text:
    William Compher et al., Appellants, v. The People, Appellees.
    APPEAL PROM TAZEWELL.
    By demurring to a plea which refers to various statutes, only such facts are admitted as are well pleaded, the construction given to such statutes is not thereby admitted to he correct.
    A bond conditioned that A. B. shall perform all the duties required to be performed by Mm, as collector of a county, in the time and manner prescribed by law, requires that he shall perform all the duties properly appertaining to his office, and that shall from time to time be required of Mm while in office.
    Parties who go surety upon official bonds of tMs character, must be supposed to do so, with a knowledge and expectation that the revenue laws will be changed, and they have no right to complain, if the duties of their principal are not materially varied, and are of a character properly-appertaining to the office.
    This was an action brought on a bond executed by Compher, as collector of Peoria county. The other defendants were his sureties. The bond was executed on the 24th of Sept., 1849, and is in the usual form. The defendants pleaded, first: that on the sixth of Nov., A. D. 1849, the General Assembly of the State, without the consent of the defendants, changed the time for the rendition of judgment against delinquent tax payers. Second: That at the time the bond was executed, it was by law, the duty of the collector, and he was authorized and empowered to distrain for taxes and revenue, due the State on the first day of Feb., 1850, and that on the sixth day of Nov., 1849, and after the execution of the bond, the General Assembly, without the consent of these defendants, by law, prohibited the said collector from distraining and collecting said taxes and revenue until the first day of March thereafter. Third; That on the sixth of Nov., 1849, the Legislature, without the consent of the defendants, changed the time, when the said collector, by the law in force at the time of the execution of the bond, was bound to settle with the Auditor, and fixed the same on the first day of July, A. D. 1850. Fourth: That on the sixth of Nov., 1849, the Legislature, without the consent of the defendants, changed the law under which they executed the bond, so as to require them to pay interest from and after the first day of July, A. D. 1850. Fifth: That the laws under which the contract was made have been repealed. Sixth: That by the several laws in force at the time of the execution of the said writing obligatory, the said collector was duly authorized to proceed to collect, by distress, the revenue for the year 1849, on the first day of Eeb., 1850; that in the laws also then in force, the said collector was duly authorized to obtain judgment against the list of delinquent lands, at the June term of the County Court of Peoria county, and to proceed to sell the same on the third Monday after the commencement of said term; and that by the law, also, then in force, the said collector was bound to settle with the Auditor of public accounts, within sixty days after the time fixed by law for holding the first term of the Circuit Court of Peoria county, in the year, A. D. 1850, which would occur on the 29th day of July, A. D. 1850; that subsequent to the making of said writing obligatory by the defendants, to wit, on the fifth day of November, A. D. 1849, the General Assembly of the State of Illinois, changed the time of holding the Circuit Court of Peoria county, in .such manner as the time for holding the same, would occur on the fourth Monday of March, A. D. 1850, so that in fact, the time then fixed by law to settle with the Auditor, would occur on or about the 25th day of May, A. D. 1850; That on the sixth day of November, 1849, the General Assembly again changed the time of making said sale of delinquent lands, fixing the time thereof on the second Monday of June, A. D. 1850, and on the same day passed a law prohibiting the said collector from proceeding to collect said taxes and revenue due the State, by distress, until the first day of March, A. D- 1850; and on the same day extended to said collector the time for making his said settlement with the Auditor of public accounts, on the first day of July, 1850, thereby then and there, and wholly without the consent of the defendants, materially altering and changing the liability of the defendants in the premises. The defendants also pleaded payment of $819 52, and non estfactum. Issues of fact were taken upon the fifth plea, the pleas of payment and non est factum. The issues upon the fifth plea, and the plea of non est factum were found for the plaintiff, and the issue of payment for defendants. The first, second, third, fourth, and sixth pleas were demurred to, and the demurrer was sustained, and judgment given on these pleas, for the plaintiff. The defendants elected to abide by the demurrer. The points made by defendants are presented by the several pleas demurred to. The defendants contend, that the changes of the law referred to in the pleas, released the securities.

      The cause was heard before Davis, Judge, at the October term,. 1550, of the Tazewell Circuit Court. The defendants appealed,
    N. H. Purple & R. S. Blackwell, for Appellants.
    The contract of a surety upon an official bond, is to be construed according to the law in force at the time of the execution of the bond. Reynolds v. Hall, 2 Illinois, 38, (1 Scam.;) People v. Moon, 4 ibid, 123, (3 Scam.;) U. S. v. Kirkpatrick, 9 Whea., 720: Combe v. Woolfe, 21 Eng. C. L. Rep., 253.
    Such has been the understanding of the Legislature of this State, and when they intended to hold the sureties beyond the terms of their undertaking, as expressed in the contract, they invariably framed the condition of the bond in such manner as to hold the sureties responsible, notwithstanding future changes in the law. R. S., 1845, pages 76, §2, 77, §2, 422, §1, 497, §7, 505, §49, 514, §2, 551, §68, 589, §3.
    The terms of the bond sued upon in this case, do not contemplate any change in the law; and the assent of the sureties to such changes cannot be presumed. 2 Am. Lead. Ca. 169; Davis v. People, 6 Illinois, 409, (1 Gilman;) People v. McHatton, 7 Illinois, 638, (2 Gilman.)
    The Legislature have no right to vary the terms of the undertaking, the sureties have a right to be consulted in reference to every arrangement between the creditor and principal, and if the contract is varied without their assent, whether the alteration is material or not, the sureties are discharged. There is a conclusive presumption that by the alterations, the sureties are injured. Field v. Rawlings, 6 Illinois, 583, (1 Gilman;) Sharp v. Bedell, 10 Illinois, 88, (5 Gilman;) State v. Medary, 17 Ohio, 565; Rees v. Barrington, 2 Vesay, Jr. 540; Norton v. Roberts, 4 Monroe, 493; 2 Am. Lead. Ca., 149.
    Stuart & Edwards, Lincoln & Herndon, D. B. Campbell and D. L. Gregg, for Appellees.
    D. L. Gregg, made the following points.
    The main question presented in this case, by the assignment of error, is, whether the sureties in a Collector’s bond, are discharged from their liability, by the passage of laws without their consent, changing the time in which such collector shall perform certain duties pertaining to his office, such as obtaining judgment against delinquent tax payers, distraining for taxes, settlement with the Auditor, &c.
    It is competent for the Legislature to make, from time to time, such changes in the revenue laws as the public good may require. The obligation of the bond refers not only to acts in force at the túne of its execution, but to such as may subsequently be passed.
    This principle is recognized in the State of Indiana, as appears from the case of Kindle and others v. The State, 7 Blackford, 586. See also 9 Wheaton, 720, 736, and 9 Wheaton, 184, 190.
    It has been expressly decided by the Supreme Court of Maryland, that an extension of time, by the Legislature, to a Sheriff, does not discharge his sureties. State of Maryland v. Carleton, et al., 1 Gill, 257. In the case of The People, &c. v. McHatton. 2 Gilman, 731, also recognize the same doctrine.
    It may be laid down as a general principle, that, as the Legislature has a right to make changes in the laws which regulate the duties and responsibilities of public officers, whenever the public good requires it, parties becoming sureties mil be presumed to have reference to the probability of such changes. The case of Adams et al. v. The County of Logan, seems to sustain this view. 11 Illinois Reports, 336.
    Lincoln and Herndon made the following points:
    Mere delay by the principal in not suing the principal debtor will not discharge the surety. The taking of a mortgage, and giving time in the mortgage, will not discharge the surety. The surety is not released if collateral .surety is sometimes taken from him. 11 Illinois, 352; 6 Howard U. S., 279.
    The surety will not be released if the officers of the government, fail and neglect to make the principal in the bond, account and pay over the money, at the times, and in the manner, prescribed by law. 9 Wheaton, 720; 5 Condensed, 733; 6 Condensed, 264; 11 Wheaton, 154; 1 Peters, 325.
    The secret instructions of the department to the principal in the bond to retain the balance till drawn for, or any private instructions by the mere discretion of the officers in the department, release the sureties- 3 Mason O. 0., 446; 1 Howard H. S., 250. /
    In the case at bar, the Legislature passed a general law, not a particular and special law, to meet particular eases, allowing all officers a longer-time to account than they had when the bond was signed,, and; in this case the term of holding the Circuit Court was altered soithat it came on a few weeks later than under the old law. These general laws, and the altering the times of holding Court, the Legislature have an undoubted right to act upon. The- sureties’ contract, with reference to this constitutional right, and the frequent exercise of that right. 2 Gilman, 731; 7 Blackford, 586; 1 Gill, 249; 2 Gilman, 731.
   Trumbull, J.

