author: Tuley, J.:

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

    Sperry, et al. vs. Stinson.

    (May 21, 1895.)
    1. Taxes—Right of Mortgagee to Pat. Taxes and assessments are a paramount lien to all others, and a mortgage lien holder, even in the absence of covenant, has the right to pay and discharge such taxes and assessments where the mortgagor fails to do so.

      2. Same—Right to Redeem. A. mortgage lien holder may- redeem from tax sales and buy up tax certificates and tax titles after the time for redemption had expired, paying a reasonable consideration therefor. The amount so paid, with interest, can be recovered in the foreclosure proceedings.
    3. Mortgagee as Purchaser at Tax Sale—Rights of. There is nothing in the mortgage contract which prevents the mortgagee from purchasing the premises at a tax sale. But neither the mortgagor or the mortgagee are allowed to obtain any advantage, the one over the other, by reason of any such purchase, nor will such purchase be allowed to ripen into an adverse title as against the other party, or those in privity with him.
    4. Same—Seven Years’ Payment of Taxes. Nor can payment of taxes by the mortgagee or the mortgagor in possession be relied upon as payment of taxes under color of title under the seven-year Limitation Act.
    5. Same—Payment of Taxes by Mortgagee. The mortgagee has the right to pay taxes and add the amount thereof to the mortgage debt. A purchase at a tax sale is not a payment of taxes, nor is the purchase of a tax certificate a payment of taxes or a redemption.
    6. Same—Rights of Mortgagee Holding Tax Certificate. Where a mortgagee becomes a purchaser at a tax sale he is in the position of any other purchaser with all the incidents and obligations imposed by the statute.
    7. Taxes—Payment of by Tax Purchaser in Succeeding Years.. If a mortgagee holding a tax certificate fails to pay the next year’s taxes and the property is sold, the mortgagor has the right to redeem from the first sale by paying only the amount for which the land was sold.
    8. "Same—Rights of Mortgagors. Where a mortgagee purchases a tax certificate the mortgagor has the right of election, whether the mortgagee shall be considered as a purchaser or-as holding the tax certificate for the benefit of the mortgagor..
    9. Taxes—Sale of Vigintillionth Interest. The sale of a vigintillionth of certain land for the non-payment of taxes is not a. cloud upon the title, and a mortgagee redeeming from such a. sale cannot charge the amount so paid against the mortgagor.. The maxim, de minimus non curat lex, applies.
    10. Tax Sales. The rule of caveat emptor is applicable to tax sales..
    11. Tender. To stop the running of interest in case of a tender,. the tender should be kept good by paying the money into court.
    Exceptions to Masters’ report. Heard before Judge Murray F. Tuley.

      For statement of facts see opinion.

      Price & Stewart, for complainants.

      Prentice & Whitman, for defendants.

       Judgment reversed, 174 Ill. 125.

   Tuley, J.:

The Connecticut Mutual Life Insurance Company held a bond and trust deed security, by way of mortgage made by defendant, Stinson, to Sperry et al., as trustee, to secure a debt of about $15,000. In the trust deed the defendant, Stinson, covenanted to pay the debt at a time therein named, and that “also until full payment as aforesaid will pay all taxes, assessments and other charges; * "::= ® also at once to repay all advances (which are also to be included in the sums hereby secured) made for taxes, assessments, rates, redemption frosales for taxes, assessments, or in. any way otherwise to protect the security hereby given with interest thereon at eight per centum per annum.”

In 1893, Stinson, the mortgagor, failed to pay certain special assessments, levied lipón the ten acres of land mortgaged, and the premises were sold for one assessment on November 4, 1893, of $572.85, and on November 14, 1893, for another assessment of $686.81.

They were bid in, and a tax certificate issued to one William Mills, who was a clerk and acted for D. J. Hamilton, a tax buyer. On the 9th of December, 1893, the two certificates were transferred to the complainant, indorsed in blank in consideration of the face of the certificates and twenty-five per centum additional, making a total sum of $1,574.37, and on December 26,1893, this bill was filed to foreclose the mortgage or trust deed security. Answer having been filed and issue joined, a reference was had to the master to take and state an account of the amount due upon the mortgage. While the matter was pending before the master on an accounting the premises were again offered for sale for taxes, and the east one vigintillionth of the premises sold on October 24, 1894, for $603.33. The purchase was made by the same party, and on the 28th of November, 1894, the certificate issued thereon was transferred in blank to complainant for $754.16, being the face of the certificate and twenty-five per centum additional penalty.

