« AnteriorContinuar »
in proportion to its acreage, and there is no 1 sted street to Sangamon street, a distance of presumption to that effect. On the contrary, three blocks, and levying a special assesssuch a presumption seems to us violent and ment on the property benefited. The proceedunnatural. Even if the mere land was of ing involved the condemnation of 35 feet uniform value for agricultural purposes, it fronting the street on each side for the diswould seem that the parcel which had the tance named. Appellant, as owner of sublot house and farm buildings upon it would be 7 in James Ward's resubdivision in block 39 more valuable than the other. It also ap in Carpenter's addition to Chicago, appeared pears that the part which belonged to Wilson and filed objections, and, having become the Hogg is back land, cut off from the highway. owner during the trial of sublots 8 and 9 in This fact would, or at least might, affect its said resubdivision, prosecuted the objections value. We need not, however, speculate on theretofore filed. The property of appellant these matters. It is sufficient to say that on sublot 7 is known as No. 260 West Ranapportionment should have been directed dolph street, and is improved with a threeaccording to values, and there is no finding | story brick building. The jury in their veras to what those values are. This error does dict awarded $2,021.25 as compensation for not render it necessary to reverse the judge the north 35 feet of said lot 7 and the private ment (under which we are informed a sale alley adjoining the same, taken for the imhas already been had) and to direct a new provement, and allowed $2,264 for the imtrial.
provements upon the premises. They assessThe rights of the parties will be sufficiently ed back $2,021.25 upon the balance of sublot protected by modifying the judgments of the 7 and of the private alley adjoining the same Appellate Division and of the Special Term, as special benefits, and assessed the sum of so as to direct that a reference be had to as $2,070 as special benefits upon sublots 8 and 9 certain and determine the relative values of in said resubdivision, and the private alley adthe land of Wilson Hogg and of Agnes Hogg, joining the same. The commissioners in their and that upon the coming in and confirmation report reported $314,103.70 as the amount of of the report of the referee the proceeds of benefits to property to be benefited by said sale bé apportioned according to such value. improvement, and also reported that there The appellant should recover his costs in would be no benefit to the public. this court.
It is insisted by the appellant: First, that
the question of public benefits should have GRAY, BARTLETT, HAIGHT, VANN, been submitted to the jury, and should not and WERNER, JJ., concur. O'BRIEN, J., have been determined by the court without a absent.
jury; second, that no resolution or ordinance
had been passed by the city of Chicago, proJudgment accordingly.
viding that the proposed widened portion of the street should become a market place, and
that therefore benefits predicated on the as(219 III. 133)
sumption that it would become a market place KALISH et al. V. CITY OF CHICAGO. were illegal; third, that the proposed im
(Supreme Court of Illinois. Dec. 20, 1905.) provement was a public and not a local im1. APPEAL-REVIEW-BILL OF EXCEPTIONS.
provement; fourth, that the damages allowed Where the record contains no bill of ex for improvements upon appellant's property ceptions, only errors apparent on the face of the are insufficient and contrary to the evidence; record can be reviewed. [Ed. Note.-For cases in point, see vol. 3,
and, fifth, that the assessments on appellant's Cent. Dig. Appeal and Error, 88 2473, 2479.]
property are excessive and contrary to the 2. EXCEPTIONS, BILL OF-INSERTION OF Doc
evidence. It is apparent that none of the obUMENTS.
jections thus made by the appellant are obDefendant, appealing from a special assess jections which arise on the face of the record, ment, cannot incorporate the bill of exceptions prepared by another property owner into his bill
and therefore they cannot be considered or of exceptions by reference.
reviewed by this court in the absence of a
proper bill of exceptions. Kelly v. City of Appeal from Superior Court, Cook County;
Chicago, 148 Ill. 90, 35 N. E. 752; Helmuth v. Theodore Brentano, Judge.