The question in this case is, whether the . sureties upon the appeal bond of the collector, are discharged by the changes in the law regulating the duties of collectors, enacted subsequent to the date of the bond. The alterations in the law, are set up in a number of distinct pleas, to all of which the Circuit Court sustained a demurrer.

One of the pleas, after referring to various statutes enacted subsequent, to the date of the bond, alleges that thereby the liability of the sureties was materially changed; and it is insisted that the plaintiffs below, by demurring to the plea, have admitted the truth of this allegation. This is not so. A demurrer only admits such facts as are well pleaded. The laws in question are all public acts, and by demurring to a plea construing them, the plaintiffs did not admit the construction to be correct. That is a matter to' be determined by the Court.

The changes in the law complained of, are all of a general character, and applicable to all collectors in the State. They impose no new duty upon the collector, which he was not before required to perform, nor are the liabilities of the sureties in any respect added to or increased, by the passage of the subsequent acts.

The provision of the Statute, postponing the time when the collector should be authorized to distrain for taxes, from the first of February till the first of March, which was so much relied upon in the argument, did not increase the liability of the sureties. The law has always provided for discharging the collector from responsibility, on account of any taxes which could not be collected by reasonable and proper diligence. If, therefore, he was unable to make the taxes of any individual, by reason of the removal or insolvency of such individual, between the first day of February and the first day of March, the law discharged the Sheriff from liability on account of such tax.

Thus his liability was diminished, in exact proportion as his power to collect was abridged.

The other alterations of the law set up by the sureties in their discharge, are a change in the time of obtaining judgment against delinquent lands, from May 27th, to June first; and in the time for settlement by the collector with the Auditor, from June 27th, to July first. How the sureties were prejudiced by these changes has not been shown, nor do we perceive. It was a matter of no importance to them, whether the judgment against delinquent lands, was a few days sooner or later, nor were their liabilities increased, by requiring a settlement with the Auditor a few weeks earlier, so that an abundance of time was still left the collector, within which to make the taxes, which is not denied.

The fourth plea, alleges a change in the law under which the contract was made, without the consent of the sureties, whereby they were required to pay interest, at the rate of ten per cent, from the first day of July, 1850. It would be a sufficient answer to this plea, to say, that the act of November 6,1849, referred to in said plea, imposes no such liability upon the sureties. But the plea is defective, in not alleging upon what sum, or upon what account, they were required to pay interest. The parties, have, however, treated it as a plea, setting up as a consequence of the change in the time of settlement, that the sureties have become liable to pay ten per cent, per annum, upon the balance that the collector should fail to pay, from the first, instead of the twenty seventh of July, as the law stood when the bond was executed. Even in this point of view, the plea presents no defence to the action. The ten per cent, is not imposed by the law upon the sureties of the collector, but as a personal penalty upon him. Acts 1847, p. 81, §18.

The sureties, are in no event liable for this penalty, nor does it appear from the record that it has been assessed against them.

The point to be decided, then, is whether the sureties of the collector are discharged by the enactment of general laws, sub sequent to the date of the bond, by which the collector’s duties are varied, but not to the prejudice of the sureties.

It was decided by this Court, at its last term, at Mt. Vernon, in the case of The Governor v. Ridgway, ante, p. 14, that the sureties of an officer upon his official bond, conditioned for the performance of the duties of the office, were liable for the failure of their principal, to perform duties prescribed by subsequent laws, provided such additional duties were of a character properly appertaining to the office, and connected with its duties, as regulated by law at the time the bond was entered into. It is unnecessary to repeat here, the reasons for that decision, or the authorities upon which it was based, as they can be seen by a reference to the case.

The condition of the bond in this case is, that the said “ William Compher shall perform all the duties required to be performed by him, as collector of the said county of Peoria, in the time and manner prescribed by law,” that is, all the duties properly appertaining to the office of collector, and that shall, from time to time, be required of him, during his continuance in office.

The power to control the revenue is one of the highest attributes of sovereignty. Without this power, no government could exist, and it cannot be supposed that the General Assembly-intended to part with this important prerogative, or to contract that no change should be made in the manner of collecting the revenue, during the continuance in office of any of its collectors. Parties who go security upon bonds of this character, do so with the full knowledge and expectation, that the revenue laws will be changed, and the duties of the collectors altered as the public interests may require, and they have no right to complain of any alteration in the laws not materially changing the character of the duties of their principal, especially, when such-alterations are in no wise prejudicial to their interest. Such are.thq changes , of the law under consideration.

It is, however, insisted that this Court has given a different construction to this class of bonds, and the case of Reynolds v. Hall, 1 Scam., 35, is relied upon to support this position.

That case was very different from this. It decides that the sureties of the State Treasurer, were not liable for his acts as cashier of the State Bank, the duties of cashier, having been cast upon him by a law subsequent to the date of the bond. The decision is put upon the express ground, that a new office had been imposed upon the treasurer, not only unconnected with his office as Treasurer, but of a diversified and entirely different nature. To have held the sureties liable in that case, would have been to extend their liability by implication, beyond the terms of the contract, as understood by the parties, at the time it was made. Not so in this case. Here no new and distinct duty was imposed upon Compher; on the contrary, all the changes in the law related to the detail of the duties before imposed upon him.

Two other cases decided in this Court. Davis v. The People, 1 Gil., 409, and The People v. McHatton, 2 Gil., 638, are also relied lipón as decisive of this case. In both of those cases, the time fixed by law, when collectors were required to pay over the amount of taxes, was extended to Davis and McHatton by special acts of the Legislature, and it may well be said that their sureties did not contemplate, at the time the bond was executed, that the Legislature would, by special acts, make the time of settlement, or the liability of those particular collectors, different from that of all others in the State.

They could not have anticipated, that the case of the particular collector, for whom they had become sureties, would be made an exception to all others, and it would undoubtedly have violated the terms of the contract, as understood by the parties when it was made, to have held them liable under such circumstances.

There is another case, however, that of The People v. McHatton, 2 Gil., 731, which is directly in point upon this branch of the case. It was held in that case, that the sureties of the collector were not discharged by a change in the time of holding court, whereby the time for paying the taxes into the State Treasurf*was extefded. It is true the law did not at that time, specify tj¡ie cláy for«paj|mg over,taxes, except by referenge 1g> gthgr acts, and such was the case when the present bond was executed, but the payment was to be made, within a certain number of days after the sale of the delinquent lands, which was also to take place a certain length of time, after the first term in each year of the Circuit Court of the particular county. The time of the sale and payment, were made to depend upon the time of holding the Circuit Court, but that was fixed by law at a certain time. The day of payment may, therefore! be said to have been fixed, for that is certain which may be rendered certain. At all events, the time of payment was as much fixed, and as much changed, in McHatton’s case as in this. The cases are, therefore, precisely analogous.

The case of Kindle v. The State, 7 Blackf., 586, is also directly in point upon most of the questions under consideration. The action was upon a County Treasurer’s bond, and the Court say : “ The contract refers to laws that may be passed during the term for which the treasurer holds, as well as the law in force at the time it was entered into. * * * * The law relied upon in

this case as effecting the discharge of the sureties, is a general law having respect only to the times of settlement with the authorized agents of the government. As to such a matter, we think the Legislature intended, and the bond contemplates, that the law may be modified as experience shall show that the public good demands.”

The judgment of the Circuit Court is affirmed with costs.

Judgment Affirmed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    William T. Major, Pltff in Error, v. M. H. Hawkes, et al. Defts in Error.
    ERROR TO McLEAM.
    Upon a voluntary dissolution of a partnership, each of the partners, in the absence of any agreement to the contrary, may collect the debts and receipt therefi r. Mor does the insolvency of the partner receiving the money, nor the application he makes of it, alter the right."
    A partner under such circumstances, has not the right, without consent, to apply partnership effects in discharge of his individual indebtedness, and a creditor >f his, wh« shfulá knowingly receive such effects, w*uld be responsible therefor t* the firm.
    The defendants in error sued Major, in the McLean Circuit Court, to recover an indebtedness due to them as co-partners. Major proved the payment of his indebtedness to Hawkes, one of the co-partners, after the publication of a notice of dissolution, by mutual consent. A verdict was found on the circuit, against Major, and he brings the cause to this Court by writ of error. The cause was heard before Davis, Judge.