These tax certificates were produced by complainant upon the accounting, and allowed against the' defendant for the amount paid by complainant to the tax buyer, together with interest at eight per centum per annum from the time of such payment. The defendant objected to the master allowing complainant the $1,574.37 paid on the first sale, and produced a certificate of redemption of the county clerk, dated November 16, 1894, showing that the defendant had deposited in redemption from such sale the amount of the sale without any penalty, and which, by the revenue law of this state, is declared to be a sufficient redemption in a case where the land is permitted by the tax buyer or the party holding the certificate to be again sold within two years. The evidence taken before the master disclosed the fact that the mortgagee had an arrangement with the tax buyer, by which the latter was to bid in all the property in which the mortgagee was interested, a list of the same being furnished, and the mortgagee was to take the tax certificates from the tax buyer by paying the amount paid at the sale with the accrued penalties; the tax buyer was also to be guaranteed from loss by reason of any such purchase. This arrangement was unknown to the mortgagor.

On the 6th day of December, upon the hearing before the master, the defendant tendered to the attorney of the mortgagee, the sum of $16,972.75 in full of all claims under the mortgage. It is not claimed that if the amounts paid by the mortgagee for tax certificates in 1893 and 1894 are excluded from the computation, that the tender made at that time was not sufficient, so that upon the exceptions the only questions are, as to the right of the mortgagee to be allowed for moneys claimed by him to have been paid for the certificates of purchase, and as to the effect of the tender.

Taxes and assessments are a paramount lien to all others, and a mortgage lien holder independent of any covenants in the mortgage has the right, the mortgagor failing to do so, to pay and discharge such taxes and assessments. He may also redeem from tax sales and buy up tax certificates after the time for redemption has expired, and also tax titles, paying therefor a reasonable consideration. The amount so paid with interest can be recovered in the foreclosure proceedings. Jones, Mortgages, sec. 358; Wright v. Langley, 36 Ill. 381; Pratt v. Pratt, 96 Ill. 184; Windett v. Union Mut. Life Ins. Co., 144 U. S. 581.

Upon an examination of the foregoing cited authorities it will be seen that as to the questions involved, the express covenants of the mortgagor give no additional power to the mortgagee beyond what it would have had, had no such covenants existed.

• There can be no question but that a mortgagee may, if he choose so to do, become the purchaser of the mortgaged premises at a tax sale. There is nothing in the mortgage contract which raises an express trust relation between the parties, trust relations being only implied under certain circumstances by a court of equity in order to carry out the real contract between the parties. And a purchase by a mortgagee at a tax sale as against all the world, except the mortgagor and those in privity with him, may ripen into a paramount title and cut off all other interests. But the mortgagor and the mortgagee, as to their dealings with each other, or with the mortgaged property, the law requires, that the same should be open and fair and in good faith; neither the mortgagor nor the mortgagee will be allowed to obtain any advantage, the one over the other by reason of any purchase at a sale of the mortgaged premises for taxes, nor will such purchase be allowed to ripen into an adverse title as against the other party, or those in privity with him. Moore v. Tiltman, 44 Ill. 367; McAlpine v. Zitzer, 119 Ill. 273.

Nor can payment of taxes by the mortgagee or the mortgagor in possession be relied upon as payment of taxes under color of title under our seven years limitation act. Chickering v. Failes, 26 Ill. 508; McAlpine v. Zitzer, 119 Ill. 273.

The mortgagee in this ease could have pursued a plain and straightforward course by paying the taxes and have added the sum, together with eight per centum interest to his mortgage debt, or he could have redeemed from any tax sale. He might, under the arrangement made with the tax buyer, be considered the actual purchaser, for equity regards the substance, not the form of the transaction, but a purchase at a tax sale is not a payment of the taxes, nor is the purchase of a tax certificate either a payment of taxes, or a redemption. Whether the mortgagee is to be regarded as a purchaser at the tax sale, or as the assignee in blank of the tax certificates he occupied the position of a tax purchaser with all its incidents and obligations imposed by the statute concerning sales for taxes.

The mortgagee holding the tax certificates was bound to pay the next year’s taxes, but failing to do so, and the property being again sold for taxes, the statute gave the mortgagor the right to redeem from the first sale by paying only the amount for which the land was sold. The mortgagor in so doing exercises only a statutory right, and there is nothing in the mortgage relation or in the provisions of the mortgage which would prevent his doing so.

If the mortgagee chose to occupy the position of a tax sale purchaser, or the holder of tax sale certificates, indorsed in blank, which could be transferred at any moment to an innocent purchaser, he can not complain if the mortgagor exercises his legal right and makes redemption under the statute. It was as easy to the mortgagee to have exercised the plain right given him by the mortgage of paying these taxes as for him to become a purchaser directly or indirectly. See Williams v. Townsend, 31 N. Y. 411; Maxfield v. Willey, 46 Mich. 252, 9 N. W. 271; Jones v. Wells, 31 Mich. 170.

The evidence shows that the mortgagee took up the tax certificate from the tax purchaser after being notified by the mortgagor not to do so, but as has been said as to the other two certificates, whether he is to be treated as a purchaser at the tax sale, or as a purchaser of the tax certificates after the sale, is immaterial as in either case, he 'occupies the position of a tax purchaser and with all the rights of a tax purchaser, and" all the incidents attaching to the purchase. The right to say whether he shall be considered as purchasing or holding the tax certificate for the benefit of the mortgagor, is a personal right of the mortgagor. Jones v. Wells, 31 Mich. 170; Maxfield v. Willey, 46 Mich. 252, 9 N. W. 271.

