author: Mr. Justice Magbuder

text:
    Joseph A. Brown et al. v. The City of Chicago et al.

      Filed at Ottawa May 15, 1886.

    1. Time—rale for computing. Where a statute requires ten days’ notice of an application to the court to confirm special assessments, and provides that “if ten days shall not have elapsed between the first publication and the first day of the next term of such court, the hearing shall be continued,” etc., the proper rule for the computation of time is to exclude the day on which the notice is first published and include the day on which the term begins.
    2. Special assessment—notice of further prosecution, after suspension of proceedings—necessity therefor—presumption. If city authorities adopt an order directing the suspension of proceedings to confirm a special assessment for two years, after which no steps are taken for over a year, but an order of confirmation is taken before the two years expire, a bill seeking to enjoin the collection of the special assessment which fails to show that the complainants had no notice of the steps for the further prosecution of the proceedings within the two years, will be defective for want of such allegation.
    3. In the absence of proof to the contrary, it will be presumed that the commissioners making special assessments have discharged their duty in giving the several required notices to the property holders interested, as directed by the statute.
    4. Same—remedy in chancery—defence at law. Where the law gives a party whose land is specially assessed for a public improvement, the right to appear in court and file objections to the same, and the proper notices have been given of the time and place for him to appear and object to a confirmation of the proceedings, if he neglects to appear, and suffers judgment of confirmation to pass, a courts of equity will not afford him relief by enjoining the collection of the assessment.
    Writ of Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Barton & Hoch, for the plaintiffs in error:
    A judgment obtained in a suit by plaintiff’s counsel without any authority from complainant, will be set aside, and proceedings under it'enjoined. Smyth v. Balch, 40 N. H. 363.

      • A statute or instrument requiring that notice shall be published or given “at least” a certain number of days before the act is to be done, or requiring that a certain number of "days shall intervene between the notice and the act, or giving a certain number of days in which an act shall be done, is to be construed as giving such number of clear days, and the day of the notice and the day of the act must both be excluded. Regina v. Shropshire, 8 A. & E. 173; Regina v. Middlesex, 3 Dowl. &L. 109; Reginas. Canal Co. 14 A. & E. 854; Mitchell v. Foster, 4 Perry & D. 150; Walsh v. Boyle, 30 Md. 262; Thorn v. Mosher, 20 N. J. Eq. 257; Richardson v. Ford, 14 Ill. 332; People v. Hatch, 33 id. 9.
    Special assessments being summary proceedings, the statute is to be strictly construed. Barton v. Chicago, 53 Ill. 87; Scammon v. Chicago, 40 id. 146.
    Mr. F. S. Winston, corporation counsel, for the defendants in error:
    If the attorney for the city disregards the order of his client, that is a matter to be settled between them. That was a.matter of no concern to the complainants.
    The order for the stay of proceedings had not the binding force of a contract.
    The notice of ten days was given in apt time. Rev. Stat. chap. 131, sec. 1, subd. 11, and chap. 100, sec. 6; Vairin v. Edmonson, 5 Gilm. 270; Forsyth v. Warren, 62 Ill. 68; Bowman v. Wood, 41 id. 203; Faulds v. People, 66 id. 210.
    But conceding the points to have been fatal to the assessment if presented at the proper time, plaintiffs had the opportunity of presenting them upon the application for judgment, and having failed to do so, they can not now be heard.
    It is nowhere alleged in the bill that complainants did not have actual notice of everything connected with this assessment. They do not deny receiving any of the several notices.
   Mr. Justice Magbuder

delivered the opinion of the Court:

This is a bill in chancery, filed by plaintiffs in error in the Superior Court of Cook county, against the city of Chicago and the collector of Cook county, the defendants in error herein, to restrain said collector from selling certain lots in Chicago for the non-payment of a special assessment for the improvement of Main street in that city. Defendants below demurred to the bill, which, after argument upon the demurrer, was dismissed for want of equity.'

It was alleged in the bill and is here urged, that the county court had no jurisdiction to confirm the assessment, because sufficient notice of the application for such confirmation was not given, in accordance with the requirements in article 9 of the general act for the incorporation of cities and villages. (Bev. Stat. chap. 24, secs. 143, 145.) Section 27 of Article 9 requires, that the commissioners “shall cause at least ten days’ notice to be given, by posting notices, etc., and when a daily newspaper is published in such city or village, by publishing the same at least five successive days in such daily newspaper,” etc. Section 29 provides, that “if ten days shall not have elapsed between the first publication or the putting up of such notices, and the first day of the next term of such court, the hearing shall be continued until the next term of court. ” In this ease, the notices were posted and the first publication was made on January 30, 1885, and-the first day of the next term was February 9, 1885. It is claimed, that “ten days’ notice” was not given. But under the repeated decisions of this court, there was sufficient notice. Excluding January 30 and including February 9, there were ten days. The proper rule for the computation of time, in such cases, is to exclude the day, on which the notice W'as first inserted or posted, and include the day, on which the term commenced. Ewing v. Bailey, 4 Scam. 420; Vairin et al. v. Edmonson, 5 Gilm. 270; Bowman v. Wood, 41 Ill. 203; Forsyth et al. v. Warren, 62 id. 68; Rev. Stat. chap. 100, entitled “Notices,” sec. 6. The language of the statute, which was construed in Vairin et al. v. Edmonson, siqira, and to which the rule, here indicated, was applied by the court, was as follows : “If sixty days’ shall not intervene between the first insertion of such notice and the first term of the court, then the cause.shall be continued, etc. 0

The bill, also, charges, that, after January 3,1884, on which day the petition, required by sections 22 and 23 of article 9, was filed in the county court, and a short time prior to February 4, 1884, plaintiffs in error petitioned the city council to defer action on the improvement in question; that the committee, to whom the petition was referred, agreed, that no further action should be taken for two years; that, in accordance with such agreement, the city council, pn February 4, 1884, entered an order, directing the law department to stay such proceedings for two years; that no further action was taken by the council in the matter, and that the further prosecution of the proceeding was without their authority. The language of the order, passed by the council, was as follows: “Ordered, that the law department be and is hereby directed to stay proceedings for the improvement of Main street, from the south branch of Chicago river to Thirty-first street, for a period of two years.” The bill further alleges, that, on January 29, 1885, the assessment roll, compiled by the com-' missioners appointed to make the assessment, was filed in the county court; that, on February 6, 1885, the affidavit of posting notices and the certificate of publication were filed, from which it appeared, that the notices were posted and the first publication was made, as above stated, on January 30, 1885; .that, on February 9, 1885, the first day of the term, the corporation counsel obtained an order, requiring all parties, objecting to the assessment, to file their objections on or before February 11,1885, and that, on that day, no objections having been filed, the court confirmed the assessment roll.

It will be observed, that the prosecution of the proceedings by the filing of the assessment roll and the giving of notice, etc., was not resumed for a year after the order of February 4, 1884, was entered. The bill is defective in not averring, that plaintiffs in error had no notice of the steps, taken in January and February, 1885, for the further prosecution of the proceedings. Section 27, above referred to, not only requires the posting and publication of notice, but, also, that notice of the assessment and of the term of court, to which the roll will be returned, shall be sent by mail to the property owners. The law will presume, in the absence of proof to the contrary, that the commissioners did their duty and sent such notices by mail. The bill does not aver, that plaintiffs in error did-not receive the mailed notices, nor does it allege that they did not see the posted and published notices, nor that they had no notice of the rule, entered on February 9, 1885, in reference to the filing of objections.

Section 30 of Article 9 provides, that “any person, interested in any real estate, to be affected by such assessment, may appear and file objections, ” etc. If plaintiffs in error did receive notice of the steps, taken. in January and February, 1885, for the prosecution of the proceedings, which had been suspended in February, 1884, they should have filed their objections to the action, so taken, on or before February 11, 1885. If the order, passed by the council on February 4,1884, was a defence to any prosecution of the proceedings, until the two years specified in the order, had elapsed, such defence should have been set up in the county court, at the February term, 1885, before the confirmation of the assessment.

Without considering the other points,' presented by the counsel in their arguments, we think, that, for the reasons, here stated, the demurrer to the bill was properly sustained.

The decree of the Superior Court, dismissing the bill, is, therefore, affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    James O. Anderson v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa May 15, 1886.

    1. Taxation—bridge for railroad purposes, to be assessed as “railroad track’’—and by whom. A bridge across a navigable stream forming the boundary between this and another State, constructed and used exclusively by a railroad company as a part of its continuous line of railroad, for the purposes of taxation, comes within the denomination of “railroad track," and as such is to be assessed only by the State Board of Equalization. Its assessment by the local assessor is without warrant of law, and taxes extended thereon may be enjoined.
    2. Same—and herein, as to the meaning of the act of 1873 relating to the assessment of bridges. The act of 1873, providing that “all bridge structures across any navigable stream forming the boundary line between the State of Illinois and any other State, shall be assessed by the township or other assessor in the county where the same is located, as real estate, ” was not intended to change the method of taxing railroad property or the mode of assessing it, but to apply to bridges not constituting a railroad track exclusively, and to make such structures real estate, for the purpose of collecting taxes thereon.
    3. Same—whether railroad bridge built in excess of power not material. On the question of the proper authority to assess for taxation a bridge built by a railroad company, the question whether the company exceeded its chartered powers in building the bridge is wholly immaterial.
    4. Statutes—construction—looking beyond words to the intent. A thing which is within the letter of a statute is not within the statute, unless it be within the intention of its makers. In determining the meaning of a statute, the courts are not confined to its words, but will regard its purpose, and consider it, in connection with other statutes, in pari materia, and in view of the condition existing.
    Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Kirkpatrick & Alexander, and Mr. Baus Cooper, for the appellant.