Bell, 150 III. 263, 37 Y. E. 230. Proceeding by the city of Chicago against
The only bill of exceptions, appearing in Louis P. Kalish and others. Judgment for
the record filed in this court by the appellant, plaintiff, and defendants appeal. Affirmed.
contains only the motion of appellant for a Guthman & Rothschild and John S. Stevens, new trial, a recital of the overruling of said for appellants. Robert Redfield and Frank motion and an exception thereto, and the Johnston, Jr. (Edgar Bronson Tolman, Corp. recital of an entry of judgment on the verCounsel, of counsel), for appellee.
dict and an exception thereto, and closes with
the following recital: “And forasinuch as all MAGRUDER, J. This is an appeal from other objections made by the said objector a judgment entered by the superior court of last named in the trial of this cause, together Cook county in a proceeding begun by appel with the ruling of the court thereon and the lee for the purpose of widening West Ran exceptions of said last-named objector there. dolph street in the city of Chicago from Hal- | to, together with all the evidence, oral and documentary, offered, received and heard on, by each property owner. Here, appellant such trial, as well as all instructions given was not a party to the appeal taken by and refused by the court therein, with the Berdel and Snyder, and we have neld in exceptions of said last-named objector there a number of cases that "the judgment is to, and all proceedings in said cause, not in effect several as to the property owners, otherwise appearing of record, do now suffi and one or more may appeal or prosecute ciently and fully appear of record in and by a writ of error without affecting the judge the certain bill of exceptions of the certainment against the others." Kelly v. City of objectors, Emily A. Snyder and Charles E. | Chicago, 148 Ill. 90, 35 N. E. 752; Phelps Berdel, signed and sealed and filed in this v. City of Mattoon, 177 Ill. 169, 52 N. E. cause January 28, 1905, and now of record .288; Goldstein V. Village of Milford, 214 herein; the said objector, Louis P. Kalish, Ill. 528, 73 N. E. 758. Inasmuch as each tenders this further bill of exceptions herein, judgment is several as to each property owner, and prays that the same may be signed and and inasmuch as each property owner may sealed by the judge of this court, pursuant take a separate appeal, and separate appeals to the statute in such case provided; which have been taken in the case at bar, it folis done accordingly this 6th day of February, lows that the trial judge did not seal and A. D. 1905.” Berdel and Snyder were de- sign the bill of exceptions prepared by Berdel fendants with the present appellant in this and Snyder for any property owners except proceeding in the trial court. By the above Berdel and Snyder, and the document so recital appellant attempted, in his bill of ex signed constituted a bill of exceptions for ceptions entitled "Additional Bill of Excep Berdel and Snyder, and no one else. As tions," to adopt as his own the bill of excep to appellant, who did not join in the procurtions of Berdel and Snyder. The bill of ex- | ing and settling of that bill of exceptions, ceptions, however, of Berdel and Snyder does it is as to him merely an unofficial document, not appear in the record of appellant filed on having no sanction of the trial judge. The this appeal. There is nothing in this record appellant cannot incorporate into his bill of to bring the bill of exceptions of Berdel and exceptions by reference only a transcript Snyder before this court in the case at bar, of the proceedings of the trial in the lower except the above recital in the additional court, described as the bill of exceptions bill of exceptions filed by appellant and em- of Berdel and Snyder, which does not apbodied in the present record. The question pear in any part of the record on the presthen arises whether, in such a proceeding as ent appeal. This court has decided that a this, one property owner, appealing from a document or instrument cannot be incorpojudgment against his property, can, without rated in a bill of exceptions by a mere embodying a separate bill of exceptions in his reference thereto. City of Chicago v. South own record, adopt by reference the bill of Park Com’rs, 169 Ill. 387, 48 N. E. 680; exceptions prepared by another property own Meissner v. People, 169 Ill. 530, 49 N. E. er seeking to review a judgment against his 568; Lindgren v. Swartz, 49 Ill. App. 488; property.