The mortgagor not objecting, the mortgagee may, as tax purchaser, obtain a paramount title, certainly as against all parties who do not claim by or under the mortgagor. The mortgagor has the right to say to the mortgagee on his becoming a tax purchaser, “You have chosen in place of paying the tax, or redeeming from the tax sale, to occupy the position of holder of a tax certificate, and I make no objection thereto; whether your purchase shall be considered as made for my benefit is my personal right, and I do not desire to claim it. ’ ’

The contention of the mortgagee is, that the vigintillionth certificate was purchased in order to remove a cloud upon the property, and that by the express language of the mortgage, the mortgagee has a right to advance moneys necessary to remove clouds upon the title. But was this any cloud upon the title to the mortgaged premises, which it was necessary for the mortgagee to remove? It would seem clear that if ejectment would not lie for a vigintillionth of this land, that it would not be considered a cloud. In ejectment the thing sought to be recovered must be visible, a tangible something, which, in early times, would be capable of livery of seizin, and upon which an entry could be made; something capable of physical possession,. and of which the owner could be dis-seized, and of which possession can be delivered by the sheriff to the plaintiff. Tyler on Ejectment and Adverse Possession, p. 37; Sedgwick & Wait, Trial of Title to Land, sec. 97.

The mind is scarcely capable of comprehending what an east vigintillionth of a ten acre tract of land would be. It certainly would not be visible to the naked eye; it would not be equal to a line drawn by the finest pointed needle ever made. Its width would be a line so fine that the most powerful magnifying glass'ever made could not discover it; it would be utterly incapable of physical possession. A writ commanding the sheriff to put a tax title buyer in possession of a vigintillionth off the east side of this tract of land, would not only be incapable of execution, but would be an absurdity upon its face. The law does not regard infinitesimals, and the maxim—de minimis non curat lex would be applicable in any case where this vigintillionth was involved.

A vigintillionth: 1-1,000,000,000,000,000,000,000,000,000,000,-000,000,000,000,000,000,000,000,000,000,000,000th.

No principle can be discovered upon which the doctrine of subrogation can be applied in this case,

The rule of caveat emptor, let the purchaser beware, is peculiarly applicable to buyers at tax sales. Having made his contract, what right has he because it is a bad bargain, to ask to be subrogated to the lien of the state as to the whole land for the amount of taxes paid? The court knows of no principle of equity which would entitle him to any relief from his contract.

If one having a chattel mortgage upon a thousand barrels of flour, finds it levied on and advertised for sale on a prior judgment against the mortgagor, say for $1,000, attends the sale, and because of foolish competition, bids on one barrel of flour the thousand dollars due on the judgment, what right of equity would there be in his claimng to be subrogated to the judgment creditor’s lien against the other 999 barrels of flour, which was discharged by the sale of the one barrel. A court of equity would say to him, as must be said to the mortgagee in this ease: “You must stand the consequences of your, own improvidence or folly.” The defendant’s exceptions as to the allowance by the master of the amounts paid for the three certificates of purchase must be sustained.

The defendant’s exceptions as to the three assessments and tax certificates being sustained, it follows that the tender made by the defendant on the hearing before the master was sufficient, but, in order to stop the running of interest, the tender should have been kept good by paying the money into court. The only effect that can be given the tender will be to charge the complainant with all the. costs accruing subsequent to the tender.

Counsel may be able to agree as to amount of such costs; ' if not, the court will determine.

Let an order be prepared in accordance with this opinion, but let it provide that complainant have leave to withdraw the tax certificates.

Note.—In Petty v. Beers (Appellate Court, 1st District, 1906), it was held that a deed purporting to convey one vigintillionth part of a tract of land is a nullity, and conveys no title.


source: Caselaw Access Project

author: Tuley, J.

license: Public Domain

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

    Franz Fahrig vs. Milwaukee & Chicago Breweries (Limited), et al.
    (March 1, 1905.)
    1. Corporations—Right of Stockholder to Examine Books of Subsidiary Corporation. Where an English corporation owns the entire stock of an American corporation, and does no other business of any kind except to own such stock, a stockholder in the English corporation is entitled to examine the books of the American corporation, and is not obliged to resort to the English courts for relief.
    2. Same—Right of English Company to Own Entire Stock of American Corporation. Whether it is lawful for an English company to own the entire stock, of an American corporation, quaere.

      3. Same)—Laches. But where a stockholder takes no action to protect his rights for over four years, and no sufficient reason appears why he did not do so, he is guilty of laches.
    •Demurrer to amended bill. Gen. No. 194,198. Heard before Judge Murray F, Tuley.
    For statement of facts see Fahrig v. Milwaukee & Chicago Breweries, 113 Ill. App. 525, a decision upon a previous appeal.