      Mr. J. W. Blythe, Mr. Thohas Hedge, and Mr. W. L. Cooper, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill in equity in this case was filed by the Chicago, Burlington and Quincy Bailroad Company, against the collector of taxes of Henderson county, Illinois, to enjoin him from proceeding to collect, through judgment and sale, taxes assessed for the years from 1870 to 1884, both inclusive, upon the east half of a bridge oyer the Mississippi river, opposite Burlington, Iowa. The circuit court decreed the relief prayed, and the defendant appealed.

The single question is, liad the assessor of Henderson county, Illinois, in which the east end of the bridge is located, the right to assess the one-half of the bridge, or was it assessable only by the State Board of Equalization as part of the main track of the railroad of complainant.

It appears that in 1867-8 the Chicago, Burlington and Quincy Bailroad Company erected, with its own money, the structure in question, known as the “Burlington bridge,” across the Mississippi river, from a point in Henderson county, Illinois, to a point in Burlington, Iowa, and was then, and has been ever since, the sole owner thereof, and that the bridge is used exclusively as a railroad track, the total length of the bridge being two thousand two hundred and thirty-seven feet; that the railroad company had in each year, from the erection of the bridge, reported one thousand one hundred and nineteen feet (or the part thereof within the boundary of Illinois) as part of its main track, and the same had been duly assessed and taxes paid thereon as main track, and that the county of Henderson had annually received its due proportion thereof.

In relation to taxation of the realty of railroads, the general Bevenue law of 1872 (Bev. Stat. 1874, chap. 120, sec. 42,) provides: “Such right of way, including the superstructures of main, side or second track, and turn-outs, and the station and improvements of the railroad company on such right of way, shall be held to be real estate for the purposes of taxation, and denominated ‘railroad track,’ and shall be so listed and valued. ” By section 43, the value of the “railroad track” shall be listed and taxed in the several counties, towns, villages, districts and cities, in the proportion that the length of the main track in such county, town, village, district or city bears to the whole length of the road in this State, except the value of the side or second track, and all turn-outs, and all station houses, depots, machine shops or other buildings belonging to the road, which shall be taxed in the county, town, village, district or city in which the same are located. The provision of section 109 is, that the State Board of Equalization shall assess the railroad property denominated in the act as “railroad track. ”

The bridge in question was constructed and used.by the railroad company as a part of its continuous line of railroad, and we can have no doubt that under the general Bevenue law it comes within the denomination of “railroad track,” and is to be assessed by the State Board of Equalization.

But though this might have been the case until 1873, it is contended that since the passage of the act approved May 1, 1873, (Laws 1873, p. 37,) the right to' assess has been in the local assessor. That act provides, “that all bridge structures across any navigable streams forming the boundary line between the State of Illinois and any other State, shall be assessed by the township or other assessor in the county or township where the same is located, as real estate.”

Stress is laid upon the word “all, ”—“all' bridge structures; ” that this must include the bridge in question; that it is not allowable to interpret what has no need of interpretation. It must be admitted that this bridge comes within the letter of the statute, but it is not within its meaning. A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers. 4 Bacon’s Abr. Stat. p. 468, (45.) In determining the meaning of a statute, we are not confined to its words, but may regard its purpose,—consider it, in connection with other statutes, in pari materia, and in view of the condition existing. It appears in the case, that there were, in 1873, eight bridges spanning the Mississippi river, all of which, except the one in question and that at Bock Island, were erected by bridge companies, and have ever since been respectively the property of such bridge companies, and not the property of any railroad company. Such bridges of bridge companies had been regarded as personal property, and as not liable to be» sold for delinquent taxes so as to convey a good title thereto, and to meet a necessity in that respect the statute was passed, and for no other purpose. The act was before this court for consideration in Quincy Bridge Co. v. Adams County, 88 111. 620, where we placed this construction upon it. We then said of it: “The act applies solely to bridge structures, and capital stock is not mentioned in it. The sole object, as appears from its various clauses, especially the emergency clause, was to declare such structures" real estate, they having before that time been regarded as personal property. * * * The emergency clause in the act of 1873 conclusively determines the purpose - for which the act was passed. 1 Whereas, by existing laws, such bridge structures can not be sold for delinquent taxes so as to convey a good title thereto, therefore an emergency,’ ” etc. It was not the purpose of the act to change the method of taxing railroad property, or the mode of assessing it. It was of the system of taxation of railroad property, to distribute the tax upon the main track of railroad among all the counties in the State through which the road runs, by a certain rule of proportion. The assessment or taxation of railroad property as such, was not in the mind of the legislature, and there being no intention to make any change in the system of the taxation of railroad property, we must hold that no change therein, as to the mode of assessment and taxation of the main track of railroad, was effected by the act,—that broad as are its terms, all bridge structures, it did not include the bridge in question, it being railroad track. As such, it was alone assessable by the State Board of Equalization, and the assessment of it by the local assessor was without warrant-of law.

Attempt was made to show that the company had exercised powers not granted to it in building the bridge, in fixing the terminus of its road on the Mississippi river, and in changing the location of the road after having once exercised the power to locate,—all which was without pertinence in this collateral proceeding. The bridge had been built, and was, in fact, a part of the main track of the railroad. It was assessed and taxed as railroad property, and that there may have been the exceeding of chartered powers in the building, is immaterial upon this inquiry of which was the proper authority to assess the bridge.

The decree must be affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Caleb Noble et al. v. School Directors, etc.

      Filed at Springfield May 14, 1886.

      1. School directors—duly to defend suits and protect the interests of district. Persons accepting the position of school directors should not allow their private interest to conflict with public duty; and equity and good faith will require them to defend suits against the district, and protect its property, to the best of their skill and ability, regardless of any private interest they may have.
    2. Impeaching decree-FOR fraud—neglect of public officers to defend suit, where they were personally interested. Persons were elected school directors of a school district pending a bill by two of them against the district, seeking to divest the district of property purchased by it, and they discharged the solicitors employed by their predecessors to defend, and interposed no defence whatever, but allowed a decree to pass in their favor against the district by default. It was held, that as the decree was obtained by breach of official trust, it should not be binding on the district, and would be set aside on a bill by the district, as being obtained by fraud and breach of duty, and a defence allowed.
    3. Same—neglect to make defence, as a bar to relief—exception to the rule in respect to public officers. The rule that denies a party equitable relief against a judgment or decree when he has been guilty of negligence in making a defence, does not apply to the case of public officers, who, for their own private ends, and with selfish motives, allow a judgment or decree to pass against the interests of the public they should represent, for the reason that the public can defend only by and through its proper representatives.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding.
    Mr. George E. Warren, and Mr. W. H. Pogue, for the appellants.
    Mr. O. B. Hamilton, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by school directors of district No. 8, township 7, in Jersey county, against Thomas J. Terry, Caleb Noble, and others, to set aside a decree which had been rendered in the circuit court of Jersey county, at a special term of said court, held in January, 1882, on the ground that the decree was obtained by fraud. The decree sought to be impeached was rendered in the case of Thomas J. Terry et al. v. A. M. Slaten et al., which had been commenced on the 19th day of December, 1876, the defendants being the directors of school district No. 8. The object of the bill, as originally filed, was to enjoin the issuing of §10,000 of bonds of school district No. 8, to purchase certain property known as the “Hamilton Primary School.” It turned out, however, that the bonds had been issued before the filing of the bill and the service of the injunction. After the commencement of the suit, the district employed Snedecker &' Hamilton as its attorneys, and they obtained a dissolution of the injunction. After the injunction was dissolved the complainants amended their bill, and in the amended bill they set up that the bonds had been issued before the filing of the bill, and that the said property had been purchased with the bonds. They therefore prayed that the bonds be decreed to be 'surrendered, and the property reconveyed to the “Hamilton Primary School.” When the bill, which resulted in the decree complained' of, was filed, in 1876, Slaten, Cadwallader and Curtis were the three directors of the district. In April, 1879, Thomas J. Terry, one of the complainants in the suit against the district, and, indeed, the leading spirit in the prosecution of the case, was elected a director in the district. -A short time after his election, J. C. Noble was also elected a director. In, April,- 1880, Lelim Kuhl was elected a director in the place of Slaten,. who was acting when the bill was first filed. Thus the three members of the board were changed. On the 11th day of September, 1S79, director Terry presented a resolution to the board, which was adopted, and read as follows : “That- the bonds heretofore issued by a former board of directors, for the sum of $10,000, be hereby declared void, and the Messrs. Warren & Pogue be employed as the attorneys of this district in all suits, and all attorneys heretofore employed are hereby discharged, and that the said firm of Warren & Pogue be instructed to institute proceedings to obtain a reconveyance of the school property for which said bonds were given. ” It will be observed that Warren & Pogue were the solicitors of Terry et al., who brought the bill against the district. After the adoption of the above resolution the district was without attorneys, and it may also be said that the complainants in the bill had assumed the position of prosecutors and defenders of the subject matter of the litigation in which the district was interested. After the adoption of the resolution, and on the 19th day of May, 1881, the cause came on for a hearing, when a default and a decree pro confesso were taken against the school directors of district No. 8, and subsequently a final decree was rendered, as heretofore stated.

