text:
    Addie Rohn et al. v. Ann Harris et al.

      Filed at Springfield

      October 31, 1889.

      1. Partition—ferry franchise—considered as in the nature of real estate. Strictly speaking, a ferry franchise is not real estate, but it partakes so far of the nature of real estate that it may be partitioned in the same manner as real estate.
    2. Same—ferry landings, as a part of the franchise. A ferry franchise, •or right to cross a river and receive tolls, is so connected with the land used for the landings as to be regarded as a part of the land, for the purpose of being partitioned.
    3. Same—prerequisites to an order of sale. The appointment of •commissioners to make partition of real esjtate, and their report, are essential to the entry of a decree of sale, whether the proceeding is by petition under the statute, or by bill in chancery, and a decree of ■sale without such precedent step will be reversed.
    4. Divesting a vested right—constitutional last'. The owner of an undivided half of a ferry and ferry franchise bought the life estate of ■one in the other undivided half, and afterward transferred his title and interest to a third person. This transfer, by an act of the General As.sembly, was confirmed, and the title in such third person declared to be absolute and perfect, with full power to sell and convey: Held, that the act could not affect the rights of the remainder-man in the undivided half, but merely confirmed such rights as the purchaser had acquired by his purchase, and no more.
    5. Limitations—adverse possession essential—cmd herein, of tenants in common. In order that the Statute of Limitations shall bar an action by the true owner of real estate, the possession of the defendant must have been adverse. The possession of a tenant in common for more than seven years, under color of title and the payment of all taxes, will not constitute a bar, unless such possession was adverse for the period of seven years.
    6. Same—when the statute will begin to run—as against a reversioner or remaindér-man. The Statute of Limitations does not run against a reversioner or remainder-man during the existence of the prior estate, for the reason that during that time the reversioner or remainder-man has no right of entry.
    "Appeal from the Circuit Court of Cass county; the Hon. Cyrus Epíer, Judge, presiding.
    This was a bill for partition, brought by Ann Harris and Mary Frances Byers,-in which they claim the undivided one-half of the ferry crossing the Illinois river opposite the town of Beardstown, Cass county, with all and singular the here-ditaments and appurtenances thereto belonging, including all ferry landings belonging to the same situated both in Cass and. Schuyler counties; also all boats, tackle and property belonging thereto, and the franchise thereof. The complainants claim title to an undivided one-half of the property as devisees of Edward Tull, who died in 1842.
    It appears from the evidence contained in the record, that the land on which the ferry has its landings at Beardstown, was entered in 1827, by Thomas Beard and E. C. March, who laid out Beardstown in the north fractional half of section 15, at that time in Morgan but now in Cass county. Prior to. 1828 Beard had established a ferry over the Illinois river where Beardstown now is. The town was laid out in 1829, and the-ferry was duly licensed and the license paid by Beard. From 1837 to 1865 the ferry was duly licensed to Beard and his. grantees by the commissioners of Cass county, and from 1865 till now by the city of Beardstown, and the license fee paid to that city. The owners of the boat landed on the lands above described, and claimed the right to do so since the ferry was established. The usual places of landing were on an unplatted piece of ground and on a public street of said city. Beard was the sole owner of said boat up to September 8, 1840, when, for the expressed consideration of $3500, his wife joining in the deed, he conveyed to Edward Tull, the deed containing the following: “Do bargain, sell and quitclaim unto Edward Tull, his heirs and assigns forever, all right, title and interest in and to the undivided half of the ferry crossing the Hlinois river opposite the town of Beardstown, Cass county, Illinois, with appurtenances thereto belonging.” Upon making the purchase, Tull took possession of the ferry, and, with Beard, ran and operated it until he died, in 1842. Tull died testate, and by his will devised “the rents, profits and all his interest in said ferry to his wife, Mary Ann Tull, during her natural life, for the maintenance of herself and child or children, and their nurture and education,” and after her decease “devises the same to his son, David Tull, or the proceeds thereof, if sold; and if any posthumous child or children be born, then said property, or the proceeds thereof, if sold, to be divided equally between said David and such child or children.”
    Tull left surviving a widow, Mary Ann, (who subsequently married David Clendening,) and one son, David Tull, and a posthumous child, Mary Frances, who afterwards married Abraham Byers. The widow, upon the death of her husband, went into the possession of the ferry, and so continued until May 19, 1849, when she sold and conveyed her life estate therein to Thomas Beard. From the date of this deed Beard operated the ferry until his death. He died testate, and by his will devised the ferry property, in trust, to his executors, one-half of the net proceeds of the ferry to be paid to his wife, and the balance of his property to be equally divided among his six children, and upon the death of his wife the reversionary interest of the lands devised to her to be equally divided among his children. The will also contained this provision: That the interest in the ferry at Beardstown, and purchased by him of Mrs. M. A. Clendening, and contingent upon her life, “be insured, in continuation of the policy of insurance which he now has, and a sufficient sum be taken from the annual receipts of the ferry to pay the annual -premiums before net proceeds be declared.” On the 20th day of June, 1853, the executors of the estate of Beard, by deed of that date, conveyed to the six children of said Beard all the interest Thomas Beard had in the ferry, and the lands in'Beardstown and in Schuyler county belonging to the ferry, with all boats belonging thereto.
    It also appears that the interest acquired by the six heirs of Beard, by mesne conveyances, passed to the defendant in the bill, Addie Bohn. It also appears that Thomas Beard, and those claiming under him, have held possession of and operated the property from the time Mary Ann Clendening conveyed, in 1849, down to the present time. It also appears that Mary Ann Clendening died on the 17th day of August, 1886.
    On the hearing, the circuit court found in favor of the complainants, and, without appointing commissioners to make partition, ordered and decreed that the property be sold. To reverse this decree the defendant in the bill appealed.
    Messrs. Morrison & Whitlock, for the appellants:
    We insist that a ferry is but a franchise, and is in no respect real property, and, as such, subject to a technical partition. A ferry right in no respect depends upon title to the lands used. Mills v. St. Clair County, 3 Scam. 53; Trustees of Schools v. Taiman, 13 Ill. 27; Lombard v. Cheever, 3 Gilm. 470; Gear v. Bullerdick, 34 Ill. 75; Mills v. St. Clair, 8 How. 579.
    A deed by the tenant for life may operate so as to defeat the estate of the reversioner. Safford v. Stubb, 117 Ill. 389.
    The Statute of Limitations is a bar to the relief sought.

      Messrs. Pollard & Phillips, for the appellees:
    The right to operate a public ferry is a franchise, and an estate in such a franchise and an estate in land rest upon the same principles. Dundy v. Chambers, 23 Ill. 369; Bridge Co. v. Lonergan, 91 id. 508; Town of Golconda v. Field, 108 id. 419.
    This ferry was established prior to the year 1828, under or recognized by the act of 1827,—Laws of Illinois, 1826-1827, p. 220,—and was operated for nearly forty years before the passage of the act of 1867, from which a grant would be presumed. A grant may be presumed after twenty years’ possession. Mills v. St. Clair County, 3 Scam. 53.
    The cases cited clearly show that a ferry franchise is in all respects treated as real estate by the Supreme Court of this State. If not land itself, it is a hereditament, which comes within the definition of real estate, and is within the terms of the Statute of Partition, and is conveyed and inherited in all respects like land.
    The act of February, 1867, under which appellants claim, did not affect the rights of .appellees. All that it purported to do was to confirm in Jones and Thompson the rights they had acquired in the ferry by their purchase from Nancy Beard. It in fact recognized the existence of the old franchise. (Town of Golconda v. Field, 108 Ill. 419.) It does not pretend to confirm rights acquired from others. Nor does it, by its language, take away the rights of appellees, and their rights can not be affected by it without their consent.
    The appellees were tenants in common with appellants, and those under whom they claim, with the right to enter into possession on the termination of the life estate, and if any additional rights were conferred by that act, they inured to the benefit of appellees as well as appellants. One tenant in common can not acquire an outstanding title or incumbrance on the joint estate, and use it for his exclusive benefit against his co-tenant. The purchase inures to the common benefit, and the purchaser is entitled to contribution. 4 Kent’s Com. p. 370, note 6.
    It was not in the power of the legislature to take the property of appellees in the old franchise, and confer it upon Jones and Thompson. Mills v. St.Clair County, 2 Gilm. 199.
    The possession of a tenant for life is not adverse to the estate of the remainder man, and the Statute of Limitations does not begin to run against the remainder-man until the death of the life tenant. Jackson v. Shoomater, 4 Johns. 590; Keith v. Keith, 80 Mo. 125; Carr v. Dings, 54 id. 95; Roberts v. Nelson, 86 id. 21.
    Lands, etc., may be partitioned under the statute. Starr & Curtis Stat. chap. 106, p. 1791, sec. 1..
   Mr. Justice Craig

delivered the opinion of the Court:

It is first claimed that a ferry is but a franchise, and is in no respect real property, and a bill for partition will not lie. The privilege of establishing a ferry and taking tolls for the use of the same is a franchise. (3 Kent, 458.) The same author says (459): “An estate in such a franchise and an estate in land rest upon the same principle, being equally grants of a right or privilege for an adequate consideration.” In Dundy v. Chambers, 23 Ill. 369, the question arose whether 'a ferry franchise is embraced within and governed by the Conveyance act, or whether it was to be regarded as personal chattels in its sale and transfer, and the court held that a ferry franchise could only be transferred in accordance with the provisions of the statute in reference to the conveyance of real estate. Strictly speaking, it may be conceded that a ferry franchise is not real estate, but it partakes so far of the nature of real estate that we are inclined to hold that it may be partitioned in the same manner as real property. The land on each side of the river where the boats landed belonged to and was a part of the ferry, and no question can arise as to the jurisdiction of the court to award a partition of the land; and the franchise to cross the river and receive tolls was so connected with the land that it may, for the purpose of this proceeding, be regarded as a part thereof.

It is also claimed that whatever rights complainants had in the property are barred by the Statute of Limitations. It may be true that defendants’ grantees, Jones and Thompson, held possession of the property under color of title, and paid all taxes for more than seven years; but the bar of the Statute of Limitations can not be invoked to defeat the title of the complainants, under the facts of this case, on the ground that the possession was not adverse. It will be remembered that Edward Tull devised his undivided half of the ferry to his wife, Mary Ann, for life, while the remainder in fee passed to complainants. Mary Ann sold and conveyed this life estate to Beard in 1849. Beard held under this title until his death, and Jones and Thompson, who subsequently acquired Beard’s title, held under the same title, and the defendants occupy under the same title. The various deeds and wills were upon-record, so that each purchaser had notice of the title under which he occupied the property. Until the termination of the-life estate by the death of Mary Ann Tull, which did not occur until 1886, the complainants, as remainder-men, had no right of entry, as they had no right to the possession until the- death of the life tenant, and until the death of the life tenant the- statute could not begin to run. It is a plain proposition, as held in Higgins v. Crosby, 40 Ill. 260, that the statute does not run against a reversioner or remainder-man during the existence-of the prior estate, because during that time he has- no- right of entry.

By an act of the General Assembly of the State of Illinois, approved February 26, 1867, the transfer of the ferry property from Beard to Jones and Thompson was confirmed, and1 the title of Jones and Thompson in the same was declared to be-absolute and perfect, with full power to sell and convey, which act took effect from its passage. This act could not affect complainants’ title. It merely confirmed in Jones and Thompson such rights as they had acquired under their purchase. The legislature had no power to divest complainants’ title, if an attempt had been made to do so, but the legislature did not undertake to divest complainants’ title. We do not therefore regard this act as having any particular bearing on the rights of the parties.

It appears, however, from an examination of the decree, that the court-decreed a sale of the property without appointing commissioners to divide it, as required by the statute, and it is claimed that this action of the court was not erroneous, because this was a proceeding in chancery, and not a petition for partition under the statute. Section 1, of chapter 106, entitled “Partition,” provides, that “where land, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary, * * * any one or more of the persons interested therein may compel a partition thereof by bill in chancery, as heretofore, or by petition in the circuit court of the proper county.” Section 16 declares, that “the court, when it shall order a partition of any premises to be- made, under the provisions of this act, shall appoint three commissioners, not connected with any of the parties, * * * to make partition of the premises.” Section 17 provides for an oath, and section 18 defines the duties, and section 19 provides for a report. As before observed, section 1 of the statute provides that the proceeding may be by bill in chancery or by petition under the statute. It would therefore seem that either mode which might be resorted to would fall within the provisions of the statute, and if so, section 16 in plain terms requires the appointment of commissioners. We are therefore inclined to hold, that whether the proceeding may be by bill or petition, in either event the statute requires the court to appoint commissioners.

As the court failed to observe this requirement of the law, the decree will be reversed and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    William P. Randolph, Admr. v. The People, for the use of the Trustees of Schools.

      Filed at Springfield

      October 31, 1889.

    1. Appeal—from county court to circuit court—on final order to pay claim. An appeal lies to the circuit court from an order of the county court directing an administrator to pay over a specified sum of money on a claim allowed against an estate, within a given time, and the costs of the proceeding, and providing for his imprisonment in case of his failure to make such payment. Such order is a final judgment, as much as if an execution had been awarded. The manner of enforcing payment, whether by execution or attachment, does not affect the character of the order or decree.
    2. Same—•former decision distinguished. In the case of Saines v. People, 97 Ill. 161, which was brought from the county court to this corn-t directly, the order of commitment was not for the enforcement of an order for the payment of money. It was a simple order committing the party to jail, and not a judgment for money, to be paid within a fixed time.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. Geobge W. Hebdman, Judge, presiding.
    This was a proceeding in the Logan county court, purporting to he an attachment against the appellant, as administrator of the estate of W. H. Young, deceased, for a contempt of court by appellant in failing to pay the trustees of schools $812.10, in pursuance of an order of the court made July 23, 1868. Appellant filed a plea or answer, averring that no demand had been made on him for the money prior to January 14, 1888; that within thirty days after such demand he had made two different tenders of the money,—$812.10,—and again tendered the same in court, which tenders had been refused.
    The county court rendered no judgment in regard to any question of contempt. The liability of the administrator to pay the $812.10 not being controverted, the only question tried was that of interest, and the court, by adding to the $812.10 interest thereon at six per cent to July 1, 1872, and ten percent after that date, aggregating $2287.92, rendered judgment for that sum, and ordered appellant to pay the same in twenty days, and on failure to pay the same, that he be committed to jail until payment of said money, and until released by due process of law.
    From this order appellant perfected an appeal to the circuit court. In the circuit court appellees entered a motion to dismiss the appeal, which was sustained. On appeal to the Appellate Court, the order of dismissal was affirmed, and the appellant, by his further appeal, brings the case to this court.
    Mr. W. B. Jones, for the appellant:
    The order of the county court being final", and a judgment for the payment of money, the appeal to the circuit court was authorized by section 124, chapter 3, and section 240, chapter 3t7, of the Revised Statutes. Pfirshing v. Falsh, 87 Ill. 261; Wier v. Gand, 88 id. 491; Steel v. Steel, 89 id. 51.
    It is claimed, that because this proceeding is styled an attachment for contempt, partaking of the nature of a criminal proceeding, no appeal lies from the county to the circuit court, referring to Haines v. People, 97 Ill. 161. The argument might be good if the county court had rendered a judgment against the appellant for contempt, and nothing more, as was done in the Haines case.

    Messrs. Beach & Hodnett, for the appellees:
    A proceeding under the 115th section of the act in regard to the administration of estates, is for a contempt, and an appeal does does not lie from the order of the county court made thereunder. Haines v. People, 97 Ill. 161.
    The county court has original jurisdiction of the settlement of estates. Const. 1870, art. 6, sec. 18.

      When an order of distribution has been made, the only way to enforce it in the county court is by proceeding under the 115th section of the Administration act. Randolph v. Trustees of Schools, 26 Bradw. 241.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was an appeal from an order of the County Court of Logan County to the Circuit Court of that county; the Circuit Court dismissed the appeal; the Appellate Court has affirmed such dismissal, and the ease is brought here by a further appeal.