      A Gridley & 0. Peters, for Pltff in Error.
    Cited Story on Part., 474, note 2; Brewster v. Mott, et al. 4 Scam., 378; Gordon v. Freeman, 11 Ills., 14.
    Lincoln & Herndon, for Defts in Error.
   Trumbull, J.

Upon the voluntary dissolution of a partnership, each of the partners, in the absence of any agreement to the contrary, retains the right to collect debts due the firm, and give discharges therefor. Story on Partnership, §328.

Hawkes had, therefore, just as much right to receive the money from Major, and give the receipt of the firm, as either of the other partners, and the receipt, if honestly obtained, was a defence to the further prosecution of the action. The fact, that Major first made an attempt to settle the account by giving Hawkes credit upon a claim which he had against him individually, did not prevent him from afterwards paying the money to Hawkes, when he ascertained that the other partners would not assent to the first arrangement. Major was not responsible for the application which Hawkes made of the money, so that he paid it in good faith, nor does the insolvency of Hawkes, at the time, alter the case. The "record shows, that he was known by the other partners to have been insolvent when the partnership was formed. They were willing to trust him, notwithstanding, and by becoming his partners, gave to him the same right to receive the debts, that should become due the firm which either of them should possess. It is true, that without the assent of his co-partners, he had no right to apply partnership effects in discharge of his individual indebtedness, and a creditor of his, knowingly receiving such effects in discharge, would be responsible for the same to the firm». «

To deprive' Major of the benefit of the payment made to Hawkes, it was incumbent upon the plaintiffs below, to show that it was not made in good faith. It has been suggested by counsel, that the money was returned to Major, after being paid over, but there is no evidence in the case to justify such a presumption. The witness to the receipt, testifies that the money was paid over to Hawkes in his presence, and this is all the evidence in the record about the money. For aught that appears, Hawkes may have accounted with his co-partners for the money received from Major, but whether he has or not, is quite immaterial to Major, provided he honestly paid the money, and has in no way aided or abetted in the misapplication of it. There would be no safety in paying a partnership debt to a single member of a firm, if the debtor was bound to see that the money was properly applied by the partner receiving it.

The judgment of the Circuit Court is reversed and the cause remanded. '

Judgment reversed.


author: Treat, C. J.

text:
    Robert Dawson, Pltff in Error, v. Abel Harrington, Deft in Error.
    ERROR TO BROWN.
    The Statute creating a lien in favor of mechanics or others performing labor or providing materials, protects those who do so at the instance of the owner of the property. The benefits of the law are not extended to those who render services or furnish materials on account of the contractor.
    This was a petition for Mechanic’s lien, by the defendant in error, Abel Harrington, against the plaintiff in error, Robert Dawson, filed in the Brown Circuit Court.
    The bill sets forth, that Dawson, by his agent, G. W. Robbins, engaged Harrington to work in a certain mill, which Dawson was building, Dawson to pay Harrington $1 83, per day.
    Bill alleges, that he worked one hundred days and had received thirty dollars, and thus there was still due $143 00.
    Defendant answered, denying the authority of Robbins, as his agent, and showing that Robbins built the mill by special contract with Dawson; and, if Harrington worked upon the mill at all, it was in the employment of Robbins.
    There was a trial by jury, Minshall, Judge, presiding. The evidence produced by Harrington shows that his work was worth $90. No evidence as to what length of time Harrington worked. The defendant offered to prove, that Robbins was to build the mill by contract, and had received payment in full, including Harrington’s work, and this upon the evidence of Harrington, given upon a former suit between Dawson and Robbins. This evidence was rejected by the Court. The jury found a verdict for plaintiff for $106, upon which the Court pronounced a common law judgment. The defendant moved for a new trial, which motion was overruled. The defendant now brings the case here by writ of error.
    J. A. Singleton & R. S. Blackwell, for Pltff in Error.
    C. L. Higbee & M. McConnel, for Deft in Error.
   Treat, C. J.

This was a proceeding to enforce a mechanic’s lien, commenced by Harrington against Dawson. The complainant alleged in his bill that, in September, 1847, he was employed by one Robbins, who was the agent of the defendant, to work on a mill, then being erected by the defendant, at the rate of $1 83, per day; and that in pursuance of such contract, he worked on the mill one hundred days, for which there was due him a balance of $143. The defendant alleged in his answer, that Robbins erected the mill for him, for a stipulated compensation ; and he denied, that Robbins was at any time his agent, and that the complainant ever performed any labor on the mill, with his authority or consent. There was a replication to the answer, and a trial before a jury. The complainant introduced a witness, who testified, that complainant’s work on the mill was worth $90; that he was originally employed by Robbins, who had contracted to construct the mill for the defendant; and that the defendant subsequently agreed to see the workmen paid, for what labor they might perform after a specified time, which time the witness could not recollect. On this evidence, the jury returned a verdict in favor of the complainant for $106. The Court overruled a motion to set aside the finding, and rendered judgment for the complainant.

The statute provides that “Any person who shall, by contract with the owner of any piece of land or town lot, furnish labor or materials for erecting or repairing any building, or the appurtenances of any building on such land or lot, shall have a hen upon the whole tract of land or town lot, in the manner herein provided, for the amount due to him for such labor or materials.” R. S. ch. 65, §1. The proof did not bring the complainant within this provision. He did not perform-labor on the mill in pursuance of any contract made with the owner. He was employed by Robbins, who had contracted to erect the mill for the defendant. He must, therefore, look to Robbins for compensation, and not to the defendant. Robbins had a lien on the premises, and not those employed by him. The statute only creates a lien in favor of persons performing labor, or providing materials, at the instance of the owner of the property. Its benefits are not extended to those rendering services or furnishing materials on account of the contractor. The undertaking by the defendant to pay for work that should be done after a certain day, cannot avail the complainant, as he failed entirely to show that any part of the services in question were rendered subsequent to that time.

The judgment of the Circuit Court must be reversed, and the bill dismissed with costs.

Judgment reversed.


author: Caton, J.

text:
    Bela C. Webster et al., Pltffs in Error v. Augustus C. French et al., Defts in Error.
    ERROR TO SANGAMON.
    Under a law which required the Governor to receive written sealed bids, until the first day of July, Held, that all bids received after the thirtieth of June, must be rejected. Under a directory statute, a duty should be performed at the time specified, but may be valid if performed afterwards. Under a peremptory law, the act must be done at the time specified.
    The word “ until,” may in a contract or a law, have an exclusive or inclusive meaning ; depending upon the subject, transaction or connection about, or in which it is used.
    After the decision of this case as reported in the 11th of Illinois page 254; on the case being remanded to the Circuit Court, the complainants, plaintiffs in error, filed a supplemental bill, to which answers were filed by all the respondents. But as the case turns exclusively upon the time, within which the bid-dings in controversy were offered, it is not necessary that the pleadings and proofs should be set out.
    The record shows .conclusively, that the bid of the complainants, (as also the bids of other parties,) were offered on the 2d of July, 1849. The bill was heard, before Davis, Judge, and a pro forma decree dismissing the bill was entered by consent.
    S. T. Logan, Lincoln & Heendon and M. Brayman for Pltffs in Error.
    Browning & Bushnell, Stuart and Edwards, and W. I Ferguson for Defts in Error.
   Caton, J.

At what time were the biddings closed ? This is the first and most important question, and it must be determined by the true construction of the act of the legislature, under which the sale was made. That act says: “The Governor shall receive written sealed bids for said property, from allpersons until the first day of July, A. D., 1849, at which time all the bids received shall be opened and compared by the Governor,” &c= In order to determine whether all the bids must be in before the first day of July, we must not only look at the language of the act, but we must also consider its objects, and the nature of the transaction contemplated. By this mode of sale, as we attempted to show when this case was before us at the last term, in order to insure a just competition among bidders, fairness is indispensable. Certain rights must be secured to those who bid, and eminently important among these, is, that a certain determinate time shall be fixed when the biddings shall be closed. Without this, all men will not necessarily stand on an equal footing, which they certainly should. The same rule which shall be held to control this case, must also govern others of a like nature, and this rule should be such as to exclude as far as possible, any advantage which might be extended to one, and which another may not enjoy as a matter of right. This would not be the case if a discretion is left, as to the time when no further bids shall be received. It is not enough that in this instance, we can see that all who desired to bid, had an opportunity to file their proposals. In some other case it might happen, if a discretion is allowed, that the bidding will be kept open till certain bids are received, and then closed, to the exclusion of others, less favored. The rights of the bidders are fixed by the closing of the biddings, and if that is determined by the lapse of time, certainty, which is essential ' to the security of all rights is attained. Confidence as well as fairness is important to insure free competition, and by this certainty, confidence is promoted. We do not mean to say, that a party may not by the terms of the sale reserve the right to receive bids so long as he pleases, or close the bidding at his discretion. An express provision to that effect, in the terms of a law like this, or in the terms offered for a sale by an individual, would undoubtedly authorize such a course, but in the absence of such express provision, or of a necessary implication to that effect, such authority ought not to be presumed.