      C. W. Greenfield and Nicholas Micheles, for complainant.

      S. H. Strawn of Winston, Payne & Strawn and H. T. Gilbert , for defendants.
   Tuley, J.

(orally):

Gentlemen, this is an anomalous case, treading on unknown ground and raising new questions as to the jurisdiction and powers of a court of equity.

Here is a corporation, organized in London, England, for the sole and simple purpose, and carried on for the sole and simple purpose of holding the stock of a United States corporation. It does no business itself, it carries on no business; it simply holds the stock of the American Company. It gets reports from the American Company and takes action on those reports and that is all that it does.

The subs&ince of the whole transaction is the business carried on by the American corporation; the English corporation is a mere shadow. It is a book-keeping corporation and that only, not a business corporation.

Certificates are issued which show that the stockholders are entitled to shares of stock in the American corporation. This complainant does not get that—

Mb. Strawn: I beg your Honor’s pardon, I think that certificate means the English corporation’s stock.

The Court: And that share of stock in the English corporation represents a share of stock in the American corporation. He is entitled to a share of stock in the English corporation representing a share of stock in the American corporation.

He applies to the English corporation for an examination of the books. They respond, “why, all the boobs pertaining to your interests are the books of the American corporation. We haven’t got them; they are in America. We can not let you examine them; we have no authority to let you examine them.” Then he applies to the American corporation and they say, “Why, we can’t let you examine the books, we are responsible to the English corporation alone.”

Great frauds are alleged in the carrying on of the American corporation; the expenditure of millions of money wrongfully and fraudulently. What remedy has the holder of a share of stock in this English corporation? The property is in this country, the book-keeping part is in England and that is all there is of it. Is he to go to England and prosecute a suit there, or is he to attack the substance in this country, ■and prosecute it here? That is the question presented. Equity regards the substance, not the form of a transaction. The substance of this transaction is an association of brewers, carried on by this American corporation. This stockholder will never get a dollar, except he gets it through the workings of the American association.

"Why should he be driven to England to fight a book-keeping corporation? The property is in this country. It may not be against public policy that an English corporation should hold the entire stock of an American corporation, but I am rather inclined to think it is. I will not pass on that question. But there must be a remedy here for the English stockholder, and I see no other way except for him to pursue his remedy (if any he has) against the American corporation. When he obtains it, why, the American corporation can make its report as usual to the English corporation; there is nothing to prevent that, and that is all they want.

Mr. Strawn : Didn’t he take it with notice that he was a stockholder in the English corporation?

The Court: He takes it with notice that he is a stockholder in an English corporation that owns the stock of an American corporation, and that represents his stock.' Ho takes it with notice that the English corporation is a mere book-keeper of the transaction and that the substance is in this country.

The difficulty I find is that there are insufficient allegations in this bill as to the time that this stockholder obtained notice of these different fraudulent transactions; it is not clearly set forth. Time is an important matter here, and the time is a considerable length of time, some nine years or four years at least in which he took no action, and no sufficient reason appears, if he had notice, why he did not proceed to act.

I think you will have to amend your bill and set out some •further excuse for the apparent laches in pursuing your remedy. I do not feel disposed to drive this party out of court if he has a right to come in, and to send him over to England to litigate there against a shadow, when the substance is in this country.

Demurrer sustained, and leave to file amended bill.

Note.—A second amended Mil was thereafter filed on April 1, 1905.


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

    Vanderpoel, et al. vs. The West and South Towns Street Railway Company.

    (March, 1894.)
    1. Street Railroads—Frontage Consents. Under the act of March 30, 1887, it is necessary to the validity of a grant of the city council to a street railroad of the right to use the streets that the petition upon which the council acts shows the consent of a majority of the owners of all private property in each mile and any fraction thereof petitioning for the construction of the road, if the petition shows such majority the action of the city council cannot he attacked except for fraud.
    2. Injunction—Construction of Railroad. A property owner cannot maintain a bill to restrain the construction of a railway track in a public street. The injury is to the public and a private individual cannot file a bill on behalf of the public.
    3. Same—Unauthorized Construction. Even though the railroad' is being laid without valid municipal authority or ordinance, a property owner cannot maintain a bill for an injunction. It must be left to the municipal authorities to remedy the wrong.
    4. Same—Effect of Frontage Law. The frontage law was intended, however, to provide a remedy for the property owner where there is an unauthorized invasion of a street by a railroad company.
    5. Same—Majority Consent. But this remedy cannot be availed of where the majority of the frontage of the mile in which the complainant's property is located petitions for the laying of the railroad. This is true even though the ordinance is otherwise invalid.
    6. Damages—Bond. Where the question is solely one of damages, or the right of complainant is not clear, the court may deny an injunction and require the defendant to give bond to secure the complainant against loss or damage.
    7. Frontage Consents—Property of Steam Railroad Not Considered. In determining whether a majority of the abutting owners have consented to the laying of a street railroad, the frontage occupied by a steam railroad abutting on such street should not be taken into consideration in determining the total frontage, as steam railroads are considered as public highways.
    8. Motive of Complainants. The court will consider the motives of complainants where there is evidence that the litigation is not being prosecuted in good faith and for the protection of complainants’ rights, and the complainants withhold information which would enable the court to pass upon the charge. Under such circumstances where complainants’ rights are otherwise doubtful, an injunction will be denied.