The main question discussed by the counsel on both sides, and the only one which we deem it necessary to decide, is this: was the appeal properly taken from the County Court to the Circuit Court, or should the case have been brought directly to this Court by writ of error issued herefrom to the County Court ?

Before July 23, 1868, the appellant, Randolph, was appointed by said County Court administrator of the estate of William H. Young, deceased. On that day there was a final settlement of the estate, and an order was then entered directing the appellant, as such administrator, to pay to the trustees of schools of T. 19 N. R. 2 W. the sum of $812.10.

After the lapse of many years, the County Court entered another order, wherein, after finding, that appellant had failed to pay over the money within thirty days after demand made for it, it was “thereupon ordered, adjudged and decreed by the Court that said Wm. P. Randolph, Admr. as aforesaid, pay to the said trustees, etc., said sum of $2287.92 under said former order of the Court, the said sum being the principal sum together with the legal interest due thereon, and that said payment be made within twenty days from this day, and that said Admr. pay all costs of this proceeding in like time; * * * that, upon the failure of said * * * admr. to pay said sum of money so ordered paid * * * he * * * be committed to the county jail of Logan County until payment of said money and until released by due process of law.” (Secs. 114 and 115, chap. 3, Starr & 0. Stat. pages 243 and 244). It was from this last order that the appeal was taken to the Circuit Court. We think that such appeal was properly taken.

Sec. 124 of the “Act in regard to the administration of estates” (Starr & C. Ann. Stat. page 247) provides, that “appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this Act, to the Circuit Court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court,” etc. The order appealed from was in a matter which arose under said Act.

Again, section 122 of the Act approved March 26, 1874, entitled “An Act to extend the jurisdiction of county courts,” etc., found in chap. 37 of Rev. Stat. under the head of “County Courts,” (Hurd’s Rev. Stat. 1885, page 367; Starr & C. Ann. Stat. page 728), provides that “appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts of their respective counties,” etc., except in certain specified cases, etc. This section 122 was discussed in The People ex rel. v. Prenclergast, 117 Ill. 588. In the Prendergast case an order similar to the one now under consideration was held to be a final order within the meaning of. said section 122, and the following language there used .is applicable here: “relator was adjudged and decreed by the court to pay to petitioners in that cause the sum of $2387.95 by a certain date fixed by the order of the court. No element of a final decree is wanting in the case. The decree is absolute, and requires the unconditional payment by relator, with-„ in a short period fixed, to petitioners of the amount of money found due from him. That is as much a final judgment as if the court had awarded execution for its collection. The manner of enforcing payment, whether by execution or by attachment for disobedience to the judgment and decree of the court, does not affect the character of the decree. Whether enforced in one way or the other, it is none the less a final decree. Not the slightest doubt is entertained that an appeal would lie from the order of the County Court, ” etc.

Counsel for appellees contend that the order now under consideration is an order committing the appellant for contempt of court, and that there is no appeal from the county to the circuit court in case of such an order of committal for contempt, but that the process of review must be by writ of error from the Supreme Court to the county court. The case of Haines v. The People, 97 Ill. 161, is relied upon in support of this contention.

In the Haines case, the order appealed from was as follows: “Ordered by the court that the said J. Charles Haines be committed to the common jail of Cook County, Illinois, until he shall comply with the requirements of an order made and entered of record December 8, A. D. 1879, or until the further order of the court.” This was a simple order committing the party to jail, and not a judgment for money to be paid within a fixed time.

In the case at bar, there is a final order or judgment that appellant pay so much money within twenty days, and, in default of his doing so, that he be committed to jail. The order that he be committed to jail is merely ancillary to the money judgment. The commitment, like an execution, is the process consequent upon the judgment, and to be resorted to for its enforcement. The final order of payment is one which the appellant has a right to have reviewed, and, by the terms of the statute, such review can be had by appeal to the circuit court.

The judgments of the Appellate and Circuit Courts are reversed and the cause is remanded to the Circuit Court.

Judgment reversed.


author: Mr. Justice Wilkin

text:
    Charles P. Swigert, Auditor, et al. v. The County of Hamilton.

      Filed at Springfield

      October 31, 1889.