If, then, the terms of this act, will fairly and reasonably admit of a construction which fixes a determined period, when the bid-dings shall be closed, that construction should be adopted. The provision of the act is that bids shall be received until the first day of July, 1849, at which time the bids shall be opened. We think that the language of this act not only admits of this construction, but that according to the ordinary use of language, it is the most natural construction, even without any aid from the subject matter of the provision. The word “ until,” may, either in a contract or a law, have an exclusive or an inclusive meaning according to the subject to which it is applied, the nature of the transaction which it specifies, and the connection in which it is used. In the case of Sands v. Lyon, 18 Connecticut 27, the Court said: “ The word ‘ after,’ which is used in the devise we are considering, like 1 from,’ ‘succeeding,’ ‘subsequent,’ and similar words, where it is not expressly declared to be exclusive or inclusive, is susceptible of different significations, and is used in different senses, and with an exclusive or inclusive meaning, according to the subject to which it is applied.” Of the same class are the correlatives of those words, as “until,” “at,” “before,” “ within,” and the like. All of these words may be used in the same exclusive or inclusive sense and may be used as words of similar import. They are most generally used as words of limitation and indeed almost universally so, unless there are other controlling expressions in the connection, showing that a different meaning was intended. Before the first of July, and until\h& first of July, convey nearly, if not precisely the same meaning. In statutes prescribing time for redemption the word “ within ” is held to be exclusive, although the positive word of exclusion “and not after,” which are usually inserted in statutes of limitations, are not used. The People v. Luther, 1 Wendell 42.

In this case we entertain no doubt that the time within which bids might be received expired with the 30th of June. The legislature have exercised the power of determining how long the right to put in bids should continue and when that time expired, the rights of the bidders were fixed, and they could not he defeated by bids coming in after that time. Those rights were guarantied by the terms of the law and of the advertisement.— Bids were invited until a given time, but after that time none were authorized to bid. Had no bids been filed before the first day of July, the power of the Governor to sell, would have been gone. Ho one having closed with the terms offered by the State, she was not bound by any other offer.

But it was urged upon the argument, that the subsequent words, -specifying the time when the bids should be opened, extended the time of bidding up to the opening of the bids, or in other words, that the closing of the biddings, and the opening of the bids were to be simultaneous acts. The provision of the law required that bids should be received till the first day of July, at which time, all bids received should be opened. We entirely concur with counsel that this provision prescribing the time when the bids should be opened was but directory. According to the decision in this case, when it was before us at the last term, the responsible bidder who by putting in the highest bid brought himself' within the terms offered by the State, in the law and the advertisement, closed a contract with the State, which either party had! a right to insist upon. By this he acquired a vested right ©£' which he ought not to he deprived, by the delay of the-vendor in opening the bids at a particular time. The governor was- still, vested with a necessary discretion to determine whowereresponsible bidders,, and of the responsibility of the security offered, bufe still all had a right to have their bids considered, if they wersput in in time, and the highest responsible bidder who- offered! responsible security, had a right to.- claim that his bid should. be= accepted. It must have been foreseen,, that various, accidents, might occur which would prevent the opening of the bids even, for days after the time specified in the law,, as-the sickness or unavoidable absence of the governor; the secretary of' State on- the-treasurer, in whose presence the-bidh were required to be- apernad. If the bids could not be opened after the time designated,, in such a case, the rights of both parties, would be lost. It was, the intention of the legislature to effect a sale of the property at the time, and as the governor had no authority again to offer the property, that intention might be defeated, if the specification of the time for opening the bids, should not be held peremptory. By a directory statute, it is not to be understood that no duty is imposed to do the act at the time specified, in the absence of a satisfactory reason for not then doing it, but simply that the act is valid if done afterwards; while a peremptory law requires the act to be done as specified and at no other time.

But we think the argument which proves that the provision, fixing the time for opening the bids, is directory, conclusively establishes that the provision fixing the time, within which the bidding should bo closed, is peremptory. If it were otherwise, the time for bidding might have been extended indefinitely, till the necessity which might have occasioned the delay in opening the bids, ceased. dSTo necessity can require such a construction of this law.

With the view which we entertain of this ease it is unnecessary to inquire what effect the fact that the first day of July, 1849, was Sunday, might otherwise have had. All the bids were required to be in before that time. And, as we have seen, they might be opened after, that day ceases to be a matter of the least importance, as the complainants bid was not put in till the second of July, in our opinion it was not a bid and no rights could be acquired under it which -.can be enforced in a court of equity. It is unnecessary to .say that all the bids put in after the 80th of June must share the same fate.

The decree of the Circuit Court dismissing the bill must bo affirmed.

Decree affirmed,


text:
    The People, ex relatione, Mark Skinner, v. The Auditor.
    APPLICATION FOR A MANDAMUS.
    It is the duty of the Auditor to apportion the proceeds of the two mill tax, collected under the provisions of the 15th article of the Constitution, upon such state indebtedness, as shall be exhibited to him for the purpose, and draw his warrant on the treasury.
    This provision of the Constitution is complete, and can be executed without legislative aid.
    The proceeds of this tax shall be apportioned annually, on the first day of January, to the payment of the principal of such of the indebtedness provided for, as shall he presented for that purpose.
    Neither the surplus revenue deposited with the state, by act of Congress of 23d June, 1886, nor interest bonds, are iudebtedness, within the appropriation of this tax.
    It is not competent for the legislature to direct that any portion of this tax shall be reserved for the benefit of such creditors as may fail to present their demands on the day named by the Constitution.
    So much of the act of the 12th February, 1849, as requires, that the surplus revenue deposited with' the state, shall share in the proceeds of this tax, is unconstitutional.
    This application is grounded upon ¡the.following petition:
    “ That on the first day of January, A. D. 1851, your petitioner, being the legal holder of certain state indebtedness of the State of Illinois, other than the canal and school indebtedness of said state, to wit: Mew Internal Improvement Stock, to the amount of one hundred and seventy-one thousand eight hundred dollars, did, on said first day of January, present the same to the Auditor of the State of Illinois, Thomas H. Campbell, Esq., and demanded from Mm payment of the same, or so much thereof as your petitioner would be entitled to receive, from all moneys in the treasury of the State of Illinois, collected under and by-virtue of a tax imposed under and by virtue of the fifteenth article of the Constitution of the State of Illinois, and under and by virtue of the twenty-first section of an act entitled, “ An act to amend the several acts concerning the Public Revenue,” in force February 8th, 1849, passed in furtherance of said section of the Constitution. And your petitioner left with said Auditor, at the time of making such demand, said state indebtedness, for the purpose of having proper credits entered thereon, in obedience with the provisions of said 15th article of the Constitution, and of the said law passed in aid thereof. And your petitioner further shows, that on the second day of January, A. D. 1851, your petitioner applied to said Auditor and Remanded your petitioner’s pro rata portion of all money then in the treasury of the 'State of Illinois, collected under and by virtue of said tax, to which the said Auditor replied, that he doubted his authority to pay the same, or issue his warrant on the treasury therefor, and ■therefore refused so to do.
    And the said Auditor further informed your petitioner, that . his Excellency, A. C. French, the Governor of the State of Illinois, had preferred a claim, without presenting any legal evidence of indebtedness or voucher therefor, to- receive a portion of said tax moneys, upon and on account of some claim in favor ' of the United States, for certain money, amounting to about the "sum of four hundred and seventy-five thousand dollars, hereto- ■ fore loaned or deposited by the said United States, to or with the State of Illinois; and your petitioner further shows that said ‘ Governor preferred the said claim without any authority from the United States in that behalf, and not for the purpose of pay- " ing the same to the United States, but solely to use and employ any money he might receive on account of said claim, in the purchase of Illinois bonds, in manner and form as directed in the first section of “An act concerning the Public Debt,” in force April 18th, 1849.
    ' And your petitioner would further show, that said Auditor , informed him that certain interest bonds, or bonds given for interest on other state indebtedness, and which said interest bonds will and do not bear interest until from and after some time in A. D. 1857, have also been presented to said Auditor for payment as aforesaid.
    And your petitioner further shows, that there is now collected from said tax and in the treasury of the State of Illinois, one hundred and sixty-six thousand dollars, or thereabouts, which ought to be distributed and paid over to your petitioner and others, in conformity with the requirement of the Constitution, and the law. -
    And your petitioner prays that a writ of mandamus may be issued out of and under the seal of this honorable Court, directed to said Auditor, commanding him forthwith to apportion and pay to yeur petitioner, by his warrants on the treasury of the State of Illinois, the amount which your petitioner is entitled to receive from said tax money, excluding from the computation and apportionment to he made by said Auditor, the said pretended claim on behalf of the United States, and the said interest bonds.”