    '9. Laches. A bill will not lie to restrain the construction of a street railway where the complainant delayed until a considerable portion of such railway had been constructed.
    10. Same—Knowledge of Ordinance. Such laches is not excused because the complainant did not know of the invalidity of the ordinance. The complainant is chargeable with notice of any defects, in the petition of the property owners, the proceedings of the city council, or the city ordinance, which are apparent on the face thereof.
    Motion to dissolve injunction. Heard before Judge Murray F. Tuley.
    For statement of facts see opinion.
    W. P. Black, G. D. F. Smith and Thomas'A. Moran, for complainants.

      Peck, Miller & Starr, for West and South Town Street Railway Co.

      William S. Johnson, assistant corporation counsel, for city of Chicago.

       The above case was cited with approval in the following cases: Tibbetts v. Railway Company, 54 Ill. App. 188; Stewart v. Railway Company, 58 Ill. App. 461, 462.

       See also Taylor v. Pullman Company, 1 Ill. C. C. 24, and note.—Ed.

   Tuley, J.:

Motion to dissolve injunction upon the defendant giving bond and security to pay all damages sustained by the complainants.-

On the 8th of February, 1892, the city council of Chicago passed an ordinance granting the corporation known as the West and South Towns Street Railway Company a right to construct a single or double track railway in West Twenty-second street for a distance of about five miles. The company entered upon the construction of its road, and at the time of the filing of this bill had constructed about five miles, of track. The charter of the city of Chicago was amended, by the act of March 30, 1887, and provides that the city council shall have no power to grant the right to lay down any railroad tracks in any street of the city to any steam, dummy, electric, cable, horse or other railroad company except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as, is sought to be used for railroad purposes, and when the street or part thereof sought to be used shall be more than one mile in extent, no petition of land "owners shall be valid unless the same shall be signed by the owners, of the land rep7 resenting more than one-half of the frontage of each mile and of the fraction of a mile, if any, in excess of the whole miles, measuring from the initial point" named in such petition of such street or of the part thereof sought to be used for railroad purposes.

One of the complainants owned 100 feet of frontage and' the other 75, upon West Twenty-second street, and filed this bill for an injunction against the construction of the road. The injunction was recommended upon hearing before the master and has been twice before this court and the action of the master sustained. There is much new evidence produced on this motion on the part of the defendant, and the' case is presented in a different aspect from what it heretofore has been.

The ordinance of the city council is attacked, as illegal,, upon the ground, among others, that the city council did not have, prior to the passage of the ordinance, a petition for the occupation of the street by the railroad company signed by the owners of land representing more than one-half of the frontage of each mile, and of the fraction of a mile, of said Twenty-second street, measuring from the initial point named in the petition upon which the council professed to act, and attacks particularly the frontage of the mile in which complainant’s property is situated and commencing with the west line of May street, that mile being the second mile of the line of road under the city ordinance as passed. The evidence-tends to show that in the first mile counting from the initial point, to-wit: Portland avenue named in the petition which was before the council, there was upon the face of the petition a shortage of several hundred feet.t

In the second mile, the initial point being Portland avenue, there was on the face of the petition a shortage, unless in counting the frontage about 2,700 feet on the north side of Twenty-second street occupied by the Chicago, Burlington and Quincy railroad with its tracks should be excluded. In the remainder of the route there was on the face of the petition an apparent majority of the frontage signed for each •mile. The ordinance as actually passed by the council, made Grove street about 1,100 feet west of Portland avenue the starting point.

With Grove street as the initial or starting point there was a shortage on the face of the petition in the first mile, and as to the second mile on which complainant’s property is situated, there was also a shortage on the face of the petition, but excluding the 2,700 feet and treating the engine lot of 35 feet belonging to the city, as being private property, there was a majority of a few feet of frontage in that mile in favor of the railroad. It is insisted by the defendant that the city council was to judge of the sufficiency of the petition, and it having found that there was a sufficient frontage signed, its action is conclusive upon all persons.

I am clearly of the opinion that it is absolutely necessary to give validity to the grant of the city council to the railroad company that the petitions upon which the council acts must show a majority of all private property in each mile and fraction thereof petitioning for the construction of the railroad. If a petition on its face shows such majority, the decision of the council as to the frontage and its ordinance granting the franchise, cannot be attacked except for fraud.