Hennessy v. Metzger, 50 Ill. App. 533; Dick Section 56 of the act in regard to local v. Mullins, 128 Ind. 365, 27 N. E. 741. Under improvements provides, with reference to the authorities thus referred to, the appeljudgments of confirmation, as follows: "Such lant could not incorporate the instrument, judgments shall have the effect of several identified as the bill of exceptions of Berdel judgments as to each tract or parcel of land and Snyder, by reference in his own bill assessed, and no appeal from any such judg- of exceptions, even if the bill of exceptions ment or writ of error shall invalidate or delay of Berdel and Snyder were contained in the judgments, except as to the property some other part of their own record than concerning which the appeal or writ of error! the bill of exceptions. Here, however, it is taken.” 4 Starr & C. Ann. St. Supp. 1902, does not appear in any part of appellant's p. 182, c. 24. Section 95 of the act in regard | own record, but must be looked for in the to local improvements is as follows: "Ap record of some other cause pending in this peals from final judgments or orders of any court, and therefore cannot be incorporated court, made in the proceedings provided for by mere reference. by this act, may be taken to the Supreme The rule is that, where no bill of exCourt of this state, in the manner provided ceptions appears in the record, only such by law, by any of the owners or parties errors as appear upon the face of the record interested in lands. taken, damaged or as proper can be 'considered. Helmuth v. Bell, sessed therein, and the court may allow 150 Ill. 263, 37 N. E. 230; Mallers v. Whitsuch an appeal to be taken jointly and upon tier Machine Co., 170 111, 434, 48 N. E. 992. a joint bond, or severally, and upon several In Frawley v. Hoverter, 36 Minn. 379, 31 bonds, as may be specified in the order al N. W. 356, it was said by the Supreme Court lowing the same." Id. pp. 201, 202. It thus of Minnesota: “It is conceded that as to appears that in a condemnation and special Kreider the judgment must be reversed, but assessment proceeding of this kind the judg. no error as to the other defendants appears ment as to each tractor parcel of land is upon the record. They cannot rely to show a several judgment, and several and separate such error on the case and bill of excepappeals may be taken from each judgment tions, for it was not settled on their behalf, and it purports only to set forth the evi- , 5. CORPORATIONS-OFFENSES - UNAUTHORIZED dence and rulings on the trial of the issue ASSUMPTION OF INCORPORATION between the plaintiff and Kreider. The case
The mere use of a corporate name by a
concern, when unattended with any fraudulent against the other defendants could have no intentions or consequences, is not a violation of place in a case and bill of exceptions pro the Criminal Code (1 Starr & C. Ann. St. 1896, posed and procured to be settled by him
p. 1332, par. 368), making it an offense for any
unincorporated association or company to put alone, and in wbich they did not join.
forth a sign or advertisement under a corporate They could not be bound, nor, as to them, name for the purpose of soliciting business. could the plaintiff be bound by Kreider's 6. SAME-VIOLATION OF STATUTE-EFFECT. case and bill of exceptions." Section 59 of The Criminal Code (1 Starr & C. Ann. St.
1896, p. 1332, par. 368), imposing a fine on the practice act provides as follows: “If,
any unincorporated association or person who during the progress of any trial in any
assumes a corporate name for the purpose of civil cause, either party shall allege an ex soliciting business, does not invalidate contracts ception to the opinion of the court, and
made by persons guilty of the prohibited of
fense, and a violation of the statute can be atreduce the same to writing, it shall be the
tended with no other consequences than the induty of the judge to allow said exception, fliction of the penalty therein prescribed. and sign and seal the same, and the said
Original petition for mandamus by the exception shall thereupon become a part of
people, on the relation of F. R. Power and the record of such cause." 3 Starr & C.
others, against James A. Rose, Secretary of Ann. St. 1896, p. 3065, C. 110.