      The answer of the Auditor, admits that the state indebtedness was presented, and that a demand was made on the first and second days of January, as stated in the petition, and that payment was refused. Admits also, that Governor French, acting under the provisions of an act, entitled “An act concerning the Public Debt,1’ in force April 13, 1849, and with such authority as is solely derived from law, has presented a claim, on behalf of the state, for payment from the proceeds of said tax, of the amount of the money heretofore loaned by the United States to the State of Illinois, under and by virtue of the provisions of an act of Congress, entitled “ An act to regulate the Deposits of the Public Money,” approved June 23, 1836, and of an act entitled, “An act to postpone the fourth installment of deposit with the States,” approved October 2,1837: or of so much thereof as a pro rata division of the proceeds of said tax among the persons presenting claims would pay. And further, that various persons have also presented for like payment, various bonds of the state issued for the interest that has accrued on the state indebtedness. Admits that there is in the treasury about the sum stated in the petition. States that he is not advised, whether he is the proper officer to whom such claims should be presented for payment, nor does he know that he is empowered to'draw his warrant on the treasury for the payment of them. Also, that he is not advised, whether the claim presented by the Governor, nor whether the interest bonds, are entitled to payment under the Constitution.
    An agreement was filed, consenting that if the Court should be of opinion, that the Auditor should apportion the money, excluding from the computation the claim made by the Governor, on account of the deposit fund due the United States, as also the interest bonds, or either of them, and that it was the duty of the Auditor to pay the petitioner his pro rata proportion of said tax moneys, then a peremptory mandamus might issue accordingly.
    The Relator made the following points in support of his petition:
    The 15th article of the Constitution imposes the tax, and specifically directs that the proceeds shall annually, on the first day

      sf January, be apportioned and paid pro rata, on all state indebtedness other than the canal and school debts, presented on that day, by the holders, and credits shall be endorsed thereon, &c.

    The 21st section of the Revenue act of 1849, passed in the very words of the Constitution, assesses the tax, and makes a specific appropriation of the proceeds. The law was unnecessary, but it removes all question as to the necessity of legislative action, to give vitality to the constitutional provision.
    Neither the Constitution, nor law in aid thereof, specifically appoint the officer or person to whom the claims are to be presented, and by whom the tax money should be apportioned and paid. But all general appropriations are paid under the order and direction of the Auditor, to whom the claimant first applies in all cases, where the law does not specifically direct otherwise, and who issues his warrant on the treasury to pay, &c. In this case, an appropriation is made, and the duty of carrying out the appropriation is devolved upon the Auditor, and as clearly belongs to and is as incumbent on his office, as in the case of any appropriation. See R. S., chapter “Auditor and Treasurer.” Nothing can be clearer than that all claims must be presented to the officer whose duty it is to pass upon them.
    The Constitution and the Revenue act, specifically direct that the tax money shall be paid in reduction of the principal of the state debt. This necessarily and absolutely excludes interest No one would pretend that payment could be made on the interest coupons if presented. An “interest bond” is but an amalgamation of several coupons, and is therefore in nowise different.
    The law entitled “An act concerning the Public Debt,” in force April 13th, 1849, is clearly opposed to the letter and spirit of the Constitution, in contemplating an appropriation of the moneys to the benefit of the state and not of her creditors, by pretending at the same time, and with the same money, to pay the state debt to the United States, and also to buy up the state bonds in the marlcet! The legal holder of a debt is the creditor always, and not the debtor. In this case, the state attempts to appear as the holder of a debt against herself) to the immediate injury of her diligent creditors. But the United States deposit money was always considered a donation, made in the guise of a loan. And at any rate, the question is conclusively settled against the present claim of the state, by the act of 25th Congress, Ch. 1, where it is directly and in terms enacted, that this money shall remain on deposit with the States until otherwise directed by Congress. No act altering or changing this disposition of the money has since been made, and therefore there is no officer or person now authorized by Congress to present this claim. But again, $355,000 of this money has been by the state merged in the school fund, and is part of the school debt, which is in terms excluded by the Constitution from sharing in the proceeds of the tax. And again, the Constitution, and the law, (Revenue act,) both contemplate the presentation of some evidence of indebtedness, on which credits are to be endorsed, &c. In this case, no legal evidence of indebtedness, issued by virtue of any law of the state, is pretended to be presented. The state has never executed any such evidence of indebtedness to the United States, the United States have no such evidence of indebtedness to present, have appointed no agent to present any; but on the other hand, Congress, by the act above quoted, has in terms expressly prohibited the presentation of any such claim, until Congress shall otherwise direct.
    The objection that no particular 1st January is named.in the law, is scarcely worth replying to. It is as plain as a postulate, that the law means the 1st of January of every year after a tax shall have been collected. In this case the tax money, or a principal portion of it, has been in the treasury for more than six months. It is better for the state to apply the money on few claims, than on many, and thereby save an immense expense in keeping accounts, &c. Suppose the whole debt had been presented. The dividend would scarcely have been ten cents on a bond, and the Auditor would have required an army of clerks to aid him in the matter.
    If the above views are correct, then the Auditor is the proper officer to whom to present the claims. It is his duty to apportion and pay to the legal holders of all claims, presentable by the law, that present their claims on the 1st day of January, of any year, after a tax shall have been collected under the law. That in the present instance the claim preferred by the Governor, on behalf of the United States deposit fund, and the claims presented on behalf of interest bonds, must be excluded from the computation and apportionment to be made by the Auditor; and a writ of mandamus must issue as prayed for.

      D. L. Gregg, for the Respondent.
    It is contended on the part of the respondent,
    1. That the Auditor of Public Accounts is not entitled, by law, to make a distribution of the proceeds of the tax provided for by the 15th article of the Constitution, or to issue his warrant for the payment of the same or any part thereof.
    T,he duties of the Auditor are defined by law. R. S., ch. IB, §7, 8. He is not authorized to act beyond the settlement of ordinary accounts, unless specially directed so to do. His general powers do not extend to the payment of moneys belonging to special funds. That this is so regarded, is shown by the fact, that whenever such funds have been created, special provision is made by law, for their disbursement. The “ interest fund” provided for by the act of March 1, 1845, is paid out by the Governor. R. S., 600. So also of other special funds, as that for the support of the deaf and dumb asylum, the hospital for the insane, &c., &c. Had these funds been within the class of “accounts” which the Auditor is required to take under his charge and disburse, such provisions for their payment would have been unnecessary and superfluous.
    The loth article of the Constitution directs the assessment and collection of a two mill tax, and provides that the fund so created shall be apportioned and paid over, pro rata, on the principal of that portion of the state debt not included under the heads of canal and school indebtedness. The language of this article is copied into the Revenue Act of February 8, 184-9, (§21,) but no direction is given either in the Constitution or law, specifying the officer by whom such apportionment and payment shall be made. The Auditor, as has been already shown, does not possess the requisite power for this purpose. If it exists at all, it must be vested in the Governor. He is bound by the Constitution (Art. IV, §9) to “take care that the laws be faithfully executed,” and where the law is silent, as to the officer who shall give effect to a specific power, which is required to be executed, the duty must fall into his hands.
    Therefore, it must be concluded that the petitioner has mistaken his proper remedy. He should have made his application for payment to the Governor, and not to the Auditor of Public Accounts.