Although under the resolution adopted by the board, which discharged the attorneys who had previously acted for the board, and employed Warren & Pogue, the solicitors of the complainants, as the future attorneys of the board, it might be inferred that Warren & Pogue acted in a double capacity. Yet such is not the ease. The evidence shows that they refused to act for the board in the then pending case, and so far as they are concerned, no unprofessional conduct can be attributed to them. But the samé can not be said in regard to the conduct of the directors of the district, or at least a majority of them. When they were elected directors of the district they assumed a public trust. They had the charge of the funds and property of the district, in trust for the people of the district, and as such they are to be held to a strict account. They had no right to allow private interest to conflict, or in any manner interfere, with their public duties. When these directors came into office they found a suit pending against the district to take from it valuable property, which had been purchased and paid for in the bonds of the district. Now, what was the plain duty of these directors,—men elected by the people to protect and preserve their property ? Were they authorized to discharge attorneys who had been employed to defend the district, and allow a default to be taken against the district? Were they authorized to allow a suit in their own behalf to be prosecuted to a final decree against the district, without interposing any defence whatever ? This would not be right or just. It was a fraud upon the rights of the people of the district for the directors to allow a decree to be entered against the district without interposing any defence, and no one of the board of directors should be allowed to profit by a fraudulent act. When they assumed the position of directors, they had no right to allow private interest to conflict with public duty. Equity and good faith required them to defend and protect the property of the district to the best of their skill and ability, regardless of any and all private interest which they might have, and when they failed to do this, they proved recreant to their trust, and their acts can not be upheld in a court of equity. The people of the district could only act through their board of directors. They were, therefore, in this instance, powerless, and it might, in many cases, defeat the ends of justice to hold that the people of a district should be bound and concluded by a decree where a board of directors have disregarded their .trust, and allowed a judgment to be entered against the district, as was done here, interposing no defence whatever. We think the only conclusion to be reached, from all the evidence, is, that the president of the board of directors, in his own interest, and entirely ignoring and disregarding the interest of the district, allowed the decree to be rendered, and we think it is a case where a court of equity may properly interpose and set aside the decree, and allow the district to defend.

It is true, as suggested by counsel, that a defendant who has been negligent, and allowed a judgment to be rendered against him through his laches, can not come into court and obtain relief ds against his own negligent acts. But the principle which precludes a negligent party from obtaining relief, has no application to a case of this character.' Here, officers intrusted with the rights of the public have disregarded their trust, and, as is claimed, suffered the district to be defeated in their own private interest.

We think the decree of the circuit court was correct. The decision of the Appellate Court will therefore be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    John F. Hoge v. The People of the State of Illinois.

      Filed at Ottawa May 15, 1886.

    1. Cbiminal law—possession of stolen property, as evidence of guilt-explanation of such possession—degree of proof required. It is error for the court, on trial of one for larceny, to instruct the jury that the possession of the stolen property soon after the theft is sufficient to convict, unless such possession is satisfactorily explained, and. that an alibi must be clearly and satisfactorily proved before that defence can avail.
    2. The burden of proof is on the People to establish a defendant’s guilt of the crime charged; and when the defendant charged with larceny introduces evidence to explain his recent possession of the stolen property, and tending to establish an alibi, if the jury, after considering the evidence introduced by him as to either or both such questions, in connection with the other evidence, have a reasonable doubt of his guilt, they should acquit.
    3. Same — former decision. The ruling of this court in the case of Waters v. The People, 104 111. 544, is not at variance with the rule announced in this case. There the defendant was found in the possession of the property almost immediately after it was stolen, and no evidence was offered to explain his possession, so that the question of the extent to which he was required to make explanation of his possession to exonerate himself, was not before the court, and the instruction in that case, though irrelevant, could not possibly have been misleading.
    4. Same—larceny—horse stealing—finding the value. It is not essential to a conviction for the larceny of horses, that the jury in their verdict shall find their value. The distinction between grand and petit larceny as to the offence of horse stealing, is abolished in this State.
    5. Witnesses—competency of grand juror to prove what a witness tes-' tifled to before grand jury. It is competent to prove by members of a grand jury that a witness testified differently before that body from his testimony on the trial, where the proper foundation is first laid.
    6. Same—credibility—giving false testimony. An instruction to the jury, that if they believe, from the evidence, that a witness has testified falsely as to any material fact in the case, they may, and it is their duty to, disregard his entire evidence, except so far as he is corroborated by other credible evidence, or by facts and circumstances proved on the trial, is erroneous, in omitting the very material qualification that the false testimony shall have been willful, and in directing the jury to disregard this testimony of the witness. The jury may, but are not bound to, disregard the evidence.

      7. Same—impeachment—of the mode. To show an alibi in a criminal case, the defendant called- as a witness a former clerk of a hotel, and proved by him that he saw the defendant at the hotel on the morning after the larceny, between four and five o’clock. The People then introduced evidence to show that the witness was discharged as hotel clerk, a day or so before the time spoken of, for drunkenness. This was not done to contradict’the witness by showing his absence, it being conceded he was at the hotel at that time, but it was the evident purpose thereby to impeach him: Held, that the court erred in admitting the evidence, as the witness could not be impeached in this way. If his reputation for truth and veracity was 'bad, that fact should have been proved. Why his employer discharged him was immaterial.
    8. - In order to impeach a witness by showing he testified differently on his examination before the grand jury, his attention must first be called to his testimony before that tribunal, and he be allowed to state whether he did not testify as claimed. If he admits he did, he may explain why his present testimony is different; but if he denies that he testified differently, he may be contradicted.
    9. Instructions—directing attention to only a part of the evidence. An instruction which selects a part of the evidence on a particular question and calls the attention of the jury to it, and omits other evidence that is entitled to be considered, on the same question, is calculated to mislead, and is erroneous.
    10. Same—curing errors by other instructions. In order that objectionable instructions maybe cured by others, the latter must either directly refer to and explain and qualify the former, or be supplementary to the former, and supply what was omitted in them; but when the latter are supplementary to the former instructions, the former must be correct as far as they go, and be defective only in not going further, and including what is supplied by the supplementary ones.
    11. Where one. instruction declares that the- law is one thing with regard to a particular matter or state of circumstances, and another one states that the law is another and materially different thing with regard to precisely the same matter or state of circumstances, the instructions are repugnant, and no repetition of the correct ones can cure the error of those that are incorrect.
    12. Error—whether ground for reversing. Where this court can see, from the record, that the evidence is so overwhelmingly against a defendant tried for a criminal offence, that had the jury been instructed correctly they must still have found against him, it will not reverse a judgment of conviction for mere error of instruction. But where the evidence leaves the question of guilt doubtful, or is not clear and satisfactory, the defendant is entitled to have it passed upon by a jury instructed with substantial accuracy as to the law applicable to it.
    Writ of Error to the Circuit Court of Grundy county; the Hon. Dorrahce Dibell, Judge, jiresiding.

