violence upon and against the said O’Connor, who was thereby so injured that he died; that the town of Lake is an incorporated town, by virtue of a special act approved March 26, 1869, and that section 1 of an ordinance of said town, entitled “Bailroads,” is as follows, viz.: Then follows the ordinance in hcec verba.

We do not regard the declaration well drawn or technically correct as a pleading, and had a demurrer been interposed, we have no doubt it might have been sustained; but at the same time we are inclined to hold that under the averments of the declaration it was proper to admit the ordinance in evidence. The ordinance having been set out in full, the defendant was not misled or taken by surprise. Moreover, it was alleged that the train ran at a great and unlawful rate of speed, and struck O’Connor, who was thereby injured, and died. Under these averments the defendant was notified that the plaintiff relied upon the ordinance and the running of the train contrary to its provisions, as a ground of recovery, and if the averments were not sufficient, a demurrer should have been interposed, so that the declaration might have been changed, and a specific averment inserted that the injury occurred by reason of the negligence of the defendant in running its trains at a greater rate of speed than was allowed by the ordinance.

But there is another view that may be taken of this question. The plaintiff had the right to prove the averments of her declaration. She had set out the ordinance as a part and parcel of the declaration, and the ordinance was admissible in evidence to prove the facts set out in the declaration, to-wit, the existence of an ordinance as averred. Then, after the evidence is admitted, if the sufficiency of the declaration is called in question, the answer to that position is, after verdict and judgment the, insufficiency of the declaration can not be availed of. Under the doctrine of intendment, after verdict the defect is cured. Chitty, in discussing this subject, says: “The doctrine upon this subject is founded on the common law, and is independent of any statutory enactments. The general principle upon which it depends, appears to be, that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect or omission is cured by the verdict. ”

The next error relied upon is the decision of the court refusing defendant’s instruction No. 1, which directed the jury that the evidence was not sufficient to sustain a verdict for plaintiff, and the verdict should be for the defendant. This court has sanctioned an instruction like the one in question in a proper case. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, is an authority in point. But this was not a case where an instruction of that character would have been proper. There was evidence before the jury upon which a verdict for the plaintiff might rest, and when such is the case it is the duty of the court to refuse such an instruction. Had there been no evidence upon which a verdict could be predicated, or if the evidence had been so slight that the court would be bound to set aside the verdict, on motion, had one been rendered for the plaintiff, the instruction would have been proper; but such was not the fact.

It is next claimed that the court erred in refusing the defendant’s third instruction, which, in substance, directed the jury, as a matter of law, that when the engineer in charge of the train which struck the deceased, saw the lanterns of the switchmen upon or near the track upon which he was running, he had the right to assume they would get out of the way of his engine before he reached them, and had the right to manage his engine on that supposition. Under the facts as established by the evidence we do not regard the instruction correct. ' The evidence tends to prove that the engineer was running his train at a rate of speed prohibited by law,— at the rate of twenty miles an hour, when he only had the right to run at the rate of eight miles an hour. It may be if the engineer had been running at a slow rate of speed, that he might then have assumed that the deceased might see the approach of his train, and get out of the way; but when he was running at a high rate of speed, at a place where the deceased was authorized to believe the approaching train would run only at the rate of eight miles an hour, the engineer had no right to assume that the deceased would get out of the way.

It is also claimed that the court erred in refusing defendant’s eighth instruction, which, in substance, directed the jury that it was the duty of deceased to exercise constantly the highest diligence and caution, and if, at the time of the accident, he was not in the exercise of such care and diligence, plaintiff could not recover. Where a person is engaged to work in a dangerous place, it is clearly his duty to exercise a high degree of care, in view of the dangers to which he may be exposed; but does the law require a person engaged in such service to exercise the highest diligence and caution? We think ordinary care and diligence, in view of the perils to which the person is exposed, is all that should be required,— such care and diligence as a prudent person would ordinarily exercise for his safety under like circumstances. If the rule indicated by the instruction was adopted, a person could not recover if he was guilty of any negligence, however slight. We do not understand this to be the law. We have held in many cases, that a person guilty of slight negligence may recover when the negligence of the defendant is gross in comparison with that of the plaintiff, which is slight. The instruction does not announce a correct legal principle. It is in conflict with the rule indicated in Wabash Railway Co. v. Henks, 91 Ill. 413, and in our opinion the court ruled correctly in refusing it.

The court refused defendant’s sixteenth instruction, and the decision is claimed to be erroneous. The instruction, in substance, declares that it was the duty of deceased to keep a constant lookout for his safety, and if they find, from the evidence, that at the time of the accident he was not keeping a lookout, and that the injury occurred, wholly or in part, from such omission, plaintiff can not recover. It is no doubt true that common prudence required the deceased to keep a constant lookout for his safety, but whether he did so or not was a question of fact for the jury, and not one of law to be determined by the court. The instruction, in effect, directed the jury that certain facts made out a case of negligence against the deceased, which precluded a recovery, when it was the province of the jury to determine that fact for themselves from the evidence. The ninth instruction is liable to the same objection, and for that reason, if for no other, it was properly refused.

It is also claimed that the court erred in refusing instructions Nos.- 11, 14, 17 and 18, respectively. It will not be necessary to go over these instructions in detail, and point out the objections to them. There is one fatal objection to each one of them, and that is, that they each and all ignore the fact that the defendant was required to exercise care and caution in running its train. Under the instructions no care was required from the defendant whatever.

But independent of what has been said in regard to the refused instructions, there is no valid ground for claiming that the jury was improperly instructed, or that the defendant was prejudiced by the ruling of the court in the instructions.' No instructions whatever were asked or given for the plaintiff, but on behalf of the defendant the court gave to the jury eight well prepared instructions, which presented all the law involved in the case, fairly before the jury. Under such circumstances, if the court had committed slight error in refusing some of the defendant’s refused instructions, such errors would afford no ground for reversing the judgment.

So far as appears, after a careful examination of the whole record, the defendant has had a fair trial, and we perceive no good reason for disturbing the judgment of the Appellate Court.

The judgment will be affirmed.

Judgment affirmed.