It would be competent to show forgery or unauthorized signature to the petition, or other fraud tending to vitiate the petition and all action had thereon. Whether a bill for an injunction in such case would be the proper proceeding it is not necessary to decide. But, admitting this ordinance might be held invalid for the want of a sufficient petition or for fraud in connection therewith, in a proper proceeding by the proper party, there is a farther question in his question, which is: Can these petitioners maintain this bill for an injunction ?

The control of the streets and alleys of the city is vested in the city council for the public interest and also it is the council’s duty to protect owners of lots fronting on the streets and alleys in the enjoyment of their rights, incident to such frontage, but if the council fail in this duty, under what circumstances can such frontage owners have a standing in a court of equity for,an injunction to protect them against an unauthorized invasion of the streets by the railroad company ? A lot owner cannot file a bill on behalf of the public; such a bill must be brought by the city or' the attorney-general. And could he before the passage of this frontage law, file such a bill on his behalf?

The Moses case in the 21st Illinois (Moses v. P. F. W. & C. R. Co., 21 Ill. 516), and the Stetson case in the 75th Illinois (Stetson v. C. & E. R. Co., 75 Ill. 74) are leading cases to the effect that no property owner can maintain a bill for an injunction as to the laying of a railroad track in a street where the same is authorized by the state and municipal authorities. The theory of the decisions being that the railroad is only an additional method of using the public streets, and that the injury to the property owner is only such as is suffered by the public at large; in other words, that he sustains no special damage, and therefore cannot bring a bill for an injunction. Chicago v. Union B. Association, 102 Ill. 379; Peoria & R. I. R. Co. v. Schertz, 84 Ill. 135.

If, however, the railroad is being laid without valid municipal authority or ordinance, could a property owner maintain a bill for an injunction before the passage of the frontage law referred to ?

Patterson v. C., D. & V. R. R., 75 Ill. 588, is a decision to the effect that he could not, but that where there has been an unauthorized invasion of the street under a pretended ordinance, it must be left to the municipal authorities to remedy the wrong, and that the private owners cannot maintain an injunction therefor, but must be left to their remedy at law. The frontage law, however, was intended to give the property owner some protection and some standing in court for an unauthorized invasion of a street by a railroad company.

It limits the power of the city to act, and declares in effect that there shall be no railroad laid down in the street if the property owners owning the majority of the frontage in any one mile or fraction thereof, shall refuse to petition therefor. It recognizes a right in the street appurtenant and incident to the ownership of property fronting the street, but what of the extent of that right?

The question here is: Has a property owner any right to object if the majority of the frontage of the mile in which his property is located petitions for the laying of the railroad, or, in other words, can he in such case sustain a bill for an injunction, even though the ordinance passed by the council may be invalid ? I apprehend not. So far as he is concerned, when the majority of his mile petitions, he stands just where he did before the passage of the frontage act, and that is on the authority of the Patterson case, without the right to ask in his own suit the aid of an injunction. Truesdale v. Peoria Grape Sugar Co., 101 Ill. 561.

The motion here is that the defendant be allowed to give bond to secure complainants in their damages.

I understand it to be a common practice to take such bonds in eases where there is only the question of damages, and in all cases where the laying of the railroad tracks is unauthorized, and the right- of the complainant to maintain his bill is clear and beyond the question the court will not balance the damages, or the convenience and inconvenience of -the parties as to granting or withholding an injunction, but if the right of the complainant is not clear the court may do so. The protection of private property and private interests against unauthorized encroachment is absolutely necessary for the maintenance of civilized society, and no one is more tenacious of doing so than I am.

But in this case I have grave doubts as to the right of the complainants to maintain this bill for an injunction. This doubt arises upon the question whether the 2,700 feet of frontage occupied by the Chicago, Burlington and Quincy Railroad (on this motion for the first time brought to the notice of the court) should be considered as mutual property, like street intersections, and not counted in making up the amount of private frontage on the street. The design of the law was to protect private property, and excluding this 2,700 feet, there was a clear majority of the frontage (counting from the initial point named in the petition) in the mile in which complainant’s property is situated, petitioning for this railroad to be laid in the street. If there was such a majority, I am of the opinion that complainants have no standing for an injunction.

The constitution declares all steam railroads to be public highways. We have then 2,700 feet of a railroad adjoining the street highway.. The object and intent of the frontage law was not to protect one railroad against another and competing one. It is said, however, that the Chicago, Burlington and Quincy right of way is only a public highway for railroad purposes, but it may be fenced, and no owner of adjoining property can step upon it without being guilty of a trespass. Why should then the consent of such owner be necessary as to the use of Twenty-second street, which he cannot reach without committing trespass on the Chicago, Burlington and Quincy railroad highway? The protection-of property so located is not within the reason or purpose of the law, and what is not within the reason of the law, should', be held to be not within the law.

There is also another consideration which has moved the; court in considering the motion of the defendant, and that is,, the grave doubt arising upon the evidence submitted, whether or not this bill is prosecuted in good faith, and for the protection of complainant’s rights. There is also evidence tending to show that this is being prosecuted for speculative purposes.