      Mr. E. M. Wing, for the plaintiff in error:
    The second instruction for- the People does not state the law of the case correctly. Smith v. The People, 103 Ill. 85; Comfort v. The People, 54 id. 404; Sahlinger v. The People, 102 id. 41; Conhwright v. The People, 35 id. 204; Jones v. The People, 12 id. 259.
    Proof of recent possession of stolen property simply raises a presumption of guilt that can be destroyed by an explanation. It does not require an affirmative defence to be made by the defendant to relieve him from the effect of such possession. If the attending circumstances, or other evidence explanatory, so far overcome the presumption thus raised as to create a reasonable doubt of the guilt of the accused, he should be acquitted. Smith v. The People, supra; Mullins v. The People, 111 Ill. 46.
    The instruction is faulty and erroneous in requiring a degree of proof on the part of the defendant not required in a civil case. Herrick v. Gray, 83 Ill. 89; Railroad Co. v. McMath, 4 Bradw. 359; Smith v. State, 2 Am. Cr. Rep. 375.
    Evidence in explanation of such possession may fall short of a satisfactory explanation, and yet be sufficient to acquit. If It creates a reasonable doubt, it practically rebuts the presumption of guilt. Clackner v. State, 33 Ind. 412; Way v. State, 35 id. 409.
    It is no answer to the objection to say there were other instructions for the People given which lay down the rule more áccurately. It has been held repeatedly that an erroneous instruction is not cured by another which correctly states the rule, because it leaves the jury at liberty to select and act upon either instruction, as might best accord with their views. Railroad Co. v. Payne, 49 Ill. 499; Railroad Co. v. Harwood, 80 id. 88; Railroad Co. v. Lee, 60 id. 502; Railroad Co. v. Maffitt, 67 id. 431; Deman v. Bloomer, 11 id. 177; Railroad Co. v. Dunn, 61 id. 386; Railroad Co. v. Dimick, 96 id. 47; Railroad Co. v. Britz, 72 id. 257; Railroad Co. v.
      Murray, 62 id. 326; Railroad Go. v. Van Ratten, 64 id. 510; Railway Co. v. Henks, 91 id. 408; Quinn v. Donovan, 85 id. 194.
    It was error to select out the defendant’s witnesses by name, and tell the jury that if they believed, from the evidence, that they had testified willfully false as to any material matters, they might disregard this evidence, except so far as corroborated. The court should not cast its influence against any particular witness. Rafferty v. The People, 72 Ill. 46.
    It is sufficient if the evidence on the question of an alibi, taken in connection with all the other evidence in the case, raises a reasonable doubt of guilt. Mullins v. The People, 110 Ill. 46; Wharton on Crim. Evidence, (8th ed.) sec. 333.
    The court erred in refusing to allow the defendant to prove that the People’s witnesses had testified differently before the grand jury to what they did on the trial. Granger v. Warrington, 3 Gilm. 300; Bressler v. The People, post, 422.
    Messrs. Cook & Lawrence, also for the plaintiff in error:
    It was not necessary that the defendant should have been able to explain satisfactorily the manner in which he acquired possession of the horses, under the circumstances of this ease, to raise a reasonable doubt of his guilt, and entitle him to an acquittal. The instruction on this part of the case took from the defendant a defence the law gave him, and was clearly erroneous. Smith v. The People, 103 Ill. 82; Sahlinger v. The People, 102 id. 41; Conkwright v. The People, 35 id. 204; 2 Starkie on Evidence, 450; The People v. Jones, 12 Ill. 259; The People v. Mooney, 111 id. 388; Stratton v. Railway Co. 95 id. 32.
    The testimony of Hynds as to the cause of the discharge of Hanna was improperly admitted.
    The court erred in telling the jury that if they believed so and so, from the evidence, it was their duty to disregard the testimony of certain witnesses. Otmer v. The People, 76 Ill. 149; Ruddock v. Belden, 7 Bradw. 530; Swan v. The People, 98 Ill. 612; Express Co. v. Hutchins, 58 id. 44; Pope v. Dod-son, 58 id. 360; Gulliher v. The People, 83 id. 146. The verdict fails to find the value of the property, which was necessary. Sawyer v. The People, 3 Gilm. 53; Collins v. The People, 39 Ill. 393; Hyland v. The People, 3 Scam. 393.
    Mr. Orrin N. Carter, State’s Attorney, Mr. George Hunt, Attorney General, and Mr. J. L. O’Donnell, for the People:
    The burden of proving an alibi devolves upon the accused, and it must be clearly and satisfactorily established where the evidence otherwise makes out a clear case against him. Garrity v. The People, 107 Ill. 167; 1 Wharton on Crim. Law, 708-744; Miller v. The People, 39 Ill. 465; Creed v. The People, 81 id. 565; Mullins v. The People, 110 id. 43. If the instructions, taken as a whole, state the law substantially correct, or substantial justice has been done, a reversal will not be had for mere errors in some of the instructions. Leach v. The People, 53 Ill. 311; Kennedy v. The People, 40 id. 488; Peri v. The People, 65 id. 17; Ritzman v. The People, 110 id. 363; Bressler v. The People, post, 433. The instructions as to the presumption arising from the possession of recently stolen property,, was taken verbatim from one in the ease of Waters v. The People, 104 Ill. 544, which this court held good. See, also, Creed v. The People, 81 Ill. 565.
    It is not always objectionable in an instruction to call the attention of the jury to particular facts. Logg v. The People, 93 Ill. 598; Hanrahan v. The People, 91 id. 143.
    Evidence that a witness had made 'contradictory statements out of court, or at another time and place, can not be admitted unless the attention of the witness is first called to such statements. Regnier v. Cabot, 3 Gilm. 34; Miner v. Phillips, 43 Ill. 133; Winslow v. Newlan, 45 id. 145; Richardson v. Kelly, 85 id. 491; 1 Greenleaf on Evidence, sees. 466, 467.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This writ of error brings before us for review the record of the conviction of John F. Hoge, at the November special term, A. D. 1885, of the Grundy circuit court, of the crime of larceny. It was proved on the trial, and not controverted, that two horses, owned by Lars Thorsen, were stolen on the night of the 31st day of March, A. D. 1885, from his barn, in Grundy county, which is two and a half miles west from Morris, in that county, and about twenty-five miles west from Joliet, in Will county; that they were found by Eli Thorsen, a son of Lars, about noon the next day, (April 1,) in a stable in Joliet, in the possession of Morris Tausig, a horse buyer from Chicago, and recovered; that about nine o’clock on that morning the horses were sold by the defendant to Tausig, in a stable in Joliet, for $135; that the defendant is a young man, at that time a little past twenty-two years of age, residing with his father in Grundy county, in the same general direction from Morris, but two miles and a half or three miles farther from Morris than Thorsen; that he left his father’s house on horseback, near four o’clock in the afternoon of March 31, going in the direction of Morris, and professing to be going to Chicago to buy some groceries .for the family; that defendant, some time during that evening, was in Morris, put his horse up at a livery stable, and he was seen at several different places in the town during the evening, and that he left a restaurant about ten o’clock, saying that he was going to the Carson House, a hotel near the depot. Whether he, in fact* went to the Carson House, is in contest. He swears that he went there, found no one up but a negro porter, asked and obtained a bed from him, was waked- up by him for the train passing Morris for Chicago at 3 :35 A. M., April 1, and that he paid the porter for the bed, but omitted to register his name. The porter denied all this,' and the defendant then proved that the porter had admitted to the witness that he stayed at the house on that night, and also introduced evidence tending to impeach the porter. The defendant testified, that intending to go to Chicago, he got on the train (3 :35 A. M.) without procuring a ticket; that the conductor passed him without demanding his fare, and that therefore he paid none; that on approaching Joliet he remembered that the regular monthly horse fair was held there that day, and he concluded to stop and attend the fair, and resume his trip to Chicago on a later train. The brakemen testify that they saw no one get on that train at Morris, and the conductor testifies that he was informed by the ticket agent at Morris that he had sold no ticket for that train; that he passed through the train after leaving Morris, and failed to discover the defendant, though he admitted that any conductor was liable at some times to overlook a passenger, and it may be that the fact that he was informed by the ticket agent that he had sold no ticket, made him less careful- and observing than he otherwise would have been. The defendant testified that after getting off the train at Joliet he went to the Schurts Hotel, arriving there between four and five o’clock in the morning, (April 1st,) and he introduced evidence to sustain himself in this respect, and the State introduced evidence contradicting him. The defendant further testified that he remained in this hotel until it was light, or the sun was up, and he then went to the National Hotel to see if any one from Morris was there; that after making inquiry in this respect, he observed from the hotel door these horses, some ten or twelve rods distant, standing in the street. A man was sitting on one, and two men were standing by; that he walked up to where the horses were standing, and inquired whether they were for sale; that the man sitting on the horse replied that they were, and that after examining the horses and going through with some bantering, he purchased the horses for $125, which he paid at the time. The defendant further testified that he did not steal the horses, nor have any hand or part in stealing them; that although he had seen these horses before, he did not, at the time he purchased them, recognize them; that the man from whom he purchased, and the men standing by, were strangers whom he had never seen before ; that after purchasing he started off, leading them, when the man from whom he purchased advised him that he had better ride one and lead the other; that he then went with the horses to the stable of a person, whose name is" given, who had kept horses for him before, but his stable being full, he referred the defendant to another stable, where he took the horses, and where they remained until after he sold them to Tausig; that he then went back to the Sehurts Hotel and got his breakfast, and afterwards he returned to the stable, and about nine o’clock sold the horses to Tausig. Uncontradicted evidence proves that the defendant had for several years been doing business for himself, buying and selling stock of different kinds, and that on one occasion he had dealt in horses at the Joliet horse fair; that he was, a day or two before this occurrence, in the possession of several hundred dollars in money, and it seems to be conceded that his father is a man of some wealth. The defendant, as was his father before him, was born and raised, and had lived all his life, in Grundy county, and some thirty witnesses, including citizens of the highest official and business standing, testified to 'having known him throughout his life, and were acquainted with his reputation among his neighbors for honesty, and that it was good. The defendant made no effort to conceal the horses at Joliet, and when Tausig required his name, and that he be identified, he gave his name and his residence correctly, and went with him upon the street and found a man from Grundy county whom he knew, and who identified him to the satisfaction of Tausig. He told Tausig the same story, in regard to how he came by the horses, to which he testified on the trial.

A witness on behalf of the People testified that he knew the defendant; that witness left the Bock Island depot, in Joliet, where he was learning telegraphy, about six o’clock in the morning of April 1, to go to his boarding house, west of the' river bridge; that he met the defendant west of the bridge, about a square from the National Hotel; that he had two horses,—was riding one and leading the other. The National Hotel, as we understand the evidence, is farther west than the bridge, and it was, as before stated, in front of it that defendant testified that he bought the horses.