    1. Municipal funds—in the State treasury—refunding thereof to the municipality—the statute construed. Where taxes have been collected for the payment of registered bonds of a municipal corporation, and interest thereon, a part of which bonds have been declared void, and the money arising from such taxes is in the hands of the State Treasurer, but the amount in his hands collected for the payment of the void bonds as distinct from the bonds which are valid, has not been definitely ascertained, it is not the duty of the Auditor of Public Accounts to issue his warrant on the Treasurer for the refunding of the money to the municipality, and he will have no authority of law so to do, and if he should issue his warrant for the unascertained amount, it could not be paid, and therefore mandamus will not lie to compel him to issue such warrant.
    2. Certain county authorities had issued two series of bonds in aid of the construction of railroads, the first series being for $200,000 and the second for $37,000, payable at a future day, with interest coupons attached, the first of which series was by this court adjudged void. Both series of bonds were registered. Taxes were levied and collected to pay the interest on all the bonds, and came into the hands of the State Treasurer before the first series was adjudged void. Without any adjustment of the amount in the hands of the State Treasurer derived by taxes for the illegal bonds, the county board sought, by mandamus, to compel the Auditor to issue his warrant in its favor upon the State Treasurer for the amount of such illegal taxes: Held, that it was not the duty of the Auditor to ascertain the amount for which he should draw his warrant, and that he had no authority of law to issue such warrant for an indefinite and unascertained amount.
    3. The act of June 10, 1885, in relation to the refunding of surplus funds in the State treasury to counties, cities, etc., does not contemplate a case in which only a part of the bonds of a county shall be paid or held void. That act provides for the repayment of the balance of the county fund in the hands of the State Treasurer only in cases where there are no other valid bonds issued by such county, registered in pursuance of law, to which such balance of funds may be applied.
    4. Where a county has funds in the hands of the State Treasurer, collected to pay interest coupons on its bonds registered according to law, a part of which bonds have been adjudged void, such funds may be legally, under the statute, applied to the payment of the valid bonds of such county. •
    5. Where all the registered bonds of a county are paid, or when all to which the fund can be applied have been judicially declared void, the balance of that fund in the State treasury does not rest in computation, but is a definite amount, being the whole of that which remains. In issuing his warrant in such case the act of the Auditor would be purely ministerial.
    6. Mandamus—whether it will lie. The writ of mandamus will not be awarded in any case unless the relator shows a clear legal right to have the thing sought by it done, and in the manner asked. It will never be awarded in a doubtful case, or where it will prove barren or fruitless, or can not have a beneficial effect.
    7. Every material fact necessary to show the plain duty of the respondent to act in the premises, must be set forth by the party seeking to compel the performance of an act. The burden is always on the relator to clearly establish the right sought to be enforced. It must in all cases clearly appear that the officer against whom the writ is asked is actually in default in the performance of some act which the law specially enjoins as a duty resulting from his office.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    This is a mandamus proceeding to compel the payment of money alleged to be in the State treasury belonging to the petitioner.
    It is alleged in the petition, that in October and November, 1871, the petitioner, Hamilton county, issued and delivered to the St. Louis and Southeastern Bailway Company, $200,000 of its bonds, payable in twenty years, with seven per cent interest, payable on the first days of January and July of each year,—which bonds were duly registered in the office of the Auditor of Public Accounts; that said bonds have been decided by the Supreme Court of the State of Illinois to be void,—a certified copy of which decision was, on the 18th day of June, 1888, delivered to each of the defendants; that on the 23d of June, 1888, the county board of said county passed a resolution requiring the Auditor of Public Accounts to issue his warrant upon the State Treasurer for the amount of money that might be in the State treasury to the credit of the county of Hamilton, of the money levied and collected to pay the interest on said $200,000 in bonds- of said county of Hamilton, payable to John B. Standerfer, county treasurer of Hamilton county; that on the 25th day of June, 1888, the county clerk of Hamilton county forwarded a duly certified copy of said resolution to the Auditor; that the Auditor acknowledged its receipt, and refused to comply, for the reason, as alleged, that there “are other valid registered bonds to which said tax can be applied;” that the other valid bonds to which .said Auditor proposes to apply said taxes, were a separate and different series of bonds from said $200,000; that the valid bonds referred to are thirty-seven in number, for the sum of $1000 each, and were issued by the county of Hamilton on the first day of January, 1872, to the Evansville and Southern Illinois Railroad Company, payable to it or bearer twenty years after the date thereof, with interest at seven per cent per annum, payable semi-annually, with coupons attached; that the money now in the State treasury, which has been collected by taxation off the property and tax-payers of Hamilton county to pay the interest on the said $200,000 bonds, amounts to about $17,500, the exact amount of which is not known to petitioner; that about $14,000 of said $17,500 was collected, by taxation, off the property and tax-payers of Hamilton county during the year 1887, and during that year there were objections filed to the delinquent tax list on account of the illegality of said tax to pay interest on said $200,000 in bonds, and such objections were sustained by the county court of Hamilton county, and judgment on said delinquent list refused to the amount of about $1700, which is not and will not be paid,—so that if the money in the State treasury was applied, as said Auditor proposes, towards the payment of said $37,000, it would be an unjust, unlawful and unequal application of said $17,500 upon said bonds of $37,000, which is a debt that, if paid at all, should be paid by all the property owners and tax-payers of Hamilton county equally and uniformly upon all property, by all tax-payers alike; that said $17,500 was unlawfully collected, and can not be lawfully appropriated or applied for any purpose by the Auditor or State Treasurer only to return it to the county treasurer of Hamilton county, under the act of June 10, 1885, when it may be returned to the tax-payers who paid it. Yet the Auditor has neglected and refused to draw his warrant and comply with the request of the county board of Hamilton county, whereby the tax-payers are prevented from receiving from said county treasurer the respective amounts of taxes paid by them and each of them, and the county of Hamilton is deprived of the legitimate use of so much of said money as may not be called for by said tax-payers.
    The prayer is for a writ of mandamus, directed to Charles P. Swigert, Auditor of Public Accounts, or his successor in •office, to compel him to draw his warrant on John E. Tan-jier, State Treasurer, or his successor in office, and that said Auditor be compelled to draw the same, payable to John B. Standerfer, county treasurer of Hamilton county, for-said sum •of $17,500, or such balance as may be in said State Treasurer’s custody that has been collected to pay interest on said $200,000 bonds, and that such further order may be made as justice may require.
    The Auditor answered, admitting the issuing and registry ■of the $200,000 of bonds mentioned in the petition, and then avers, that there are and have been registered in the office of the Auditor of Public Accounts, ten years and more last past, bonds of Hamilton county, other and different from the said bonds of $200,000, which bonds have never been declared void by any court, and are existing and valid bonds and claims, as registered bonds, against said Hamilton county; that it is the duty of the Auditor of Public Accounts to certify, annually, to -the county clerk of Hamilton county, the rate of tax necessary to be collected to pay, annually, the interest of said bonds when the same shall become due, together with an estimate of the expense of the collection and payment of said bonds or interest, and that during all said time he has performed that duty; that the registered bond account of Hamilton county with the Auditor is kept as one account, and the amount requisite to pay the interest, or the principal and interest, due upon the registered bonds, is and has been annually certified to the county clerk of said Hamilton county in the aggregate as one sum, and not as separate and specific sums, for the-paying of separate and specific issues of bonds, and that said amounts collected and returned to the Auditor of Public Accounts are collected and returned as one amount due to the registered bond fund account of said office from the county of Hamilton; and the said Auditor is not required to keep a separate account of such funds, and has no means of determining, from the records of his office, the amount of money in the hand’s of the Treasurer of the State of Illinois collected or paid on account of the specific bonds alleged in said petition to have been declared void; he avers that there are existing valid bonds of the county of Hamilton, to the payment of which, funds in the hands of the Treasurer of .the State of Illinois, to the credit of the registered bond fund of the county of Hamilton, are applicable, the payment of which will absorb all the funds now in the hands of the Treasurer of the State of Illinois to the credit of the registered bond fund of the county of Hamilton, and to the payment of which, and the necessary expenses connected therewith, the same will be applied as far as the same may be lawful. He denies that there is any money in the treasury of the State of Illinois to the credit of the county of Hamilton, but avers that whatever money is in the hands of the Treasurer, collected by reason of the amount certified by the Auditor of Public Accounts to the county clerk of Hamilton county necessary to pay the registered bonds and the interest thereon of said county, is to the credit of the registered bond fund of Hamilton county, and is applicable to the payment of said bonds so long as there shall be any unpaid registered bonds of said county. He avers that the thirty-seven bonds, amounting to $37,000, referred to in the petition, were registered with the Auditor of Public Accounts long prior to the beginning of this suit; that the same are valid and unpaid ; that interest is due and payable yearly, and the bonds are subject to call for payment by the county at any time, and the entire amount of money in the hands of the Treasurer of the State of Illinois to the credit of the registered bond fund of the county of Hamilton is applicable to the payment of these bonds, and is liable to be required for their payment at any time when the bonds shall be called for payment, and the same is being applied to the payment of the interest which falls due annually upon said bonds, and said funds will be wholly absorbed by the payment of the interest and the principal of said bonds. He denies that there is in the hands of the Treasurer $17,500, or any other sum, unlawfully collected off the property or tax-payers of Hamilton county; denies that there is any money in the treasury which it is his duty to order returned to the county treasurer of Hamilton county, under the act of the General Assembly referred to in the petition.
    No answer was filed by the Treasurer. There was a hearing on the petition, answer of the Auditor, and replication.
    The petitioner introduced in evidence a certificate of the State Treasurer, of February 4, 1889, certifying- that there was in the treasury, to the credit of Hamilton county bond fund, the sum of $17,824.98, and that there were out-standing, unpaid, past due interest coupons from said $37,000 of bonds, to the amount of $315. Petitioner then called John T. Peters, of the Treasurer’s office, who testified: “The railroad debt of Hamilton county is $237,000. There were two issues of bonds,—one of $200,000 and one of $37,000. Unpaid coupons referred to in the certificate are on the $37,000 bonds. They were not paid because they were not presented. The money on hand,' as shown by the certificate referred to, was collected to pay the interest on the $200,000 bonds as well as the $37,000 bonds. The interest on both bonds would be paid out of that fund if not restrained. There has been nothing paid on the $200,000 bonds since they have been declared illegal. In the office of the Treasurer we keep one joint account,—one general account for Hamilton county. In the Treasurer’s office the interest is paid from the record furnished by the State Auditor. He himself levies the tax, and furnishes us the record by which to pay, and as it is paid it is checked off from that record. But our registered account with the bond fund of the county is kept all together—we do not keep it separate.”
    Cross-examination.—“This account is kept as one account with the registered bond fund of Hamilton county. The money is so paid to our office. The money is not paid to our office, a distinct part of it for the payment of any particular bonds or interest on ''these bonds. All the money that comes into our hands to the credit of Hamilton county bond fund is applicable to any and all registered bonds or coupons which may be due or presented to us, unless such payment is enjoined. Officially, our office has no means of knowing what amount of levy is made for the payment of registered bonds and coupons. When money is paid to our office for the levy of any one year, we can not know whether that is the full amount of the levy. If all taxes were collected proportionately, none enjoined, same on both issue of bonds, and none restrained from collection while others are being paid, 200-237ths of the registered bond fund collected for the payment of interest would be used to pay interest on the $200,000 bonds, and 37-237ths on the $37,000 bonds. The money in the treasury to the credit of the Hamilton county bond fund is all applicable, if it required that amount, to the payment of the interest of the $37,000 bonds. Where the .interest is not .due, the registered bond fund may be applied, under the law, to the payment of bonds before they are due, if presented. Under the decision of the court, we can not pay any more interest on the $200,000 bonds, and that gives a surplus, which, under the law, can he applied to the payment of any bond presented, even before due, if the holders want to surrender them, and without the consent of the county. This money was collected to pay interest, but the law provided that where it is not needed for interest, any surplus shall be applied to the principal.”
    Also, W. H. Henlde, who testified he was employed in the Auditor’s office. “The rate levied by the Auditor for the year 1887, for the payment of interest on Hamilton county registered bonds, was one dollar on the hundred on the assessed equalized value of the property. Part of that fund is now in the treasury. I am unable to state what amount was realized on that levy. The full amount of the levy was not collected. We intended to raise $15,352. There was a surplus in the treasury, when this levy was made, of $1390. At the time we make the levy, we ascertain the full amount in the treasury to the credit of the bond fund, and get the amount of the outstanding unpaid coupons due or to become due before the first levy is made, and take the one from the other, and that leaves the surplus. These coupons, sometimes outstanding, run back a series of years, and it may be that the difference, if any difference, between the amount now in the treasury and the amount levied and computed in the treasury at the time of the levy, is the coujions that are still outstanding and have not been presented. It not infrequently occurs to have coupons running back eight or nine years; that certificate was made to the county clerk October 25, 1887. No levy was made last year, 1888, because of the decision of the Supreme Court. The fund now in the treasury can be applied to the payment either of principal or interest of the $37,000 bonds, according to the record of our office, the record showing the bonds subject -to call. Although the $37,000 are n'ot due until 1892, I think the fund in the treasury could be applied, without the consent of the county, to the payment of the bonds before they are due. Even if they were payable at the end of five years from date, at the will or option of the county, the Treasurer would be authorized to pay them, without the consent of the county.’’