State. Denied. Inasmuch as there is no bill of excep. tions embodying the rulings of the court
This is an original petition for mandamus, below and the evidence introduced on the
filed in this court on June 8, 1905, by the trial, the points urged by the appellant in
people, upon the relation of F. R. Power, Patfavor of the reversal of the judgment in
rick L. Touhy, F. G. Crary, and F. A. Anthis case are not before us, and cannot be
drews, against James A. Rose, Secretary of considered. Frank v. City of Chicago, 216
State, praying that a writ of mandamus isIll. 588, 75 N. E. 213. Accordingly, the judg.
sue, directed to said Rose, as Secretary of ment of the superior court of Cook county
State, commanding him as hereinafter set is affirmed.
forth. Rose, as Secretary of State, filed an Judgment affirmed.
answer to the petition. The petitioners or relators above named filed a demurrer to
the answer of the Secretary of State. The (219 III. 46)
case comes before this court upon the issue PEOPLE ex rel. POWER et al. v. ROSE,
made by the demurrer to the answer. The Secretary of State.
petitioners, who are of Chicago, in Cook
county, allege in their petition that on Feb(Supreme Court of Illinois. Dec. 20, 1905.)
ruary 23, 1905, one of the petitioners, Patrick 1. TRADE-NAMES-PROTECTION-INJUNCTION.
L. Touhy, and William H. Peacock and F. T. Where a company has conducted business
Donovan, acting as commissioners under the for many years under a trade-naine by which it has become well known, it may enjoin the use
corporation act of Illinois and the amendof such name by other parties who intend by ments thereto, filed in the office of the Secresuch use to deceive the public and to fraudu
tary of State at Springfield a statement or lently obtain the business of the company. [Ed. Note.--For cases in point, see vol. 46,
application for a license to open books of Cent. Dig. Trade-Marks and Trade-Names, 88
subscription to the capital stock of a com64, 86, 110.]
pany to be known as or named “United States 2. MANDAMUS-GROUNDS_ISSUANCE OF CER Express Company," with a capital stock of TIFICATE OF INCORPORATION.
$2,500, to be divided into 25 shares of $100 Mandamus will not lie to compel the Sec
each; that the object for which the company retary of State to issue a certificate of incorporation under a name the use of which may
was to be formed was to receive, carry, and be enjoined by an existing company which has transport for hire packages, large or small, established its business under that name. and to do a general express business, the life of 3. SAME-DOUBTFUL CASES.
the company to be 99 years, with its princi. In mandamus proceedings to compel the
pal office in Chicago; that the said statement Secretary of State to issue a certificate of incorporation under the name of an existing con
or application was duly signed and acknowlcern, which is claimed to be a foreign corpora edged according to law by the commissioners, tion, and which has not complied with 4 Starr
and the fee of $30, as required by law, was on & C. Ann. St. Supp. 1902, p. 310, par. 53, imposing certain requirements upon foreign cor
said day paid to the Secretary of State, who porations desiring to do business in the state, did on February 23, 1905, issue a license to the writ will not be granted, where it is doubt said commissioners, authorizing them to open ful from the record whether the existing con
books of subscription to the capital stock of cern is a foreign corporation or a mere partnership.
United States Express Company, which said 4. JOINT-STOCK COMPANIES-CORPORATIONS
license is signed by the Secretary of State, PARTNERSHIPS.
and sealed with the great seal of state, copy A joint-stock company is a partnership, and
being attached to the petition ; that the comnot a corporation, although it possesses many of the characteristics of a corporation.
missioners opened books of subscription for[Ed. Note.For cases in point, see vol. 29,
the capital stock of the United States Express Cent. Dig. Joint-Stock Companies, $ 1.)