      2. That the deposit fund is a debt due from the State of Illinois to the United States, and consequently, entitled to share in the pro rata distribution of the proceeds of the two mill tax, provided for by the 15th article of the Constitution. It is shown to be a debt, from a consideration of the terms on which it was received. On its receipt, certificates of deposit were issued to the General Government, expressing the usual legal obligations, and pledging the faith of the state “for the safe keeping and repayment thereof.” U. S. Statutes at Large, vol. 5, p. 55.
    The State of Illinois is bound to refund every dollar when Congress shall require the same to be done. Act of June 23, 1836, and act of October 2, 1847. Stat. at Large, p. 57, 501. The obligation of re-payment is not less sacred, than in the case of bonds in the hands of individual creditors.
    The act of February 12, 1849, (Laws, p. 70,) recognizes this obligation, and provides for the application of “the annual dividend upon the surplus revenue due the General Government.” This the state has a right to do, as the amount is, for the present, under her sole and exclusive control.
    If, then, it be established that the amount of surplus revenue deposited with the state, under the act of Congress above cited, is a valid and subsisting debt, due to the United States, it follows conclusively, that the proceeds of the Constitutional tax must be applied upon it pro rata, as in the case of other indebtedness.
    3. That the proceeds of the two mill tax can be applied only to the extinguishment of thq principal of the public debt. Hence, interest of every kind is excluded, whether liquidated by the issue of interest bonds, or otherwise. It is none the less interest because funded. It still retains its distinctive character, and must be excluded from a proportional share in the proceeds of the tax. It follows, then, that the bonds of this character presented for payment, are entitled to no consideration which will place them on the footing of the original bonds. They represent merely a portion of the interest of the public debt, and stand on an inferior footing.
   Treat, C. J.

It is the duty of the Auditor to apportion the proceeds of the two mill tax, assessed and collected under the provisions of the 15th article of the Constitution, among the holders of state indebtedness presented for the purpose, and draw warrants on the treasury for the payment of their respective shares. He is required to audit the accounts of “all persons authorized to receive money out of the treasury, by virtue of any appropriation made, or to be made by law, particularly authorizing such account;” and “on ascertaining the amount due any person from the treasury, the Auditor shall grant his warrant on the treasury for the sum due." E. S., ch. 13, §7, 8. This general direction clearly embraces the apportionment and distribution of the two mill tax. The fund receivable from this source is expressly devoted to a particular object—the payment of the principal of a certain portion of the state debt. It is specifically appropriated by the Constitution, and by the law passed in pursuance thereof. Laws of 1849, p. 126, §21. But an appropriation by the legislature was unnecessary. The provision of the Constitution is complete in itself, and can be executed without the aid of legislation. Money can only be drawn from the treasury on the warrant of the Auditor, except where the law has prescribed a different mode, as in the case of the interest fund, which is required to be apportioned and paid by the Executive. E. S., 600. In the absence of any law specially designating the officer, by whom the apportionment and distribution of the fund in question are to be made, the general provision of the statute clearly devolves the duty on the Auditor.

The duties of the Auditor in respect to this fund are plain and manifest. The 15th article of the Constitution is clear and explicit in its terms. It is capable of but one construction. It levies a two mill tax for the specific purpose of extinguishing the principal of the state indebtedness, except the canal and school debts; and directs that the proceeds shall annually be applied pro rata on the principal of such of the preferred indebtedness, as shall be presented for the purpose. The fund is not to be apportioned generally on the preferred indebtedness, but only on such part thereof, as shall be exhibited to the Auditor for payment. It is to be applied exclusively to the reduction and discharge of the 'principal of the indebtedness, and not on account of the interest. The Auditor has, on the 1st day of January, in each year, to ascertain the amount of the two mill tax actually paid into the treasury, and likewise the amount of unpaid principal on such of the preferred indebtedness, as shall, on that day, be presented to him for payment; and then to declare a dividend on the principal of such indebtedness, so that each holder thereof may receive his proportionate share of the fund in the treasury. He must then issue a warrant on the treasurer, in favor of each holder, payable out of the special fund, and indorse the amount on the bond or other legal evidence of the indebtedness, as so much paid thereon on account of the principal.

As before remarked, the proceeds of the tax are to be applied exclusively in the satisfaction of the principal of the indebtedness. This is the express requirement of the Constitution. Mo portion of the fund can be apportioned and paid on account of interest. Interest bonds are necessarily excluded. They cannot be considered as principal, within the true intent and meaning of the constitutional provision. It would not be contended, that interest coupons could be included in the apportionment of the fund. An interest bond is but an amalgamation of several coupons into one obligation. The indebtedness, though changed in form, still retains its distinctive features. It is still a part of the interest of the public debt, as contradistinguished from the principal. The law, authorizing the funding of the interest, shows on its face, that it was not the design to convert the interest into principal. The interest bonds are not payable, and do not bear interest, until 1857. The chief object of the law was to avoid the confusion and inconvenience resulting from the large quantity of coupons, identical in number and amount, and often detached from the obligations to which they belonged. Laws of 1847, p. 161. Besides, specific provision, however inadequate, had already been made for the payment of the interest. R. S., 600. It may possibly be, that interest bonds, after their maturity, should be regarded as part of the principal of the public debt, and entitled to share in the proceeds of the two-mill tax. But upon that question no opinion is now intimated.

Mor can the surplus revenue deposited with this State, under the provisions of the act of Congress, of the 23d of June, 1836, be now considered as an indebtedness on the part of the State, that can be presented for payment out of this fund. It was expressly provided, by the act of Congress, of the 2d of October, 1837, that the surplus revenue previously distributed, should “remain on deposit with the States, until otherwise directed by Congress.” That act continues in full force. There must, therefore, be some affirmative action by Congress, before this deposit can be recalled. Until such legislation is had, the general Government cannot present the certificates of deposite, and claim to participate in the distribution of the fund in question. The Governor is not in any sense the holder of these certificates of deposit. If they could be presented for payment, it would be the right of the United States, and not of the State, to designate the agent to whom the dividend should be paid. The creditor has the option to present his debt for payment or not. The State cannot appoint an agent to represent its creditors, much less to divert any part of the fund from its intended destination. It is not even competent for the Legislature to direct a portion of the fund to be reserved from the apportionment, for the benefit of creditors who may fail to present their demands, on the day indicated by the Constitution. So much of the act of the 12th of February, 1849, as requires the amount of the surplus revenue deposited with the State, to be taken into considereration, in the apportionment of the proceeds of the two-mill tax, and the dividend thereon to be paid to the Governor, is a clear and palpable violation of the Constitution. The legislature might with equal propriety have directed the whole of this tax to be annually added to the school fund, or distributed among the several counties in the state.

Let a peremptory mandamus issue pursuant to the prayer of the petition.

Mandamus awarded.