      Cross-examination. — “The records of the Auditor’s office show the issue of $37,000 of bonds to be subject to call. The levy made by the Auditor is one single rate to cover the full amount of principal or interest, as the case may be, of the entire issue of bonds registered, and when the funds are received, they are ordered by the Auditor to be turned over to the State Treasurer, to be credited to the bond fund, and passed to the particular locality,— in this case, Hamilton county. It is levied as one rate, for all purposes, for the payment of registered bonds, and the money in the treasury is applicable to the payment of any registered bonds in Hamilton county, provided there is a surplus over and above the amount needed to pay the interest for the ensuing or current year. By reason of this surplus in the treasury no levy was made in the year 1888 for the payment of the interest falling due on the $37,000 valid bonds, up to and including January, 1890. The levy made, includes an allowance for expenses, and usually there is an abatement on some part of the registered bond fund tax on different accounts or different pieces of property. There was an abatement of a portion of the amount levied for the years 1887 and 1888. It is not true that the 200-237ths, or any part of the fund collected, is set aside for the payment of the $200,000 bonds, or any particular bonds. The full amount is dedicated to the payment of the entire interest that may be due. If one issue of valid bonds should be presented before the presentation of a different issue of valid bonds, and the amount in the treasury would only be sufficient to pay the first issue presented, it would all be apxihed for that purpose. If the usual levy had been made, and there had been no injunction to stop the payment of any part of this fund, there would have been a surplus in the treasury over and above the payment of all interest and coupons at the time of making the last levy—October, 1888. It can not be said that when you take out of the total amount in the treasury to the credit of the registered bond fund, the total amount of any one issue of bonds, or interest thereon, the remainder is a levy for the payment of the other bonds.”' —Which was all the evidence introduced by either party on the trial of the cause.
    No evidence was offered by the respondents. The court below ordered a peremptory writ to issue, commanding the-Auditor to draw his warrants for the sum of $14,919.98, and the Treasurer to pay the same, as prayed in the petition. The-Auditor appeals.
    Mr. George Hunt, Attorney General, for the appellant.
    Mr. William Hamill, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court r

The act of June 10,1885, under which the petition is filed, is entitled “An act making provision for the refunding of surplus funds that are now or hereafter may be in the State treasury to the credit of bond funds of counties, cities, towns, townships, school districts, or other municipal corporations, having bonds registered in the office of the Auditor of Public-Accounts, when such bonds have .been paid or cancelled, or-when the bonds purporting to have been issued by any county, etc., and registered in the office of the Auditor aforesaid, shall be held, or the law under which said bonds purport to have-been issued shall be held, void by the Supreme Court of this. State or the Supreme Court of the United States.”

The second section, on which appellee’s right of recovery is; based, is as follows: “Whenever the Supreme Court of this; State, or the Supreme Court of the United States, shall hold any bonds void, purporting to be issued by any county, township, city, town, school district or other municipal corporation, registered in pursuance of law in the .office of the Auditor of Public Accounts, or whenever the act under which such bonds purport to have been issued shall be held to be void by the Supreme Court of this State or Supreme Court of the United States, and there remains in the State treasury a balance of funds to the credit of the bond fund of such county, township, city, town, school district or other municipal corporation purporting to have issued said bonds, and there are no other valid bonds issued by said county, township, city, town, school district or other municipal corporation registered in the office of the Auditor of Public Accounts in pursuance of law, to which said balance of funds may be applied, it shall be the duty of the Auditor, upon receipt of certified resolution provided for in section 3 of this act, to draw his warrant on the State Treasurer for the amount of said balance, and he is hereby authorized to pay the same out of the proper fund.”

The first question suggested by an examination of this record is, what specific duty is the Auditor shown to have refused or neglected to perform. It will be seen that there is nothing, either in the petition or proofs, to show that there was, at any time prior to the rendering of the judgment in this case, any ascertained amount for which the Auditor could have issued his warrant. Had he complied with the resolution of the county board, for anything appearing in the petition or proofs, he could only have made his warrant for an indefinite amount. In fact it clearly appears, that inasmuch as all registered bonds of Hamilton county had not been declared void, no ascertained “balance of funds to the credit of the bond fund of such county” remained in the State treasury. If, therefore, the county could recover the proportionate part of such balance, which was collected to pay the interest on the void bonds, the amount to which it would be entitled could only be arrived^at by computation. But there is nothing in the statute of 1885 which makes it the duty of the Auditor to ascertain, by any such process, or by any process, the amount for which he shall draw his warrant; and even if it did, this proceeding is not to compel him to perform that duty, but to perform the ministerial act of issuing his warrant for an unliquidated amount. It was not the duty of the Auditor to issue such a warrant. He had no authority of law for so doing, and it would have been wholly unavailing if he had done so. No such warrant could have been paid by the Treasurer. Therefore, mandamus will not lie.

“The writ of mandamus will not be awarded in any case unless the relator shows a clear legal right to have the thing sought by it done, and in the manner asked.” “It will never be ordered in a doubtful case.” “The court will always refuse to grant it when it is manifest it will be barren and fruitless, or can not have a beneficial effect.” “Every material fact necessary to show the plain duty of the respondent to act in the premises must be set forth by a party seeking to compel the performance of an act.” “The burden is always on the relator to clearly establish the right sought to be enforced. ” “It must, in all cases, clearly appear that the officer against whom the jurisdiction by mandamus is invoked, is actually in default in the performance of some act which the law specially enjoins as a duty resulting from his office.” These are inflexible rules, applicable to every mandamus proceeding against a public officer, settled by repeated decisions of this and other courts. When they are applied to this case, it is clear that the writ should have been denied.

The difficulty with the petitioner’s case results from the fact that the act of June 10, 1885, does not contemplate a case in which only a part of the bonds of a county shall be paid or held void. The first section provides for the repayment of any balance to the credit of the bond fund of a county when its bonds have been paid. By its express terms, “all the bonds * * * that may have been registered must have been paid.” The second section, under which this petition is filed, provides for repayment of such balance when the bonds have been held void. It expressly limits the recovery to cases in which there are no other valid bonds issued by such county, registered in pursuance of law, to which said balance of funds may be applied. Under either section, eases falling within its letter will present no difficulty in a mandamus proceeding. If all the bonds of a county are paid, or if all have been declared void to which the bond fund can be applied, the balance to the credit of that fund does not rest in computation, but is a definite amount, being the whole of that which remains. In issuing his warrant in such case the act of the Auditor would be purely ministerial. The county officers, by going to the State Treasurer, could ascertain the exact balance of that fund, and by resolution of the board request the Auditor to issue his warrant for the amount of such balance, as is required in section 3 of the act.