There is an affidavit of E. F. Cullerton, to the effect that the complainant, Brundage, told him that he and the other-complainants were going to see Mr. Black, the solicitor, about putting up a bond in his case, and wished his (Cullerton’s) advice; that he knew he was being used by Terkes, an officer and stockholder in the West Chicago Street Railway Company; that he wanted to be certain that he was not going to lose anything, or his property, in the deal; that he (Cullerton) told Brundage that it would be “landed against him” (Brundage); that he had been used by Terkes to defeat this improvement (meaning the laying of the street railway in Twenty-second street) and that “you,” meaning Brundage, are a “sucker unless you get paid for it.” That Brundage replied “that is what I wanted to talk to you about,” that, thereupon, he (Cullerton) told Brundage to make him (Terkes) pay $5,000, but that probably the solicitor representing the company would “cut you down to $2,500;” that Brundage replied, “Now, I am glad I had this talk with you, and I am going right over there and make just such arrangements as that, or else they don’t use me or my property.” Cullerton also swears that Brundage said his son had got him into the litigation, and that his son had been paid $50 by a certain party to so influence his father. Brundage de-' nies the latter allegation quite positively, but he does not attempt a specific denial of the words Cullerton swears to his having used.

He makes a denial in general terns of Cullerton’s affidavit, but admits that Cullerton did suggest to him that he ought to make Terkes pay $5,000 for making this fight and that he, Brundage, replied, “that if Terkes was behind the suit, he was a good man to have behind it;” that he has an impression that he, Brundage, said further, laughingly, that “if the said Terkes was backing the suit, that he was a good man to pull, and affiant would pull him for all he was worth.”

The affidavit of Charles L. Bonney alleges that when Bonney charged Terkes with being behind the institution and prosecution of this suit, Terkes did not deny the same, but replied: “Certainly that meets with my approval.” But the affidavit of Terkes is a full and complete denial of Bonney’s affidavit. There are other affidavits to the effect that both of these complainants had stated that this suit was not costing them a cent. They deny having so stated and allege that they are prosecuting the suit in their own interests, but with assistance rendered by other property owners. They fail to give the names of such other property owners or to give any details as to the number of such persons or the extent of their contributions.

In the face of the attack made upon the good faith of these complainants in the prosecution of this suit, and charging in substance that they are not the real parties in interest, their showing is not satisfactory. When a party seeking the aid of this court suppresses or conceals or withholds information which would enable the court to pass upon the merits of so grave a charge, he cannot complain if the court, in the exercise of its discretion, denies him the use of the prohibitive writ of injunction to protect his alleged rights. Upon the grounds that there are grave doubts as to the rights of these complainants to maintain a bill for an injunction for the reasons hereinbefore specified, and because the proof tends to show that the complainants are prosecuting this suit for other purposes than the protection of their own property rights the court will grant defendant’s motion.

I wish also to state that I am inclined to the opinion that the laches of complainants in filing this bill is also a sufficient ground for the granting of this motion. They knew of the progress of this work, and laid by until nearly five miles of track was laid, about 1,100 feet of which was in the mile in which complainant’s property is situated, before they filed this bill. It is true that they swear they did not know of the invalidity of the ordinance and that on a former motion to dissolve where the evidence there submitted shows defendant to be a mere trespasser, I held that such want of knowledge excused the complainant’s laches. Upon reflection, however, I am now of the opinion that they must be charged with notice of informality or defects in the petition of the property owners, the proceedings of the city council and the city ordinance, which may be apparent upon the face thereof.

The city of Chicago also now comes into court and moves this court that the motion of the defendant street railway company be granted. A bond with sufficient security will protect complainants against actual loss, and under the circumstances, I am convinced that it is the duty of this court upon the defendant railroad company entering into bond with security to be approved by the court in the sum of $25,000' to pay the complainants and each of them all damages that they may respectively suffer by reason of the construction or operation of this railroad track, to dissolve the injunction.

An order may also be prepared to that effect, and the order may also provide for setting aside the reference to the master heretofore entered, at defendant’s cost, however, the order to avoid any question as to the matter being in the control of the court. A re-reference to the master can be had hereafter if desired.


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

    People ex rel. Lindauer vs. Prendergast.
    (December 15, 1888.)
    1. County Court Not Inferior Court. The county court as to the-subject matters committed to its charge by the constitution and general assembly is not an “inferior court” in the technical sense in which that term is used.
    2. Prohibition Against County Court. The county court is not. such an “inferior court” as a court to which the circuit court could issue its writ of prohibition.
    3. Prohibition—Matter of Doubt. Where the court has any doubt whatever as to its own jurisdiction over the county court that is sufficient cause of itself for the denial of the writ of prohibition.
    4. Prohibition'—Appeals from County Court. The fact that the appellate court has appellate jurisdiction over the county court, while the appellate jurisdiction of the circuit court over the county court is doubtful, is a sufficient reason for refusing the writ of prohibition.