Three witnesses testified, on behalf of defendant, that they each, at a different point, saw this team early in the morning of the 1st of April still farther west than the National Hotel, passing from the west,—the direction of Morris,—eastwardly, and that it was then in the possession of a man riding one and leading the other, who they say positively was not the defendant, and who did not in general appearance resemble him, having on differently colored and quality of clothing, and having differently colored hair, etc., and being much larger in size. If these witnesses are truthful, (and no attempt is made to impeach them other than by the contradictory facts testified to by other witnesses,) some man other than the defendant was in the possession of these horses as they were entering Joliet from the west, and there is no evidence tending to connect the defendant with that man, except the evidence given by the defendant, which is, that he was a bona fide purchaser from him. It may also be mentioned, as entitled to some consideration, that this fair had been held for some years on the first Wednesday of each month; that it drew large crowds, made up chiefly of buyers and sellers and those seeking information in such matters; that persons in Grundy county were in the habit of attending the fair; that on this occasion the crowd in attendance was large, and that some persons bought at sales at the fair from strangers, without requiring guaranty or identification of the sellers.

There are- other circumstances in evidence, of a criminating character, relied upon by the People, and perhaps.there are some exculpatory circumstances relied upon by the defendant, which we have not deemed it necessary to notice; but this is sufficient to fairly present the questions of law arising upon the record.

The court, at the instance of the People, instructed the jury, in the second and twenty-second instructions, as follows:

“2. The court instructs the jury, that recent possession of stolen property soon after the theft is prima facie evidence of guilt, and sufficient upon which to convict, unless such recent possession is satisfactorily explained.
“22. The law is, that the burden of proving an alibi devolves upon the accused, and it must be clearly and satisfactorily established before it can avail, where the evidence otherwise makes a clear case against the accused.”

Both of these are wrong, and directly in the teeth of previous rulings of this court. To require the defendant to “satisfactorily” explain his recent possession of the stolen property, and to “satisfactorily” establish an alibi, before it can avail, is imposing a burden on him but little short of convincing the jury beyond a reasonable doubt, (Herrick v. Gary, S3 Ill. 89,) whereas the burden is upon the People to establish his guilt; and if, after considering the evidence introduced by him as to either or both of these questions, in connection with all the other evidence in the case, and giving due consideration to the entire evidence, the jury shall have a reasonable doubt of the defendant’s guilt, he can not be convicted. Hopps v. The People, 31 Ill. 385; Miller v. The People, 39 id. 465; Mullins v. The People, 110 id. 42. In Conkwright v. The People, 35 Ill. 204, a similar but less objectionable instruction, in its phraseology, than either of these, was held erroneous, because its tendency was to induce the jury to believe that the burden was on the defendant to establish his innocence, and that a reasonable doubt of his guilt would not entitle him to an acquittal.

Counsel for the People contend, however, that in Waters v. The People, 104 Ill. 544, an instruction in the precise language of instruction No. 2, here, was sustained. This is a misapprehension. In that case the defendant was seen in the possession of the property almost immediately after it was stolen, and he offered no evidence whatever to rebut the presumption of his guilt. The question, therefore, of the extent to which he was required to make explanation of his possession to exonerate him'self, was not before the court. There being no evidence upon that subject, the instruction was irrelevant, but by no possibility could it mislead. The opinion therefore did not discuss it. >

The eleventh and twelfth instructions, given at the instance of the People, are as follows:

“11. You are the sole judge of the credibility of the witnesses in this case, and the credit to be given to each is to be determined by you from considering the probability or improbability of their statements; their means or want of means of knowledge of the facts to which they testify; their manner upon the stand; their contradictory statements, if any; whether or not they were contradicted by other witnesses, or by facts and circumstances appearing in evidence. And if you believe, from the evidence, that the witness Hennessy has testified falsely as to any material fact in this case, then you may, and it is your duty to, disregard his entire evidence, except so far as he is corroborated by other credible evidence, or by facts and circumstances proved on the trial.
“12. If you believe, from the evidence, that the witness J. B. Hanna has received or agreed to receive any money in this case, then you should consider that fact in determining what credit, if any, you should give to his testimony. And if you believe, 'from the evidence, that J. B. Hanna has testified willfully and corruptly false as.to any material fact, then you will disregard his entire testimony, excepting so far as he is corroborated by other credible evidence, or by facts arid circumstances proved on the trial. ”

These instructions are both erroneous, and have frequently been condemned by this court. The eleventh omits the very material qualification that the false testimony shall have been willful, and both assert that the jury must disregard the testimony. The jury may, but they are not bound to, disregard the evidence. United States Express Co. v. Hutchins, 5S Ill. 44; Pope et al. v. Dodson, id. 360; Otiner v. The People, 76 id. 149; Gulliher v. The People, 82 id. 146; Swan v. The People, 98 id. 612.

The seventeenth instruction, given at the instance of the People, is also objectionable because it omits the word “willful,” before the words “false statement. ”

The seventh instruction, given at the instance of the People, reads:

“7. If you believe, from the evidence, beyond a reasonable doubt, that the horses in question were stolen from the owner, as charged in the indictment, and were seen in the possession of defendant at the city of Joliet,, and that within a short time after the defendant had placed the team in a barn ■ in the city of Joliet, one Eli Thorsen, a son of the complaining witness; met the defendant and told him of the fact that such a team had been stolen, and that the defendant then and there admitted that he knew said "team, and failed to inform' said Eli Thorsen of his knowledge concerning the whereabouts of such team at that time, but concealed the same from him, then such fact is proper for the consideration of the jury, in connection with all the evidence in the case, upon the question as to whether or not defendant had-guilty knowledge of the larceny of said team.”

' This instruction is calculated to mislead, by selecting a part of the evidence on a particular question and calling the attention of the jury to it, and omitting other evidence that is entitled to be considered, on the same question. The People proved that the defendant gave as a reason for not informing Eli Thorsen, at the time here mentioned, that he had bought and sold his father’s horses, that he did not then have them in mind, and did not think that they could have been there. No one testified that the defendant admitted that at or before this interview with Eli Thorsen he knew that these were Thorsen’s horses. It may be that the defendant’s explanation was not satisfactory, still he was entitled to have it considered for what it Avas Avorth, and if it Avas advisable to call the jury’s attention, in an instruction, to this branch" of the evidence, it should have been called to all that affected the question to Avhicb it related. Cushman v. Cogswell, 86 Ill. 62; Moore v. Wright, 90 id. 470; Illinois Linen Co. v. Hough, 91 id. 63.

It is contended, however, that eA-en conceding these instructions to be erroneous, they furnish no ground to reversé the judgment below, because, in the first place, the defendant Avas so clearly proved to be guilty that they could do no harm; and in the second place, the errors in them Avere corrected by other instructions in which the laAV Avas fully and accurately stated. It is our practice, Avliere we can see, from the record, that the evidence Avas so ovenvlielmingly against the defendant that had the jury been instructed correctly they must still, necessarily, have found as they did, to decline to reverse for mere error of instruction. But Avhere the evidence "upon the question of guilt is not such that all honest minds of ordinary intelligence must necessarily come to the same conclusion after giving it proper consideration, the defendant is entitled to have it passed upon by a jury instructed with substantial accuracy as to the Law applicable to it.

We can not say that the evidence in this record is so overwhelmingly against the defendant that the verdict must necessarily have been as it is had these erroneous instructions not been given. We think, the evidence all considered, a fair question Avas presented Avithin the peculiar province of the jury.

In case of error in rulings upon irrelevant questions having no tendency to affect the real questions in issue, it has often been held there is no ground for reversal; but this principle is not claimed to apply to these instructions. Where instructions which are objectionable are cured by other instructions unobjectionable', the latter must either directly refer to and explain and qualify the former, or be supplementary to the former and supply what was omitted from the former; but obviously, where the latter are supplementary to the former instructions, the former must be correct as far as they go, and be defective only in not going farther, and including what is supplied by the supplementary instructions. But where one instruction says that the law is one thing with regard to a particular matter or state of' circumstances, and another instruction says that the law is another and materially different thing with regard to precisely the.same matter or state of circumstances, the instructions are repugnant, and nd repetition of the correct instructions can cure the error of those that are incorrect, for the jury, assuming, as is their duty, that they are all correct, may as readily follow those that are incorrect as those that are' correct.

The defendant proved by J. B. Hanna that he (the witness) was at the Schurts Hotel, in Joliet, on the night of the 31st of March and morning of April 1, 1885; that the train arrived from the west at 4: 20 A. M., and that he was up and saw the defendant in the hotel between four and five o’clock on the morning of the 1st of April. This, if true, corroborated defendant in saying that he came upon the train and was at the hotel at that time, and also by tending to show that some one else must have brought the .horses to Joliet. The People introduced evidence, over the objection of the defendant, to show that Hanna was discharged as hotel clerk a day or so before, by the proprietor of the hotel, on account of drunkenness. This was not done to contradict Hanna by proving his absence, for although it was contested whether Hanna saw the defendant in the hotel at the hour he testified that he did, or that Hanna was, himself, up at that hour, still there was no question but that Hanna was in the hotel, in his room or elsewhere, at that time, so the "only purpose of the evidence must have been to impeach the witness. It is quite clear that a witness can not be thus impeached. If his reputation for truth and veracity was bad, that fact should have been proved. Why his employer had discharged him was immaterial.