It is argued on behalf of petitioner, that the fund which the county is seeking to recover can not be legally applied to the payment of the valid bonds of Hamilton county; but it is not denied that a part of the bond fund of the county remaining in the State treasury at the time the $200,000 bonds were declared void, might be applied to the valid bonds. In other words, even on petitioner’s theory, there were other valid bonds issued by such county, registered in the office of the Auditor of Public Accounts, in pursuance of law, to which apart of said balance of funds might be applied, and that fact renders it uncertain as to what amount the Auditor’s warrant shall be drawn for. The bond fund is a unit. When it becomes necessary to apportion it, and say how much belongs to the valid bonds and how much the county is entitled to recover on account of the void bonds, mandamus will not lie against the Auditor,—at least until that apportionment has been made, and he is called upon by the county to issue his warrant for a definite amount.

"We are also of the opinion, that, under the various provisions of our statute, the bond fund of Hamilton county remaining in the State treasury may be legally applied to the payment of the valid bonds of said county. But in the view we take of the case it is unnecessary to discuss that question.

The judgment will be reversed.

Judgment reversed.


author: Mr. Chief Justice Shope

text:
    The Consolidated Coal Company of St. Louis v. Amelia Maehl.

      Filed at Springfield

      October 31, 1889.

    1. Negligence—competency of engineer—evidence on that question. In an action by a widow against a mining company, to recover for the death of her husband through negligence, the plaintiff showed, by the engineer of defendant, that he had run the engine connected with the hoisting apparatus at the mine, for two months prior to the accident, and, over defendant’s objection, he was allowed to testify to his want of experience and competency at the time of his employment, and as to what proficiency he had attained as an engineer in that time, the injury having resulted from the alleged incompetency of the engineer: Held, that the evidence was proper, as tending to show, from his previous training and experience, or want Of it, whether the engineer was competent and experienced at the time of the injury.
    2. Same—instruction varying from the pleadings—presumption. In the same case, an instruction for the plaintiff, after correctly stating the duties of mining corporations under the statute, told the jury, that if they believed, from the evidence, that the defendant had willfully failed to comply with its duty, or willfully violated the provisions of the statute, as alleged in the declaration, the defendant was liable, if the other necessary facts, which were named, concurred. Two counts of the declaration were faulty, and did not state defendant’s duty correctly, but no evidence was heard under such counts: Held, that while the instruction was not to be commended, there was no prejudicial error in giving it, as it woul d be presumed the jury looked to the breach of duty stated in the instruction, and not to that alleged in the faulty counts.

      3. Measure of damages—death from negligence—instruction. In an action to recover damages occasioned by the death of a person from negligence, an instruction for the plaintiff, after having left it to the jury to be found, from the evidence, whether the deceased had children, and the plaintiff was his widow, told them, that if they further believed, from the evidence, “that if the plaintiff had been damaged by reason of the loss of the life” of her husband, “then the jury will find the defendant guilty,” and in “establishing said damages the jury may take into consideration that the deceased left surviving, said children, in addition to the plaintiff, his widow.” In the next instruction the rule of law as to the measure of damages was correctly stated, and limited the recovery to the pecuniary loss sustained by the plaintiff: Held, that, taking the two instructions together, there was no prejudicial error. The first was not intended as an instruction upon the measure of damages.
    4. Practice—submitting special questions of fact to the jury. On the trial in an action to recover damages from a mining company for causing the death of the plaintiff’s husband, the plaintiff, by evidence introduced by her, and by instructions, abandoned all other charges in her declaration except that of defective hoisting machinery and want of lights in the shaft where the injury was received. The defendant asked the court to submit to the jury certain special questions as to whether the death of the plaintiff’s husband was caused by certain other omissions of this defendant, which was refused: Held, as no recovery was sought on the grounds upon which the special questions were based, there was no error in refusing the motion.
    5. Same—sending jury bach to consider further of their verdict. After a cause had been submitted to a jury, it was agreed that they might, when they should agree, seal their verdict and separate, and meet the court on the following morning. On the reconvening of court the jury were present, and answered to their names, and the verdict was handed to the judge, who, on finding they had failed to answer certain questions, directed the jury to retire and further consider of their verdict, and return answers to the questions submitted to them. Upon their return their verdict and answers were read, and the court polled them, and each answered, “these were their verdictsHeld, no error in sending the jury back to return a proper verdict.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Ma-coupin county; the Hon. James A. Creighton, Judge, presiding.
    Mr. Charles W. Thomas, for the appellant.

      Mr. B. R. Burroughs, and Mr. George L. Zink, for the appellee.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This suit wag brought in the Macoupin circuit court, by appellee, to recover pecuniary damages for the loss occasioned by the death of her husband, John Maehl, at the mines of appellant, as it was alleged, through the negligence of appellant, and its failure to perform its legal duty in respect of said mines and the operation thereof. A trial resulted in a verdict for plaintiff for $5000. Motion for new trial was overruled, and judgment entered on the verdict. On appeal to the Appellate Court this judgment was affirmed, and the defendant below prosecutes this further appeal.

Four reasons are urged why the judgment should be reversed, which we will notice in the order presented by counsel:

First—That the court erred in giving the first of plaintiff’s instructions. The first criticism of the instruction is, that it tells the jury to find the defendant guilty, if they believe, from the evidence, it violated any of the provisions of the statute “as stated in the declarationand that, as the second, fourth and seventh counts of the declaration did not state the law correctly, or state such facts as would show a legal liability on the part of appellant, the instruction was improperly given. The second count of the declaration alleges the failure of the defendant to keep a competent person at the top and bottom of the shaft, to attend to signals, and that Maehl was killed by reason of defendant’s failure to discharge that duty, while the statute requires, only, that such person be so placed while coal is being hoisted, or within thirty minutes before or after that operation begins and concludes,—the fact proven being, that coal was not being hoisted, and that it was an hour and a half before the hoisting would begin when Maehl was killed. The seventh count proceeds on the same theory.

We are of opinion that the criticism of the instruction in the respect stated is not warranted. It begins: “The court instructs the jury, that the statute of this State makes it the duty of persons and corporations operating coal mines by-shafts and steam power, among other things, first, to provide safe means of hoisting and lowering persons in a cage covered with boiler iron, so as to keep safe, as far as possible, persons descending into and ascending out of such shaft; second, to provide every drum with a sufficient brake, to prevent accident in ease of the giving out of the machinery; third, to furnish a sufficient light at top and bottom of the shaft to insure, as far as possible, the safety of persons getting on or off the cage; and fourth, not to place in charge of any engine whereby men are lowered into or hoisted from the mine, any other than a competent, experienced and sober engineer, not less than eighteen years of age.”

No fault is found with the statement of the requirements of the statute, but, as before seen, it is objected that the jury were referred, generally, to the declaration for the law. A casual reading of the instruction will demonstrate the fallacy of this contention. After stating the duty of persons operating such mines, as before stated, the instruction then tells the jury, that if they believe, from the evidence, that the defendant was operating the mine,, and that Maehl was killed in the manner alleged, that he left plaintiff as his widow, etc., and that Maehl was in the service of defendant, working in said mines, proceeds : “And if the jury believe further, from the evidence, that at the time said Maehl was so killed the defendant then and there willfully refused, or willfully failed, to comply with its duty under the said provisions of the said statute, or willfully violated any of the said provisions of said statute, as stated in said declaration,” and the death of Maehl was caused by reason of such willful refusal or willful neglect, and damage is found from the evidence to have accrued to plaintiff, then they should find defendant guilty,” etc. The instruction is incorrectly given in the abstract, but upon looking at the record it is found that the attention of the jury is alone directed to the provisions of the statute, or requirements of it, stated in the fore part of the same instruction. The statutory obligations were first given, and the jury told that if they believed, from the evidence, that defendants had willfully failed to comply with its duty, or willfully violated said provisions of said statute, as (in the manner) alleged in the declaration, the defendant will be liable, if the other necessary facts concurred. It seems impossible that the jury could have understood this instruction in any other way. It is to be observed that the instruction omits any reference to the statutory duty to keep at the bottom and top of the shaft, while coal is being hoisted, and for thirty minutes before such hoisting is to begin, a competent person to attend to signals, and the jury could not, we think, have understood the instruction as in any way referring to the matters alleged in the second and seventh counts of the declaration. This view becomes more pronounced when we consider that the first witness who testified in respect of the condition of the mine and the injury to Maehl, showed that the injury occurred at a time when no signal-men were required by law to be kept at the shaft, and thereupon the court, on the objection of appellant, refused to permit appellee to prove that no signal-man was on duty, and the record is barren of any evidence on that subject. While the instruction in the form given is not to be commended, we are unable to perceive prejudicial error in the respect indicated.