Company, and the stock was all subscribed for, to wit, Patrick L. Touhy, 1 share, $100; | tice may require. The said petition was F. R. Power, 23 shares, $2,300; F. G. Crary, sworn to by Patrick L. Touhy, one of the 1 share, $100; that thereafter the commis | commissioners, on April 18, 1905. sioners, on March 6, 1905, at Chicago, at 2 The answer of the respondent, the Secreo'clock p. m., convened a meeting of the sub-l tary of State, was filed on June 14, 1905, scribers of stock, pursuant to notice required and alleges that the court is without jurisby law, for the purpose of electing a board of diction to hear and determine the matters directors, etc., which notice was deposited in | set out in the petition; that respondent does the post office, properly addressed to each sub not deny any of the allegations of fact in scriber, 10 days before the time fixed for the the petition, except that he has no knowlmeeting; that the subscribers met at the time edge, and therefore neither admits nor deand place specified in the notice, and proceed nies the allegations respecting the opening ed to elect directors, and that the following of books for subscription to the capital persons were duly elected for the term of stock aforesaid, or whether the stock was one year: Patrick L. Touby, F. R. Power, fully subscribed, or whether a meeting of and F. A. Andrews; and that the post-office the subscribers was convened and held acaddress of said company is at 171 Washington cording to law, or whether a board of distreet, in Chicago; that thereupon the com rectors was elected as alleged. The answer missioners made a report of their acts and denies that it is the legal duty of respondent doings as such to the Secretary of State, to issue a final certificate of incorporation stating therein that they opened books of to said United States Express Company, and subscription, that the stock was fully sub further denies that said petitioners, or any scribed, and giving a copy of said subscription, of them, have a right to incorporate under and that pursuant to notice, copy of which is the laws of Illinois under the name of set forth, the subscribers to the stock met “United States Express Company.” The and elected directors as above stated, and also answer further states that, when the license stating in said report that the post-office ad. was issued out of respondent's office, it was dress of said company was No. 171 Washing done by one of his clerks, who supposed ton street, room 303, in Chicago, which said at the time that the parties desiring to report was on March 6, 1905, sworn to before incorporate under the said name were the a notary public by said commissioners. The same persons interested in the company herepetition further states that the said report inafter mentioned, known as the “United was mailed to the Secretary of State, and by States Express Company," and that no queshim received at his office in Springfield on tion was made at the time concerning the or about March 9, 1905 ; that there is no com issuing of said license; that subsequently pany chartered under the laws of Illinois to thereto respondent was informed that the do business in the name of United States Ex: parties to whom the license had been issued press Company, and that there is no foreign were in no wise interested in the United company or corporation licensed to do busi. | States Express Company hereinafter menness in Illinois in the name of United States tioned; "that there is now in existence a Express Company; that when the Secretary joint-stock company called 'United States of State received said report, being in all Express Company,' organized and doing busirespects as by law required, it was his legal ness under the common law and statute law duty to file the same in his office, and issue of the state of New York, and that the the final certificate of incorporation of said United States Express Company here recompany, yet that the said Rose, so being ferred to will hereinafter be mentioned as such Secretary of State, wholly refused and the old United States Express Company"; still refuses to file said report and to issue that "said old United States Express Comthe final certificate of incorporation of said pany was organized, as a joint-stock asso, company, as required by the statute; that the ciation or joint-stock company, on the 22d said Rose, as such Secretary, has returned day of April, 1854, in the state of New York, said report to petitioner, and refused and and that said old United States Express refuses to complete the final organization of Company thereupon entered upon the transsaid company by receiving and filing said re action of a general express business throughport, and issuing the final certificate of in out the United States, and has been ever corporation, by means whereof the petitioners since engaged in said business, and is now are denied the right of becoming a corpora engaged in the same in every state and tion under the name of "United States Ex territory of the United States, as well as press Company," to which they are justly and in the Dominion of Canada, and in foreign lawfully entitled. Petitioners therefore pray countries; that the said old United States a writ of mandamus, directed to said Rose, Express Company carries on its business Secretary of State, commanding him forth- | upon various railroads and steamship lines with to receive the said report of said com- | throughout the United States and Canada, missioners, and to file said report, and to is- | and also in foreign countries; and that its sue a certificate of the complete organization | business in a general way consists of the of said corporation, and that such further transporting and delivering of large and order may be entered in the premises as jus- small packages of freight, merchandise, valu. able documents, papers, and moneys, and them, under said name 'United States Exthat it has been engaged in said business press Company,' is illegal and unauthorized continuously ever since the time of its or- by law; that the injunction heretofore grant. ganization as aforesaid; that its name is ed in this cause on the 21st day of July, placed upon express cars on various rails | A. D. 1883, to restrain the said defendants, roads in the United States, and upon its