      5. Prohibition—Effect of Right of Appeal. In a ease where the right of appeal or writ of error exists, the writ of prohibition is not a writ of right ex debito justitiae, but it issues ex gratia resting in the sound legal discretion of the court and depending upon the circumstances of each particular case.
    6. Prohibition—When Writ Issues. The writ of prohibition should never issue except in a clear case of usurpation of jurisdiction, and then only in case of extreme necessity.
    Petition for a writ of prohibition. Circuit court of Cook county, Gen. No. 69976. Heard before Judges Murray P. Tuley and Oliver H. Horton, en banc.

    Statement of facts.
    This is a petition filed on December 3, 1888, for a writ of prohibition directed against the Hon. Richard Prendergast, county judge of Cook county to restrain him from proceeding with the case of In re Lindauer Bros. & Co., debtors in voluntary assignment, then pending before him, on the ground that as county judge he had no jurisdiction to proceed in the matters pending in the case, in view of the decisions of the appellate courts of this state in reference to the jurisdiction of the county court in such matters, and also on the ground that no appeal would lie from purely administrative orders in parceling out the estate of the assignors, and that an appeal could be taken only from final orders. The petition was verified and accompanied by a copy of the record of the proceedings of the county court. Thereupon the court granted a rule against Richard Prendergast as county judge to show cause why the writ of prohibition should not issue.
    An answer to this petition was filed on December 4, 1888, setting up that the county court was not an inferior court to the circuit court, and that an appeal would lie to the appellate court from an erroneous order of the county court, and also setting up the merits of the case solely in reply to the statement of merits alleged by the answer to be wrongfully inserted in the petition on the ground that the court in this proceeding was not concerned with the merits, but solely with the question of jurisdiction.
    On December 8,1888, the plaintiffs filed a supplemental petition setting up further proceedings before the county judge. and an answer to this supplemental petition was filed on December 11, 1888.

      Moses '& Newman, for petitioner.

      Kraus, Mayer & Stein, for respondent.
   Tuley, J.:

The court will not attempt a review of the many authorities or any discussion of the questions involved, but will merely announce its conclusions upon some of the points which will be sufficient, however, to dispose of this litigation. The conclusions arrived at, I am authorized to state, are fully concurred in by my brother Horton, who has also heard this case argued.

First. The court is inclined to the opinion that the county court as to the subject matters committed to its charge by the constitution and the general assembly, in pursuance thereof, is not an “inferior court,” in the technical sense in which that term is used, as a court to which the circuit court could issue its writ of prohibition. See: Constitution 1870, sec. 1, art. 6; Propst v. Meadows, 13 Ill. 157, approved in Barnett v. Wolf, 70 Ill. 76, and Bostwick v. Skinner, 80 Ill. 147. The subject matter of the voluntary assignment made for the benefit of creditor or creditors, is one of the subject matters committed to the exclusive jurisdiction of the county court. Rev. Stat., chap. 72.

The phrase “inclined to the opinion” is used. For this court to have any doubt whatever as to its own jurisdiction over the county court in the matter at bar, is sufficient cause of itself for the court to deny the writ.

Second. The general assembly, by the act of 1887, has given the appellate court appellate jurisdiction over the county court, while the appellate jurisdiction of the circuit court over the county court is at least doubtful. I am of the opinion that in the exercise of a sound legal discretion, that fact is a sufficient reason for refusing the writ of prohibition.

Third. Even if the jurisdiction of this court to issue the writ to the county court in the case at bar was clear and undoubted, yet I am of the opinion that this is another good and sufficient reason why it should not issue.

Under the authorities cited, I am satisfied that in a case where there exists the right of appeal or writ of error, as here, the writ of prohibition is not a writ of right ex debito justitiae, but that it issues ex gratia, resting in the sound legal discretion of the court and depending upon the circumstances of each particular case. It should never issue except in a clear case of usurpation of jurisdiction, and then only in case of extreme necessity.

The fact that the parties involved in this controversy have voluntarily placed themselves and the property in dispute within the jurisdiction of this court (upon the chancery side thereof), and this court having ample power to protect the same against any usurpation of power or jurisdiction of the county court, if any there should be, is of itself sufficient reason, in the -exercise of a sound legal discretion, to refuse the granting of the writ of prohibition. In other words,—no extreme necessity exists which would justify the issuance of the writ.

Fourth. Lastly,—this court cannot assume that on hearing all the evidence and fully investigating the facts, the county court, in the matter there depending, will hold that there has been a voluntary assignment which authorizes it to proceed to final judgment, but if it does, it is to be expected that the two courts will take such steps as .may be necessary to conserve this large property for the benefit of those entitled to it, and as will prevent any conflict between the two courts. Also that some arrangement can be made by which the question of jurisdiction as between the courts (if any arises) may be determined by the supreme court of the state at the earliest possible moment.

The rule to show cause will be discharged at the costs of the relator.