It is also urged that this instruction is faulty in further stating, that “if the jury further believe, from the evidence, that the plaintiff has been damaged by reason of the loss of the life of the said John Maehl, then the jury will find the defendant guilty, ” and in “estimating said damages the jury may take into consideration that Maehl left surviving him said children, in addition to the plaintiff, his widow.” Whether said Maehl had left children, and plaintiff as his widow, had in a former portion of the instruction been left to the jury, to be found from the evidence. It is-not claimed that the inclusion of the element in respect of the children is erroneous, (Beard et al. v. Sheldon, 113 Ill. 584,) but it is said the jury are thereby left free to award damages for all loss,- not confining it to pecuniary damage. It is conceded that the instruction is not accurate, but it was not intended as an instruction upon the measure of damages, while the next instruction was so intended, and states the rule clearly and correctly. Taking the two instructions, the law was stated with substantial accuracy, and properly limited the recovery to the pecuniary loss sustained by the plaintiff. There was, therefore, no prejudicial error in this regard.

Second—The engineer testified that he had run the engine-connected with the hoisting apparatus at this mine, for two-months prior to the injury of Maehl, and, over appellant’s objection, was permitted to testify to his want of experience and competency at the time of his employment, and to what proficiency he had attained as an engineer in that time. This, it is insisted, was error, and tended to the prejudice of appellant. We think that in so far as it tended to show his capacity at the time of the accident, it was clearly competent. It was for the jury to say, if they found that the injury resulted through the fault or negligence of the engineer, whether he was a competent, experienced and sober engineer, such as appellant was required to place in charge of -its engine used in lowering into or hoisting persons from the mines. His previous training and experience, or want of it, would furnish one means by which a conclusion might be reached. But aside from this, the jury, by their second special finding, expressly found that Maehl’s death was not caused by the negligence of the engineer, and it can not be seen that this evidence, if improper, could have prejudiced appellant.

Third—Appellant requested the submission to the jury of five questions, to be answered by special verdicts. The court gave two of them, but refused the first, second and third thereof, which are as follows:

1. “Was Maehl’s death caused by the willful neglect of defendant to place a man at the bottom of the shaft for the purpose of preventing men from carrying tools or material with "them on the cage ?”

2. “Did the accident by which Maehl was killed, occur more than thirty minutes before the hoisting of coal commenced in the morning of that day, and more than thirty minutes after such hoisting had ceased for the night before ?”

3. “Was Maehl’s death caused by the willful neglect of defendant to place a man at the top of the shaft to attend to •signals ?”

This refusal is assigned for error. We have to some extent anticipated the answer to this contention. It is manifest that the failure of the defendant company to keep a competent person at the top and another at the bottom of the shaft was not insisted upon. The evidence, as already said, tending to prove •a failure in this respect, had been refused admission. The plaintiff, in her instructions, when giving the legal duty of the ■defendant, had, as we have seen, wholly omitted any mention of the duty to so keep persons at the shaft, and we think the court, in the exercise of its discretion, was warranted in holding that the special findings requested and refused were not, “upon any material question or questions of fact,” within the • contemplation of the act in relation to special verdicts.

While the finding of the Appellate Court as to questions of fact is binding and conclusive upon this court, we have, as we may, to determine whether the law has been correctly applied, looked into the facts, and it is, as said by the Appellate Court, apparent “that all other charges in the declaration, except that of defective machinery and want of lights, were practically abandoned during the trial.” We are of opinion that the court did not err in refusing the requests for such special findings.

Fourth—After the case went to the jury, by agreement of the parties, the jury, when they had agreed upon a verdict, were permitted to seal their verdict, and separate, and meet the court on th'e following morning. On the re-assembling of court the jury was present in court and answered to their names, and the sealed verdict was handed to the judge, who, upon opening the same, and finding that the jury had failed to return the special verdicts required, against the objections of appellant, ordered the jury to retire and further consider of their verdict, and to return answers to the three questions submitted for special verdicts. Upon their return into court the court read the general and special verdicts, and polled the jury, each of whom answered “that these were their verdicts.” It is apparent the jury was not discharged. They were to meet the court at the hour of convening on the following morning, and were in attendance. It was, we think, correct practice for the court to require them to again retire and return, a proper verdict, and having done so, to discharge them.

Finding no error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    John Jimison v. Adams County.

      Filed at Springfield

      October 31, 1889.

    1. Statutes—construction—whether retrospective, or prospective only. It is a general rule, that a statute will be construed to be prospective, only, and not retroactive, in its operation, unless it clearly appears that the legislature intended it to have a retrospective effect. In the absence of a clear manifestation of such intent, statutes will be so construed as not to prejudice or affect past transactions.
    2. County supebintendents of schools—compensation. Superintendents of schools do not belong to that class of county officers whose compensation is to be fixed by the county board, as provided in section 10, of article 10, of the constitution. The constitution (section 5, article 8) vests the power of fixing their compensation in the legislature.

      3. Section 27 of the act concerning fees and salaries, in addition to certain commissions, allowed them four dollars per day for such number of days as the county board might fix. Under this law a county board, in 1882, fixed the compensation of such officer at $800 per annum, being four dollars per day for two hundred days in each year of his four years’ term. In 1885, section 20 of the School law was so amended as to give county boards the power to limit the time of superintendents, provided, in certain counties having from seventy-six to one hundred schools, such limit should not be less than two hundred and fifty days: Held, that the amendment in 1885 had no application to superintendents then in office, whose compensation had been previously fixed so as to give them the per diem on fifty additional days in each year.
    4. If the amendatory act of 1885, relating to schools, was intended to increase or diminish the compensation of county superintendents of schools during their terms of office, it would be in that respect unconstitutional, such officer being a municipal officer, within the meaning of section 11, article 9, of the constitution.
    5. If the four dollars per diem should remain the same, yet any statute which will permit the county board to increase or diminish the designated days during the term of office to which such per diem applies, would increase or diminish the compensation of the officer, and therefore be subject to the constitutional prohibition against changing the compensation of county officers during their terms of office.
    Appeal from the Appellate Court for the Third District;—■ heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Messrs. Carter & Govert, and Mr. John H. Williams, for the appellant.
    Mr. Almeron Wheat, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit brought in the Circuit Court of Adams County at the March Term, 1887, by the appellant against the appellee to recover a balance which appellant claims to be due to him for services, as County Superintendent of s Schools. Jury was waived hy agreement, and the case was tried by the Court without a jury. The issues were found in favor of the County of Adams, the defendant below, and judgment was entered accordingly. This is an appeal from the judgment of the Appellate Court affirming such judgment of the Circuit Court.

The plaintiff and defendant below each submitted to the trial court certain written propositions to be held as law in the decision of the case. Those of the plaintiff were marked “refused, ” and those of the defendant, except one, were held to be the law. The questions involved arise upon the exceptions of appellant to the action of the trial court in thus holding and refusing the propositions so submitted.

In November, 1882, appellant was elected County Superintendent of Schools of Adams County for the term of four years, beginning on the first Monday of December, 1882. At the meeting of the Board of Supervisors of Adams County in September, 1882, the Board adopted a report of the committee on finance in the following words: “We, your committee on finance, to whom was referred the matter of fixing salaries of the several County officers for their terms commencing the first Monday in December, A. D. 1882, would recommend that they remain as heretofore established, viz: County Judge.$2000.00 per annum, etc. * * *; Superintendent of Schools $800.00 per annum.” ' In pursuance of this action of the Board, appellant has received, as superintendent of schools, for the four years for which he was elected, the sum of $3333.33, besides the commissions on sales arid monies disbursed as allowed by Section 27 of the Fees and Salaries Act. He has, therefore, been paid more than the annual compensation of $800.00 fixed by the Board of Supervisors.