their counselors, attorneys, solicit. wagons used to transport the merchandise, ors, trustees, and agents, and each and every papers, and moneys above referred to, and one of them, from carrying out their purthat said old United States Express Com pose of organizing a corporation under the pany is possessed of and operating many laws of the state of Illinois, under the name hundreds of wagons by means of thousands of the United States Express Company, or of horses owned by it, and that the name from transacting or carrying on an express ‘United States Express Company' is well business either in Illinois, or elsewhere, known throughout all of the United States under the name of the United States Exand foreign countries as a company engaged
press Company, either as individuals or as in the transportation and delivery of mer- | a corporation, be, and the same is, made chandise, valuable packages, and money, for hereby perpetual in the premises, according hire.” The answer further says that sub to the prayer of the bill. And it is further sequent to the issuance of said license, and ordered, adjudged, and decreed that the prior to the time of his receiving the re plaintiff recover costs against the defendport of the commissioners, he was informed, ants, to be taxed by the clerk under the and believes it to be true, that the use by
direction of the court." The answer further any persons of said name, whether asso says that the petitioners are not, and prior ciated as incorporators or as copartners or to the filing of the said bill were not, nor as individuals, would be a fraud upon the was any of them, engaged in the express old United States Express Company; that business; that the incorporation of said his attention has been called to the fact that persons under the name “United States Exin the month of March, 1883, there was press Company" is a new venture, and, so filed in the United States Circuit Court for far as the objects of said incorporation relathe Southern District of Illinois a certain tive to the doing of an express business bill of complaint by Thomas C. Platt, a citi are concerned, . it is a matter concerning zen of the state of New York and president the future, and it is not intended that said of the United States Express Company (that corporation shall take over or continue any is to say, the old United States Express existing express business; that respondent Company), upon whose behalf he filed said then believed and now believes that petibill, by virtue of the articles of association tioners had no right to become incorporated of said joint-stock company and by virtue under the laws of Illinois as the United of the laws of the state of New York, against States Express Company, and for these reaOscar C. St. Clair and others, citizens of sons has refused, and does refuse, to issue the state of Illinois, setting forth that the a final certificate of incorporation to the defendants claimed to have been organized | said persons as “United States Express under the laws of Illinois as the United Company.” States Express Company, and that the use The demurrer, which was filed to the anby them of the name “United States Ex swer on June 17, 1905, is both general and press Company” would be a fraud upon the special, and sets forth the following causes rights of the old United States Express Com of demurrer to the answer: First. The anpany, and that the use of such name, even swer admits all the allegations of fact in the although a corporate name, was illegal, and petition which it is necessary to prove; the said bill prayed that the defendants might license issued by the Secretary is under his be forever enjoined and restrained from hand and the great seal of the state of Illithe use of the said name of United States | nois, and it is not claimed that any deception Express Company; that on May 31, 1884, was practiced by plaintiff's in obtaining it; a decree was entered in said cause as fol the sworn report of the commissioners is all lows: "This cause came on to be heard at the law requires as to the subscription of this term, and was argued by counsel; and stock, election of directors, etc.; that the thereupon, upon consideration thereof, it was admitted facts make out a case for plaintiffs; ordered, adjudged and decreed as follows, that the new facts set up are not sufficient to viz.: That the organization of an express bar the action; that the United States Excompany by the defendants, Oscar C. St. press Company, organized under the laws of Clair, Elon P. House, Charles A. Clowes, the state of New York, is either a corporaand United States Express Company, for the tion, or it is not a corporation; if it is a purpose of carrying on an express business, corporation, it has not complied with the under the laws of the state of Illinois, and law of this state in relation to foreign corunder the name of the ‘United States Ex porations doing business in the state; that press Company,' is illegal and unauthorized it is not licensed to do business in this state; by law; and that the conduct of an express and, if it is not a corporation, the rourt business by said defendants, or either of had no jurisdiction in the case of Thomas