Barry and Stewart testified, on behalf of the State, contradicting the defendant and Hanna as to the hour in the morning at which the defendant was in the Schurts Hotel. The defendant offered to contradict the witnesses by the reporter’s notes and by testimony of members of the grand jury, proving that they had testified differently before the grand jury, The court excluded the evidence. In this there was no error. No basis was laid, for the introduction of such testimony. It was competent to prove by members of the grand jury that the witnesses had testified differently before the grand jury. (Granger v. Warrington, 3 Gilm. 299; Bressler v. The People, post, 422.) But the attention of the witnesses should have been first called to the testimony they gave before the grand jury, and they should then have been allowed to state whether they did testify as claimed. If they had admitted that they did, they would have been then entitled to give any explanation they could why their present testimony was different. If they had denied -that they had so testified, the defendant would have been entitled to contradict them. Regnier v. Cabot, 2 Gilm. 34; Northwestern Ry. Co. v. Hack, 66 Ill. 238.

An objection is urged that the jury did not in their verdict find the value of the horses. We do not think this objection tenable. By section 224 of the Criminal Code, (1 Starr & Curtiss, page 803,) “whoever feloniously steals or takes any horse, * * * shall be imprisoned in the penitentiary not less than three nor more than twenty years.” This section is entirely independent of sections 215 and 216 of the same-code, and was clearly, in our opinion, intended to make horse stealing a more serious crime than larceny in general. The same reason which impelled the legislature to fix a. greater maximum and minimum punishment in all cases, evidently induced them to abolish the distinction between grand and petit larceny as to this offence.

Some other objections have been discussed in the arguments before us, but we deem them untenable.

For the errors indicated, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.-


text:
    The People ex rel. Charles P. Swigert, Auditor, v. William G. Anderson.

      Filed at Springfield May 14, 1886.

    1. Taxation—exemption. It may be regarded as a general rule that all-property is liable to taxation for State, county and municipal purposes, except 'such as the General Assembly has seen proper by general law to exempt. Section 3, article 9, of the State constitution, does not exempt any property from taxation. It only authorizes the legislature, by a general law, to exempt certain property.
    2. Same—exemption of church property. Church property, to be exempt, from taxation,must be actually and exclusively used for public worship, and' the land, of a reasonable size for the church building, must be owned by the congregation. If the congregation is not organized it can not own the property, and without such ownership the property is not made exempt.
    3. Same—proceeding to determine the question of exemption. In a proceeding by the Auditor of Public Accounts, in the Supreme Court, to procure a reversal of an order of the board of supervisors declaring certain real estate exempt from taxation, the question of the regularity of the assessment by the local assessor is not involved, the only question being whether the.property is subject to taxation.

      This is an original proceeding instituted in this court by the Auditor, to procure the reversal and setting aside of an order of the board of supervisors of McLean county, holding certain property as exempt from taxation. The material facts are stated in the opinion.
    Mr. George Hunt, Attorney General, for the People:
    Primarily, all property in the State is liable to taxation. All laws exempting property from taxation, must be strictly construed. People v. Cemetery Co. 86 Ill. 336.
    The State constitution (art. 9, see. 3,) does not exempt any property from taxation. It merely authorizes the legislature to make such exemption, and that body is the judge of how and how far it will exercise the power.
    Section 2 of the Revenue law fails to exempt this property from taxation, there being one requisite not met,—that is, the ownership of the property by a religious congregation. The property was assessed to the Christian church, but the name used is immaterial. It is only the liability of the property to taxation that can bé submitted to this court in this proceeding. Rev. Stat. chap. 120, sec. 97, par. 3.
    Messrs. Tipton &.Beaver, for the appellee:
    The assessment not having been made by the assessor, is void. Railroad Co. v. Dennison, 98 Ill. 355.
    The rule is, that property can only be assessed by some competent person or persons designated by law to perform that duty, and any attempted assessment by any one else is null and void. Const. 1870, art. 9, sec. 1; Bureau County v. Railroad Co. 44 Ill. 229; Cooley on Taxation, 184.
    The assessor having failed or refused to assess the property on the ground it was exempt, the town board had no power to assess it. Mix v. People, 86 Ill. 312.
    This property not having been assessed by the assessor of this town, who is the officer provided by law for fixing the valuation of this property for taxation, the action of the town board in such attempted assessment is a nullity.' Lyman v. People, 2 Bradw. 299; Howe v. People, 86 Ill. 238.
    The provision of the statute is, that the assessor shall determine the value of each tract of land, and set down in the books furnished, the value of each tract of land, for the benefit of the tax-payers, and a compliance therewith is essential to the validity of the tax. Life Ins. Co. v. Pollock, 75 Ill. 398; Spencer v. People, 68 id. 612.
    William Gr. Anderson, the trustee, if not the congregation who were in actual possession of the same, should have had notice in writing of the action of the town board. Darling v. Gum, 50 Ill. 111; Copham v. Postlewaite, 43 id. 428; Slat v. Drake, 33 N. J. 194; Butler v. Supervisors, 26 Mich. 22; Patten v. Grau, 13 Cal. 325; Cooley on Taxation, 265, et seq.

   Mr. Justice Craig

delivered the opinion of the Court:

At the July term of the board of supervisors of McLean county, begun and held in Bloomington on the 13th day of July, 1885, W. Gr. Anderson presented a petition to the board to vacate and set aside the assessment on lots 6, 7 and 8, in block 3, in the village of Colfax, which had been assessed for the taxes of 1885, on the ground that the property was exempt from taxation, being church property. The board, under section 97 of the Revenue law, decided that the property was exempt from taxation, and entered an order vacating the assessment. The county clerk, as provided .by clause 3 of section 97,-made out and transmitted to the Auditor a complete statement of the facts in the case, for his approval. The Auditor, upon an examination of the facts, did not approve the action of the board, and so notified the county clerk. Upon being informed of the action of the Auditor, the clerk served the proper notice upon Anderson, and the Auditor, under the provisions of the statute, has presented to this court a statement of the facts for our decision.

Under the statute, which provides for a proceeding of this character, the question as to the regularity of the assessment by the local assessor does not arise. The only question for determination is, whether the property was liable to be assessed for taxation, and that question we will consider.

It is claimed in the argument that the lots in question are church property, and,- as such, are exempt from taxation, under the constitution and laws of the State. From the statement of facts it appears that the three lots werg, on the first, day of May,' 18S5, owned by William G. Anderson; that he had erected a meeting house on two of the lots, which was used exclusively for religious purposes; that Sabbath school was held in the church every Sunday, and preaching was had two Sundays in each month. It also appears that the “congregation worshiping at the church, and the name of the church, is the Christian church, ” but the congregation was not incorporated or in any manner organized. It also appears that the building had been dedicated as churches are usually dedicated by religious denominations. Under these facts, were the lots, with the building erected thereon, exempt from taxation.

The solution of this question must depend upon the construction to be placed upon the act of the legislature exempting certain property from taxation. It may be regarded as a general rule, that all property is liable to taxation for the purpose of raising revenue for State, county and municipal purposes, except such property as the legislature has seen proper, by the enactment of a general law, to exempt. - Section 3, article 9, of the constitution of the State, makes provision for the enactment of a law exempting certain property from the burdens of taxation, in the following language: “The property of the State, counties, and other municipal corporations, both real and personal, and such other property ■as shall be used exclusively for * * * school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general-law.” This provision of the constitution, as is apparent from its language, does not exempt any property, but only provides that the legislature may, by general law, exempt certain property from taxation. Under this provision of the constitution the legislature, in section 2 of the Revenue law, proceeded to determine what property might be exempt from taxation; and as to church property, the section provides that all church property actually and exclusively used for public worship, when the land (to be of a reasonable size for the location of the church building) is owned by the congregation. Here the property was actually and exclusively used for public worship, and it was of a reasonable size for the church building. So far, the property falls clearly within the terms of the act. But the act contains the further requirement that the property, in order to be exempt, must be owned by the congregation. This property was not owned by the congregation, but the title rested in W. G. Anderson. The' congregation that assembled at this church for worship was not organized under the statute so as to own real estate, and had no power to purchase or own real estate; but if it had been an organized body, so long as Anderson owned the property it "was subject to taxation. The fact that the building on the lots had been dedicated as a church, has no bearing on the question. The title to . the property wras not changed by the dedication, but it remained in Anderson, as it did before. Anderson did no act which changed the ownership of the property, and at any time lie saw proper the congregation might have been excluded from the use of the property.

Under such circumstances, we could not hold that the property was exempt from taxation without disregarding the plain and obvious meaning of the legislature, which we have no right to do. If it had been desired to place the property in a position where it would not be subject to taxation, a religious society might have been organized under the. statute, and the property conveyed to it, or to some person in trust for such society. Had this been done, the action of the hoard might have been sustained, but as the title to the property remained in Anderson, it was liable to he taxed, and the action of the board was erroneous.

The decision of the board of supervisors of McLean county will be reversed, and the proceeding remanded.

Judgment reversed.


author: Mr. Justice Walkeb Mr. Justice Craig,

text:
    William Thornton et al. v. Philip Mehring.

      Filed at Mt. Vernon March 26, 1885.

      denied May Term, 1886.