Appellant claims, that, under an Act of the Legislature, approved June 26, 1885, in force July 1, 1885, amending sections 13, 20 and 71 of the School Law, (3 Starr •& C. Ann. Stat. page 494), he performed certain additional services as such superintendent, between July 1, 1885, and December 1, 1886, for which he is entitled to be paid, in addition to the commissions and the sum of $3333.33 already received by him. It is compensation for such additional services, which he seeks in this suit.

Section 5 of article 8 of the Constitution provides as follows: “There may be a county superintendent of schools in each county, whose -qualifications, powers, duties, compensation, and time and manner of election, and term of office, shall be prescribed by law.” This provision vests the power of fixing the compensation of county superintendents of schools in the legislature of the State. Therefore, such superintendents do not belong to that class of county officers whose compensation is to be fixed by the county board, as provided in section 10 of article 10 of the constitution.

By section 27 of the “Act concerning fees and salaries,” etc., in force July 1, 1872, the legislature provided that county superintendents of schools should have three per cent, commissions on certain sales, two per cent, commissions on certain monies distributed, paid or loaned out, and “for all other duties required by law to be performed by them, for such number of days as may be designated by the county board, in counties of'first and second class, the sum of $4.00 per day,” etc. It is admitted that Adams County is a county of the second class. Said section 27 was in force in September and December, 1882.

It will be noted, that the Board of Supervisors in September, 1882, did not designate a specific number of days for which the superintendent was to be paid, but fixed his salary at $800.00 per annum. But both appellant and the Board seem to have regarded the fixing of the salary at $800.00 per annum as being the same thing as a designation of two hundred days in each year as the time for which the superintendent was to be paid, the statute fixing the per diem at $4.00. Whether this view be correct or not, it is sufficient for the purposes of the present suit, that both the parties to it agree to treat the action of the Board as a designation of two hundred days in each year to be paid for at the statutory rate of $4.00 per day.

Section 20 of the School law, as amended in 1885, provides that “the county superintendent shall visit each school in the county at least once a year; and in the performance of this duty he shall spend at least half the time given to his office, and more if practicable, in visiting ungraded schools. In counties having not more than 100 schools the county board may limit the time of the county superintendent; Provided, that in counties having not more than 50 schools the limit of time shall not be made less than 150 days a year; in counties having from 51 to 75 schools, not less than 200 days a year, and in counties having from 76 to 100 schools, not less than 250 days a year.” ■ It is admitted that there are more than 100 schools in the county of Adams.

Appellant claims, that inasmuch as section 20 as amended only gives the county board the power to limit the time of the superintendent in counties having not more than 100 schools, it has taken away' the power of the Board to fix any limit in counties having more than 100 schools; that the foregoing provision in section 20, as amended in 1885, repeals so much of section 27 of the Fees and Salaries Act as authorizes the county Board to designate the number of days for which superintendents are to be paid, leaving their compensation to be $4.00 per day, in counties of the first and second class, for the number of days they are actually employed where there are more than 100 schools in the county; in other words, that, by the amendment of 1885, the words “for such number of days as may be designated by the county board in counties of first and second class” are eliminated from section 27, so that it should read: “for all other duties required by law to be performed by them, the sum of $4.00 per day.”

If the construction thus contended for he correct, then appellant would be entitled to be paid, during the year and fiv& months of his term after July 1, 1885, the sum of $4.00 per day for each day on which he rendered services as superintendent to the county, and would not be limited to compensation at the rate of $4.00 per day for 200 days in each year.. For example, under the view of the appellant, he might receive-$1200.00, or $4.00 per day for 300 days during the year from July 1/1885, to July 1, 1886, instead of $800.00, or $4.00' per day for 200 days, as fixed by the resolution of the- county board. We regard the position of the appellant upon- this: question as wholly untenable, so far as it relates to the- compensation of the superintendents, who were in office when the amendatory act was passed and whose compensation had been fixed before the passage of that act.

No part of section 20 as amended expressly repeals any part of section 27 of the Fees and Salaries Act. If the one repeals the other, it is by implication only. Eepeals by implication are not favored in the law. The implication is that, because the county board may limit the time of the- superintendents in counties having not more than 100 schools, it may not do so in counties having more than 100 schools. But such repeal by implication, even if it exists, can have no application to the case of this appellant.

It is a general rule that a statute will be construed to be-prospective, and not retroactive, in its operation, unless it-clearly appears that the legislature intended it to- have a retrospective effect. In the absence of a clear manifestation of' such legislative intent, statutes will be so construed as not to> prejudice or affect past transactions. (Thompson v. Alexander, 11 Ill. 54; Conway v. Cable et al. 37 id. 82; Knight v. Begole,. 56 id. 122; In re Tuller, 79 id. 99.). Before appellant went-into office, the county hoard had fixed his compensation for each year of the four years of his term, and he had performed the duties of his office, for the compensation so fixed, for nearly three years before the amendments of 1885 were passed. Under the law as it existed prior to the passage of the amendments, the county of Adams had an arrangement for receiving the services of appellant for four years at $4.00 per day for 200 days of each year. Did the legislature intend, by those amendments, that the county should be charged with a greater sum than that fixed by its board and accepted by appellant ? We think not.

The amendments of 1885 to sections 20 and 71 of the school law were made by the same Act, and approved on the same day to-wit: June 26,1885. Section 71, as amended, provides, that county superintendents “elected hereafter” shall receive, etc., “$4.00 a day for such number of days as shall be spent in the actual performance of their duties, not exceeding the number fixed by the county boards in counties in which the boards are given power to fix the number of days by section 20 of this Act,” etc. Inasmuch as section 71 as thus amended gave $4.00 a day for such number of days as should be spent in the actual performance of their duties to those superintendents only, in counties having more than 100 schools, who should be elected after the passage of the amendments, it will be presumed that the legislature did not intend, by section 20, to give such compensation to superintendents who had been elected in such counties before the passage of the amendments. The reference in section 71 to section 20, as above quoted, indicates that both sections were intended to refer to superintendents to be thereafter elected.

If the amendatory Act of 1885 increases or diminishes the compensation of county superintendents of schools during their terms of office, it is, in that regard, unconstitutional. Section 11 of article 9 of the constitution provides that “the fees, salary or compensation of no municipal officer, who is elected or appointed for a definite term of office, shall be increased or diminished during such term.” In our present constitution counties are recognized as municipal corporations. (Wulff v. Aldrich, 124 Ill. 591). Section 12 of article 9, for instance, uses the following language: “no county, city, township, school district, or other municipal corporation,” etc., and again: “any county, city, school district, or other municipal corporation," etc. It follows, that a county superintendent of schools must he regarded as a municipal officer within the meaning of section 11 of article 9.

Appellant, however, contends that the prohibition of the constitution, when applied to a case like the present, is merely directed against a change in the per diem, and not against a change in the number of days to be designated by the county board, But such a construction cannot be correct. It would give rise to schemes for evading a wholesome provision of the fundamental law. The per diem is merely the rate of compensation ; the compensation itself is the per diem multiplied by the number of days designated. Appellant’s compensation, as fixed,"was not $4.00; it was $4.00 multiplied by 200 for each year of the four years. If the per diem of $4.00 should remain the same, yet any statute which permitted the county hoard to increase or diminish the number of designated days, during the term of office, to which such per diem should be applied, would increase or diminish the compensation of the officer, and therefore, would be subject to the constitutional prohibition above quoted.

We are of the opinion that the amendatory Act of 1885 did not have the effect of so changing section 27 of the Fees and Salaries Act as to authorize appellant to receive any other or different compensation than that fixed by the county hoard.

The j udgment of the Appellate Court is affirmed.

Judgment affirmed.