text:
    Charles Ballance, Appellant, v. James McFadden, Appellee.
    APPEAL FROM PEORIA.
    The act of Congress, of 3d March, 1823, in relation to French claims in Peoria, confirmed only such claims as were contained in the report of the Register. The grant only operated 'o the benefit of such persons as had presented their claims pursuant to the act of the 15th of May, 1820.
    Patents under these laws were only to be issued to the claimants, or to their legal representatives.
    A person must have been an actual settler, prior to the first of January, 1813, and one who had not, previous to the third of March, 1823, received from the United States a confirmation of a claim, or a donation of a tract of land or village lot; and he must, in addition, have claimed the lot, settled upon and improved it, in order to bring himself within the confirmatory act of 1823.
    A patent issued to a person, or his legal representative, who was not the claimant of a lot, does not vest any title in the patentee.
    If it appears on the face of a patent, or from anv legitimate evidence, that it was issued in a case not authorized hv law; it is inoperative and void, and may be impeached collaterally, in an action of ejectment.
    This was an action of ejectment, commenced in the Peoria Circuit, for a small piece of ground in the city of Peoria, brought by appellee against a servant of the appellant, who was in possession. The lot claimed was a part of the land known as the French claims, being parts of lots 7 and 8 of Bigelow and Underhill’s survey. There is nothing peculiar in the declaration, plea, verdict or judgment.
    The land claimed is thus described in the declaration, “ beginning at a post from which the north corner of French claims, numbered 1, 11, 41 & 42, as hereinafter described, bears north 46° 30' west, 50 feet, thence south forty-six and one half degrees east, one hundred and ninety feet,' to the northwesterly edge of Water Street, as laid out by Bigelow and Underhill; then 3e south fifty degrees thirty minutes west, along the northwesterly edge of said Water Street, twelve feet and eight inches; thence north 39 ° 30' west, one hundred feet, to the place of beginning, being part of a certain lot, designated as covered by claims number 1, 11, 41 & 42, in the south east fractional quarter of fractional section nine in township eight north, of range eight east of the fourth principal meridian, Illinois, according to the survey approved first September, 1840, by the Surveyor of the Public Lands in the States of Illinois and Missouri.”
    The cause was heard in Peoria Circuit Court, at August term, 1850, before Kellogg, Judge, and a jury, and a verdict was found for claimant, and a judgment rendered upon the verdict. Ballance prayed and was allowed an appeal.
    The facts of the case are fully stated in the opinion of the Court.
    C. Ballance and T. L. Dickey, for Appellant,
    cited 18 Johnson, 360; 8 Alabama, 264; 8 Howard, 308; 4 Howard 462, 436; 12 Missouri, 256; 12 Peters, 454, 456, 458-9; 8 Howard, 337-8; 5 Conn., 269, 273 ; 10 Peters, 309; 4 Bin., 235; 8 Howard, 233, 313-4; 6 Cond. Bop., 357.
    H. H. Purple and H. O. Merrihan, for Appellee,
    cited 4 Howard, 169; 9 Cranch, (3 Cond. B.,) 286; 2 Peters, 227; 8 Howard, 233,301; 2 Gill, 602; 3 Mass., 21; 4 Gill, 270; Dwarris on Statutes, 39, 40, 46, 47, 48; 15 Johnson, 379; 4 Howard, 169, 445, 448; 4 Peters, 173; 7 Howard, 270.
   Treat, C. J.

This was an action of ejectment, brought by James McFadden against Charles Ballance, to recover a lot of ground in the city of Peoria. A trial resulted in a verdict and judgment for the plaintiff. Various exceptions were taken by the defendant during the progress of the trial, and he now brings the record into this Court by appeal. For a proper understanding of the case, it will be necessary to set forth at some length, the evidence on which the plaintiff’s claim of title is founded.

On the 15th of May, 1820, Congress passed “An act for the relief of the inhabitants of the village of Peoria, in the State of Illinois,” which was as follows: “ That every person, or the legal representatives of every person, who claims a lot or lots in the village of Peoria, in the State of Illinois, shall, on or before the first day of October next, deliver to the register of the land office for the district of Edwardsville, a notice in writing of his or her claim; and it shall be the duty of the said register to make to the Secretary of the Treasury a report of all claims filed with the said register, with the substance of the evidence in support thereof; and also his opinion, and such remarks as he may think proper to make; which report, together with a list of the claims which, in the opinion of the said register, ought to be confirmed, shall be laid by the Secretary of the Treasury before Congress, for their determination. And the said register shall be allowed twenty-five cents for each claim on which a decision shall be made, whether such decision shall be in favor of or against the claims; which allowance shall be in full for his services under this act.”

On the 10th of Hovember, 1820, Edward Coles, register of the land office at Edwardsville, made a report to the Secretary of the Treasury, of his proceedings under this act of Congress. He reported each claim, and the substance of the evidence adduced in its support, but declined to give any opinion as to which of the claims should be confirmed. The claims connected with this case are thus stated in the report.

“ Ho. 1. Etienne Bernard claims a lot in the village of Peoria,containing about one arpent of land, situate about forty or fifty yards south of the lot of Joseph Grraveline, and bounded eastwardlv by a road or street, separating it from the lower part of Lake Peoria; southwardly by a road separating it from a lot occupied by John Baptiste Maillot, and westwardly and northwardly by commons or prairie.”

“Ho. 11. Louis Pilette, in right of his wife, Angelica, the daughter of the late Francis Wilette, of the village of Peoria, claims a lot in Peoria, containing about one-half of an arpent of land, and bounded northwardly by a street, eastwardly by a lot of Antoine Dcschamps, southwardly by a street separating it from the Blinois river, and westwardly by a street.”

“Ho. 41. Felix Fontaine claims a lot in Peoria, of eighty feet in front, by three hundred feet in depth, (French measure,) and bounded eastwardly by a street separating it from Lake Peoria, northwardly by a lot formerly occupied by Antoine Deschampa, but now claimed by him, Fontaine, and to the south and west by streets.”

“No. 42. Felix Fontaine, in right of his wife, Josette Carsereaudit Fontaine, claims a lot in Peoria, of eighty feet in front by three hundred feet in depth, (French measure,) and bounded eastwardly by a street separating it from Lake Peoria, northwardly by a lot claimed by the heirs of La Bonshier, westwardly by a street, and southwardly by a lot on which he (Fontaine) lived.”

The proof reported . by the register in connection with these claims need not be set out. Claim one covers the same ground as claims forty-one and forty-two; and claim eleven includes the same ground as claim forty-one. The premises in controversy in the present case are a part of claim forty-two.

On the 3d of March, 1823, Congress passed “An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois,” which was as follows:

“Sec. 1. That there is hereby granted to each of the French and Canadian inhabitants and other settlers in the village of Peoria, in the State- of Illinois, whose claims are contained in a report made by the register of the land office at Edwardsville, in pursuance of the act of Congress, approved May the fifteenth, one thousand eight hundred and twenty, and who had settled on a lot in the village afbresaid, prior to the first day of January, one thousand eight hundred and thirteen, and. who have not heretofore received a confirmation of claims, or donation of any tract of land or village lot from the United States, the lot so set-, tied upon and improved, where the same shall not exceed two acres, and where the same shall exceed two acres,, every such claimant shall be confirmed in a quantity not exceeding ten acres: Provided, nothing in this act contained shall be so construed as to affect the right, if any such there be, of any other person or persons to the said lots, or any part of them, derived from the United States, or any other source whatever, or as a pledge on the part of the United States, to make good any deficiency occasioned by any other interfering claim or claims.”

“Sec. 2. That it shall be the duty of the surveyor of the public lands of the United States for that district, to cause a survey to be made of the several lots, and to designate on a plat thereof the lot confirmed and set apart to each claimant, and forward the same to the Secretary of the Treasury, who shall cause patents to be issued in favor of such claimants, as in other cases.”

The survey required to be made by the second section of this act, was approved by the surveyor general, on the 1st of September, 1840.

On the 28th of August, 1845, a patent was issued to the legal representatives of Francis Wilette, for the lots covered by claims one, eleven, forty-one, and forty-two. It recited: “Whereas there has been deposited in the general land office, a certificate numbered two of the register and receiver of the land office at Edwardsville, Illinois, whereby it appears that in the report, dated 10th of November, 1820, of Edward Coles, register of the land office at Edwardsville, Illinois, the claim of Etienne Bernard is entered as number one; the claim of Louis Pilette in right of his wife, Angelica, the daughter of the late Francis Wilette,. is entered as number eleven; the claim of Felix Fontaine is entered as number forty-one, (the said numbers eleven and forty-.one,. according to the survey, being for the same land,, and covering the south west part of claim number one;) and the claim of Felix Fontaine is entered as number forty-two,.(covering, according to the survey, the north-east part of claim number one); and whereas, it further appears from the certificate aforesaid, that the said Francis Wilette is the inhabitant or rsettler within the purview of the confirmatory act of Congress, approved 3d March, 1823, entitled, “ An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois;” and that it has appeared to the satisfaction of the said register and receiver, that the said inhabitant or settler did not, prior to the said act of' 3d March, 1823, receive “a confirmation of claims, or donation of any tract of land or Milage lot from the United States;” and that the legal representatives of the said Francis Wilette, in virtue of the confirmatory act aforesaid, are entitled to a patent fora certain lot described as follows, to wit: the lot containing fifty-four thousand eight hundred and ninety-eight square feet, and' fourteen-hundredths of a square foot, surveyed and designated as covered by said claims number one, eleven, forty-one and forty-two, in the south-east fractional of fractional section in township eight north, of range eight east of the fourth principal meridian, Illinois, according to the survey, approved 1st September, 1840, by the Surveyor of the public lands in the States of Illinois and Missouri.” And the patent then proceeds to grant the lot to “the legal representatives of the said Francis Wilette, and to their heirs.”