    1. Leasehold—a chattel real—passes to administrator. A leasehold interest in land for a term of years is personal estate, and on the death of the owner passes to his executor or administrator, whose duty it is to sell and convert it into money for the payment of debts, or distribution; and the heir or distributee can not pursue the property into the hands of the purchaser from the executor or administrator. ^
    2. Administrator—duty as to chattel real. An administrator of an estate succeeds to the legal title to the personal property of the intestate, including leasehold interests or chattels real. He holds such title in trust for distribution among those entitled thereto under the law. Upon its sale the trust will attach to the proceeds, and the remedy of the heir is against the administrator, to compel a distribution, or for a devastavit.

    3. Same—deed of administrator construed as to interest conveyed. The ■administratrix of a deceased owner of a leasehold estate, after settling up the ■estate, by her deed sold and quitclaimed “all her right, title, claim and interest in and to” the tract,—“leasehold property, ”—the same concluding: And the said M. J. T. “do quitclaim all her right, title, claim and interest to the party of the second part, his heirs and assigns, to have and to hold said premises herein conveyed and described in the lease, as I might, could or would have done." She signed her individual name only to the deed, which was sealed: Feld, that she thereby passed all the title of the intestate to the grantee.

      Appeal from the Appellate Court for the Fourth District; —heard in that' court on appeal from the Circuit Court of St. Clair county; the Hon. Geo. W. Wall, Judge, presiding.
    Mr. Frank B. Bowman, for the appellants:
    The widow as well as the plaintiffs became vested with the-title of their distributive shares eo instanti upon the death of Joseph Thornton. That" the executor or administrator became the absolute owner of a decedent’s personal estate never was the law in this country. The right of a distributee attaches upon the death of the intestate. Perryman v. Greer, 39 Ala. 136; Bufford v. Holliman, 10 Tex. 571; Lewis v. Lyons, 13 Ill. 117.
    In the trial court the defence relied on the two following points: First, that there was no ouster, as required by section 26, chapter 45, of the Revised Statutes of 1874; and second, that plaintiffs are barred by the Statute of Limitations.
    As to ouster, see Harrison v. Taylor, 33 Mo. 22; Miller v. Meyers, 46 Cal. 538; Greer v. Tripp, 56 id. 212; Marcy v. Marcy, 6 Metc. 372; Noble v. McFarland, 51 Ill. 230; Freeman on Co-tenancy, sec? 222.
    Mr. Charles W. Thomas, for the appellee:
    A quitclaim deed is as effectual to convey land as any other. Brady v. Spurck, 27 Ill. 478.
    The deed nowhere mentions an undivided interest. It professes to convey all her title, and that was the whole interest.
    The leasehold interest in dispute is personal property, and as such went to the administrator. The personalty of an intestate does not go, as such, to his heirs, without some order of court vesting it in them. The title remains in the administrator until an order of distribution is made. Neubrecht v. Santmeyer, 50 Ill. 74.
   Mr. Justice Walkeb

delivered the opinion of the Court:

This was an action of ejectment, brought by appellants, in the St. Clair circuit court, against appellee, to recover the undivided two-thirds of fourteen acres, part of lot 475 of the first subdivision of Cahokia commons, in that county. The land in controversy is situated on the south end of the lot. The declaration contained two counts, to which the general issue was filed, and a trial was had before the court, a jury having been waived by consent of the parties. After hearing the evidence, the court found the issues for the defendant, and, after overruling a motion for a new trial, rendered judgment against plaintiffs in bar of the action, and for costs. They thereupon prosecuted error to the Appellate Court for the Fourth District. The judgment of the circuit court was there affirmed, and the record is brought to this court by appeal.

It appears from the evidence, that under the statute conferring the power, the supervisor of Cahokia commons platted a portion of the commons, and leased this lot to W. W. Singleton for eighty-nine years, from the 24th of December, 1851. Afterwards, on the 2d day of September, 1852, Singleton and wife conveyed the leasehold title to this lot to Joseph and John Thornton, as tenants in common, for the unexpired term. There were two houses on the lot, and each of the grantees entered and occupied these houses, separately, with their several families. Joseph died in April, 1857. He left a widow, Mary Jane, and three children, appellants in this case. John died in 1856, leavihg a widow and children. The widow of Joseph remained on the land, or rented it, until, she sold to defendant’s landlord, Altenbernd. Mary Jane, the widow of Joseph Thornton, obtained letters of administration on Ms estate, and returned an appraisement bill and inventory, but not of the undivided half of this lot. She sold the other property, paid the debts, and made a final settlement of the estate, which was approved by the probate court ■on the 13th of March, 1861. It nowhere appears that the .administratrix either sold or disposed of this leasehold property in the settlement of the estate, but it remained unadministered. The widow of Joseph, deceased, with the appellants in this case, on the 20th day of February, 1860, filed in the ■St. Clair circuit court a petition for a partition of the lot, making the widow and heirs of John Thornton, deceased, defendants. At the following September term the court decreed a partition of the lot/and appointed commissioners to execute the decree. They reported they had made partition, and assigned to the estate of Joseph Thornton fourteen acres on the south end of the lot, and to the estate of John Thornton the remaining twenty-three and one-half acres on the north ■end. The report was affirmed by a decree of the circuit court. -On the 17th day of September, 1862, Mary Jane Thornton, widow of Joseph Thornton, deceased, sold and quitclaimed the fourteen acres on the south end of lot 47, to Christian Altenbernd, the landlord of appellee. She, in the granting part of the deed, says she sells and quitclaims all her right, title, claim and interest in the part of the lot as described, to have and to hold by the party of the second part, his heirs and assigns, as she might, or could, or would have done.

Appellants insist that upon the death of Joseph Thornton the leasehold title descended to the widow and heirs,—one-third to the widow, and two-thirds to his heirs. It is insisted that this estate thus vested in them in these proportions ■eo instanti on the death of Joseph Thornton, under the provisions of the Statute of Descents, subject to the debts against the estate,—that not having been sold by the administratrix to pay debts, the title still remains in the heirs, and the sale by the widow only passed her title to one undivided third of the lot assigned to the estate on the partition. It is urged that it was error to hold the administratrix held title to more than one-third of the premises, or that she had power to and did sell more than one undivided third by her conveyance.

Blackstone, in his Commentaries, (book 2, p. 143,) says: '“That an estate for life, even if it be per miter vie, is a freehold; but that an estate for a thousand years is only a •chattel, and reckoned a part of the personal estate. ” In 1 Williams on Executors, page 425, the rule is stated: “If a lease for years be made to a man and his heirs, it shall not go to his heirs, but his executors. ” In volume 2, page 609, he says: “It is a general rule of law and equity that an •executor or an administrator has an absolute power of disposal over the whole personal effects of his testator or in testate, and they can not be followed by creditors, much less by legatees, either general or specific, into the hands of the •alienee.” Wentworth on Executors, page 127, says: “The chattels not living are either in houses or lands, most usually, and 'that in three ways,—first, by lease for years, ” etc. In Toller on Executors, page 139, it is said: “The personal representative is entitled to the chattels real,—that, is such as concern or savor of the realty, as, terms for years of houses, or land, mortgages, ” etc.

From these authorities there would seem to be no doubt that the lease in this case was personalty, and the legal title and power of disposal passed to the administratrix on the grant of letters of administration. This doctrine is announced in numerous cases in this court. In the case of Lewis v. Lyons, 13 Ill. 117, it was held that the administrator held the legal title to the personal estate, but on a bill in equity the court held that money paid to the widow of intestate, under a decree of the court, where the widow had paid the claims allowed against the estate, and it owed nothing, a decree would not be made that the widow pay the money she had thus received, to the administrator, when all he could do, under the law, would be to pay it back to her. That would have been a wholly useless act. He held the legal title in trust for the distributees. She was a distributee, and so far as the trust related to her rights the trust had been executed, and she had received the money to which she was entitled, and there was nothing on which a court of equity could act. Again, in the case of Willenborg v. Murphy, 36 111. 344, it was said: “If the leasehold estate was personal property, of which we have no doubt, it went to him as administrator, and he had the control of it, and was bound to dispose of it for the interest of the creditors and distributees of the estate. ” Again, the case of Neubrecht v. Santmeyer, 50 111. 74, was a suit by the heirs of Arne, against the appellant, who had married the, widow of Arne, and they had been subsequently divorced. The widow of Arne, as administratrix of his estate, had sold a house in Cairo owned by deceased on the land of another person, for $285, of which she appropriated $85 to her own use,, and loaned the remaining $200 to her second husband, who promised to return the money to the children of her deceased husband, upon the youngest becoming twenty-one years of age. Before that time the wife was divorced from appellant. After the youngest became twenty-one, two of them sued appellant for their several shares. It was held that the house was a chattel, which could be sold and removed from the ground; that it was effects in her hands as administratrix, and did not belong to the children until an order of court for distribution had been obtained. The children had no right to claim it, either jointly or severally. It was also said the promise was to the administratrix, if one was made, and the remedy of the children would be against the mother, either by obtaining an order of court for distribution or by action against her as for a devastavit.

Thus, it is seen, such a lease is a chattel, and the legal title vests in the administrator, and it becomes his duty to sell and convert it into money for the payment of debts, or for distribution under the statute. From these cases it is seen that the distributees at law have no right to sue a person to whom the administrator has loaned money to which they have the right to distribution, nor to property not converted into money. We have been unable to find any case which holds that the distributees can compel the administrator to distribute property in kind, the proceeds or money arising from which they are entitled to’ a distributive share. The very purpose for which an administrator is appointed is to convert the personal property of the estate into money for the payment of debts or for distribution.

It then follows that Mrs. Thornton had the legal power to sell this lease as she did, and as its sale was not necessary for the payment of debts, the money she received for it became and was liable to distribution. Appellants must look to the administratrix for the portion to which they are entitled. As we have seen, they have no right to pursue the property into the hands of a purchaser from the administratrix, who had ample legal power to sell the lease and vest the title in the purchaser.

But it is said she only sold and quitclaimed all of her right, title, claim and interest in and to the land. What was her title, interest and claim? Manifestly the whole legal title to the lease which the law had invested in her. In the deed she says she sells, and she did sell and convey all of the interest, claim and title to the grantee. She did not limit her claim to her equitable rights, but the language is sufficiently comprehensive to embrace, and does embrace, all cff the title she then held in the lease, and that was the legal title. She held that title in trust for distribution to those entitled under the law, but it was her duty to convert the lease into money for distribution, which she did, and thereupon the trust ceased as to the lease, and attached to the money she received for it on the sale.

In the view of the case we have already presented, we deem it unnecessary to discuss the question of the bar of the Statute of Limitations.

We perceive no error in the record, and the judgment of the Appellate Court is affirmed.

' Judgment affirmed.

Mr. Justice Craig,

dissenting.

      Per Otjbiam: The foregoing opinion was prepared by the late Mr. Justice WaIiKEB, but in consequence of his ill-health at the term next succeeding, it was not read and considered by the other members of the court until the March term, 1885, which was after his death. At that term the opinion was read, and approved by a majority of the members of the court, and it was. ordered to be filed as the opinion of the court, which is accordingly done.


author: Per Curiam :

text:
    Mary Queenan et al. v. John M. Palmer et al.

      Filed at Springfield May 14, 1886.

    1. Practice in Supreme Court—when cause is prematurely taken. If a cause on docket is taken prematurely for decision before the appellees are required to join in error, there being nothing to show that they have all appeared and filed their briefs, and before an abstract of the record of the Appellate Court is filed as required, the order taking the case will be set aside and the cause continued.
    2. Appeal—during a term of this court. Where an appeal is taken from the Appellate Court to this court during a term of this court, the appellees are not bound to follow the case to that term.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Stuart, Edwards & Brown, Messrs. Palmers, Robinson & Shutt, Mr. J. A. Chestnut, and Mr. N. M. Broadwell, for the appellees.
   Per Curiam :

This ease is brought to this court by appeal ■ from the final order of the Appellate Court for the Third District, made on the 5th day of January, 1886, but the record was not filed in this court until the 15th day of January, 1886. No abstract of the record of the Appellate Court has been filed, as required by ..the rules of this court. The-case was therefore prematurely taken for decision. It was not ready to be taken. Nor is there any joinder in error or any briefs prepared for the Supreme Court by some of appellees, so that it can not be known whether appellees are all in court or not. The appeal was taken and allowed after-the January term, 1886, of the Supreme Court had commenced, and appellees were not hound by law to follow the-case to that term of court. There is nothing to show that-some of appellees have entered their appearance at the present-term of this court.

The order taking the case will be set aside and the case-continued.

Order set aside.


author: Mr. Chief Justice Mulkey

text:
      Ex parte John S. Smith.

      Filed at Mt. Vernon May 24, 1886.

    1. Habeas coimas—whether the writ will lie, to review a judgment at law. The writ of habeas corpus does not lie to review a judgment at law for an alleged error in the proceedings in a case, where the court had jurisdiction of the subject matter and of the person.
    2. Same—in case of imprisonment under an order in the nature of final process—as, a commitment until a fine is paid. A person imprisoned by-virtue of an order, in the nature of final process, to enforce a judgment at law for a specific sum of money, can be discharged under the Habeas Corpus act only for some one of the causes set forth in section 22 of that act.
    3. A petition for a writ of habeas corpus showed that the petitioner was. regularly brought before the grand jury as a witness; that he refused to answer certain questions propounded to him, and that the court thereupon fined him twenty-five dollars, and on refusal to pay the same, ordered him to-stand committed to the county jail until the fine and the costs should be paid: Held, that if the court erred in imposing the fine, the remedy was by appeal or writ of error, and not by the writ sought. If the order had been simply a committal until the petitioner answered the questions, a different question would be presented.

      This was a petition filed in this court on May 5, 1886, at Mt. Vernon, by John S. Smith, praying for a writ of habeas corpus. The facts of the case are stated in the opinion of the court.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This is an application by John S. Smith for a writ of habeas corpus. The petition shows that in obedience to a subpoena he appeared before the grand jury of Franklin county, then legally convened for the transaction of business; that upon such appearance a number of questions were propounded to him, the effect of which -was to elicit anything he might know about others than himself having played at any game or 'games with cards, for money, within eighteen months next before the time of such inquiry. The petitioner answered, in substance, that he knew of no person or persons having so played Vhose names he could give to the grand jury without furnishing such information as would lead to his own conviction, and on this ground declined to answer the questions. The matter having been referred to the court, it held, in substance, that while the witness could not be required to state anything affecting himself, personally, in respect to such game or games, he was bound to tell what he might know of others being engaged in such unlawful gaming. The witness, nevertheless, still standing upon what he regarded his constitutional rights, declined to answer the questions, and the court thereupon imposed upon him a fine of twenty-five dollars, and ordered that he stand committed until the same, together with all costs, was paid. Declining to pay the fine and costs, as required by the order and judgment of the court, he was taken into custody by the sheriff of the county, for the purpose of being committed to jail, whereupon the wdtness presented his petition to this court, setting up tlie foregoing facts, and asking to be discharged on habeas corpus.

It will be observed that the imprisonment complained of is by virtue of an order, in the nature of final process, to enforce a judgment at law for a specific sum of money. Such being the case, the petitioner can only be discharged for one of the causes set forth in the 22d section of the Habeas Corpus act, which are as follows: “First, where the court has exceeded the limit of its jurisdiction, either as to matter, place, sum or person; second, where, though the original imprisonment was lawful, yet by some act, omission or event which has subsequently taken place, the party has become entitled to his discharge; third, where the process is defective in some substantial form required by law; fourth, where the process, though in proper" form, has been issued in a case or under circumstances where the -law does not allow process or orders for imprisonment or arrest to issue; fifth, where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him; sixth, where the process appears to have been obtained through false pretence or bribery; seventh, where there is no general law, or any judgment, order or decree of a court, to authorize the process, if in a civil suit, or any conviction, if in a criminal proceeding. ”

In the 'light of the previous decisions of this court it is quite clear the petition fails to make out such a case as will authorize this court to grant the relief sought. Such being the case, it would be altogether useless to award the writ. "We regard the petition in this case as a mere attempt to review and set aside a judgment at law for an alleged error in the proceeding, where the court clearly had jurisdiction both of the person and subject matter of the suit. This can not be done. The petition shows that the petitioner was regularly brought before the grand jury as a witness, that he refused to answer certain questions propounded to - him, and that the court thereupon imposed a fine upon him. Whether the court was authorized, under the circumstances, to impose the fine, was a matter which the law authorized and empowered the court to determine, just as in any other case of alleged contempt. While, for the purposes of the argument, it may be conceded that the court erred in reaching the conclusion it did, nevertheless its right and duty to pass upon the question was clear, beyond all question. If the judgment was erroneous, as is claimed, the remedy w;aS the same as in the case of any other erroneous judgment where the right of appeal or writ of error is given. We regard the order directing the defendant to-stand committed till the fine and costs were paid, in the nature of final process,—a mere means of enforcing the payment of the judgment,i—which would have been suspended by any order staying the judgment itself. If, as claimed, the judgment is erroneous, a writ of error was the appropriate remedy, and upon' that hypothesis we must assume the reviewing tribunal would, if asked, have made the writ a supersedeas, which would have suspended the order of commitment till the case could be disposed of on the merits. The following authorities fully sustain the view here taken: The People ex rel. v. Foster, 104 Ill. 156; The People ex rel. v. Pirfenbrink, 96 id. 68; The People ex rel. v. Whitson, 74 id. 20; Hammond v. The People, 32 id. 446.

Had the circuit court simply entered an order in this case committing the petitioner to jail till he answered the. questions propounded to him, quite a different question would be presented for determination. But that is not the case presented by this record, hence the constitutional question argued by counsel in their briefs is not directly presented, and the court has no disposition to go out of its way to express its views upon the subject.

It is clear the imprisonment here complained of is no part of the punishment inflicted by the judgment, but is a mere subsidiary order in aid of the judgment, and which -would have been discharged by payment of the judgment. As a writ of error may be prosecuted as well after as before payment in such a case, it is not perceived how the petitioner will be subjected to any particular hardship or inconvenience in holding, his remedy, if he-has any, is by writ of error, and not by this proceeding.

Writ denied.