After the introduction of this patent, the plaintiff read in evidence a deed from Bartholomew Fortier and Angelica his wife, dated the 17th of April, 1849, conveying the premises described in the patent to the plaintiff. He then proved by the depositions of Madeline Grlodon and Louis Le Compte, that Angelica Fortier was formerly the wife of Louis Pilette, and the only descendant of Francis Wilette.

It will not become necessary to allude to the evidence introduced by the defendant. An exception was taken to the admission of the patent in evidence, and that may be considered as presenting the whole merits of the plaintiff’s case.

The act of Congress of the 3d of March, 1828, confirmed only such claims as were contained in the report of the register. The act of the 15th of May, 1820, required his report to be laid before Congress for its consideration, and the claims included therein were exclusively the subject matter of the confirmatory act. The grant only operated to the bénefit of such persons as had presented their claims to the register, pursuant to the provisions of the first act. The lots thus specifically claimed were alone required to be surveyed. And patents were only authorized to be issued to the claimants thereof, or to their legal representatives. It was not enough, that a person was an actual settler prior to the 1st of January, 1813, and had not previous to the 3d of March, 1823, received from the United States a confirmation of a claim, or a donation of a tract of land or a village lot; but he must in addition have claimed the lot settled upon and improved, in order to bring himself within the provisions of „ the confirmatory act. Ho other persons were entitled to the benefits of that act. The report of the register, and the patent in question, both show that neither Wilette, nor his legal representatives, ever made any claim to lot forty-two; but, on the other hand, they clearly show that Bernard and Fontaine were the sole claimants. The Secretary of the Treasury, on the assumption that Wilette was the settler within the purview of these acts of Congress, caused a patent to be issued to his legal representatives for this lot. Could a patent issued under such circumstances, vest any title in the patentee? We unhesitatingly answer in the negative. The Secretary clearly exceeded his authority, in directing a patent to issue to the legal representatives of Wilette. The lot was set apart and appropriated to other persons. It belonged either to Bernard or Fontaine severally, or to both of them conjointly. And but to one or both of them, could the patent properly issue. The patent in question is a mere -nullity. It has no more force than so much waste paper. It is very true, that a patent is evidence of title in the patentee to the thing granted, until the contrary appears. It is presumed to have been regularly and rightfully issued. But when it appears on the face of the patent, or from any legitimate evidence, that it was issued in a case not authorized by law, it is utterly inoperative and void, and may be impeached collaterally in an action of ejectment. This doctrine, so manifestly just and reasonable, is fully sustained by the decisions of the highest courts in the country.

In the case of Stoddard v. Chambers, 2 Howard, 284, the land in controversy was reserved from sale at the date of the entry, survey and patent. Of the rights acquired under the patent, the Court said: On the above facts, the important question arises, whether the defendant’s title is not void. That this is a question as well examinable at law as in chancery, will not be controverted. That the elder legal title must prevail in the action of ejectment, is undoubted. But the inquiry here is, whether the defendant has any title, as against the plaintiffs. And there seems to be no difficulty in answering the question, that he has not. His location was made on lands not liable to be thus appropriated, but expressly reserved; and this was the case when Ms patent was issued. Had the entry been made, or the patent issued, after the 26th of May, 1829, when the reservation ceased, and before it was revived by the act of 1832, the title of the defendant could not be contested. But at no other interval of time, from the location of Bell until its confirmation in 1836, was the land claimed by Mm liable to be appropriated in satisfaction of a New Madrid certificate. No title can be held valid which has been acquired against law; and such is the character of the defendant’s title, so far as it trenches on the plaintiff’s. It has been argued, that the first patent appropriates the land, and extinguishes all prior claims of inferior dignity. But this view is not sustainable. The issuing of a patent is a ministerial act, which must be performed according to law. A patent is utterly void and inoperative, which is issued for land that had been previously patented to another individual. The fee having been vested in the patentee by the first patent, the second could convey no right. It is true, a patent possesses the highest verity. It cannot be contradicted or explained by parol; but if it has been fraudulently obtained or issued against law, it is void. It would be a most dangerous principle to hold, that a patent should carry the legal title, though obtained fraudulently or against law. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. The patent of' the defendant, having been for land reserved from such appropriation, is void.” The cases of Jackson v. Lawton, 10 Johnson, 23; Patterson v. Winn, 11 Wheaton, 380; and Polk’s Lessee v. Wendal, 9 Cranch, 87; and 5 Wheaton, 293, assert the same doctrine.

We are clearly of the opinion, that the patent vested no title in the legal representatives of Wilette, to the premises in controversy in this case. The Court, therefore, erred in admitting it in evidence.

The judgment is reversed, and the cause remanded.

Judgment reversed,.


text:
    Andrew Gray, Appellant, v. James McFadden, Appellee.
    APPEAL FROM PEORIA.
    A patent under the act of Congress of the 15th May, 1820, passed in relation to French Claims, at Peoria, could only issue to the claimant, or his legal representatives.
    This was an action of ejectment brought in the Peoria Circuit Court, to recover the possession of certain village lots in Peoria, being a part of the French Claims. The declaration and other pleadings are in the usual form. The action was brought against other parties by Mr. McFadden, but Gray was made defendant in their stead, he having admitted himself to be in possession of the premises, at the time of the commencement of the suit. At August term, 1850, of the Peoria Circuit Court, Kellogg, Judge, presiding, the cause was, by agreement, submitted to the Court for trial, whereupon the Court, after hearing the evidence, found for McFadden, and entered judgment accordingly.
    Gray brought this cause to this Court by appeal. This and the preceding case, turn upon the same point.
    0. Peters, E. N. Powell & T. L. Dickey, for Appellant,
    H. 0. Merrimah & N. H. Purple, for Appellee.
   Treat, C. J.

This was an action of ejectment brought by James McFadden, against Andrew Gray. It resulted in a judgment for the plaintiff. The premises in dispute were a part of French Claims, eleven, forty-one, and forty-two in Peoria—eleven and forty-one covering the same ground. The proof on the part of the plaintiff was the same as in the case of McFadden v. Ballance. For the facts, and the opinion of the Court, reference is here made to the report of that case, ante p. 317. That decision fully disposes of so much of this case as relates to lot forty-two. It was there held that the patent, under which the plaintiff claims title, was absolutely void as to that lot. And we hold that it was equally so as to lot forty-one. The patent had no sufficient basis. It was founded on the assumption, that Wilette was the settler within the purview of the act of the 3rd of March, 1823, and, consequently, that his legal representatives were entitled to the benefits of that act. That conclusion was unauthorized. It by no means follows, because Wilette settled upon and improved this lot, that his legal representatives were entitled to a patent therefor. As we have already said, in the former case, the secretary of the treasury clearly exceeded his authority, in causing a patent to issue to any other person than the claimant under the act of the 15th of May, 1820, or his legal representatives. It was not enough, that a person was a settler prior to the 1st of January, 1813, but he, or his legal representatives, must also have claimed the lot so settled upon and improved, to bring himself, or themselves, within the provisions of the confirmatory act. That act did not confirm any other claims, than those contained in the report of the register. And the confirmation operated exclusively to the benefit of the claimants, and their legal representatives.

No claim was ever made to lot forty-one, either by Wilette, or his legal representatives. It is true, that Pilette, in right of his wife, who was a daughter of Wilette, was a elaimantbut he did not claim in the character of a legal representative. The phrase “ the daughter of the late Francis Wilette,” was merely descriptive of the person. Pilette and his wife, as individuals, and not as the legal representatives of Wilette, were the claimants. If they were entitled to a patent, it should have been issued to them by name, and not to the legal representatives of another person. And this should have been the case, even if they had claimed the lot in the character of the representatives of Wilette. It was-clearly the duty of the secretary to direct the patents to be issued to the real claimants, or to their legal representatives. Under the rule adopted by him, if Wilette had left ten descendants, they could all now claim to hold under this patent: as tenants in common, although in point of fact, but one of their number ever interposed a claim to the lot, and that too, not on the behalf of suclb descendants generally, but for himself exclusively. Where a party made a claim under the act of 1820, and died either before the passage of the confirmatory act, or the issuing of the patent,, it might very properly issue to his legal representatives. But in. other cases, the patent ought to issue directly to the claimant.

The Court erred in permitting the patent to be read in evidence; and its judgment must be reversed, and the cause-remanded.

Judgment reversed.