Imágenes de páginas
PDF
EPUB

submitted to a medical examination with a view to obtain such insurance from said Equitable Life. This evidence the court declined to admit. In this we are of the opinion the court committed reversible error. The appellee was appointed agent of the New York Life for a special purpose. According to the theory of the appellant, he endeavored to effect that purpose by obtaining insurance in said company upon the life of Braun for $100,000. The company declined to accept that proposition and made a counter one to issue upon Braun's life $10,000 of insurance. The appellee declined to present to Braun that proposition, and thereupon abandoned the attempt to effect insurance upon the life of Braun in the New York Life and all his rights under his appointment as agent. If appellee, soon after bis resignation as agent of the appellant, attempted to effect insurance upon the life of Braun in an insurance company other than appellant's, such fact, we think, would be wholly inconsistent with the view that he was then endeavoring to effect insurance upon the life of Braun in appellant's company and considered the contract as to Braun still in force, but would be in entire harmony with the view he abandoned the attempt to effect said insurance in appellant's company and had canceled his appointment as agent of said company and released all his rights to commissions by virtue of said appointment.

The testimony of Braun, had it been admitted, would therefore have tended to corroborate the witnesses of appellant whose testimony tended to show such an abandonment, and to support the defense by appellant that appellee, at the time he resigned as agent, severed his connection with the company and waived his right to commissions under said contract, and should have been admitted.

The appellant has urged other grounds of reversal. The questions thus presented are not likely to occur on another trial, and as the case must be reversed for the reasons indicated we have not deemed it necessary to consider those questions.

The judgments of the appellate and circuit courts will be reversed, and the cause remanded to the circuit court for a new trial. Reversed and remanded.

[blocks in formation]

amounts due under several installments of a special assessment, the judgment of confirmation of such assessment, where the property was subject to the assessment and the court had jurisdiction to confirm the assessment, cannot be collaterally attacked.

Appeal from Circuit Court, Cook County; Lockwood Honore, Judge.

Petition by the people, on relation of the commissioners of Lincoln Park, for a writ of mandamus against the board of education of the city of Chicago. From an order granting the writ, defendant appeals. Affirmed.

This is a petition for mandamus, filed on February 1, 1905, in the circuit court of Cook county, by the people, upon the relation of the commissioners of Lincoln Park, against the board of education of the city of Chicago for a writ of mandamus to be directed to the said board, commanding it to certify in its next annual budget or estimate, to the proper officers of the city of Chicago, for sufficient funds to provide for the payment of $3,684.71, the amount of money alleged to be due the relators on January 30, 1905, by reason of the failure of the appellant to pay the five installments of special assessment warrant No. 196,257, for the improvement of Diversey avenue boulevard, in Chicago, from Clark street to the Chicago river, and the five installments of special assessment warrant No. 203,949, for the electric lighting of said boulevard, as said assessments were levied against eight lots, of 225 feet frontage each, abutting upon Diversey Boulevard and owned and occupied by the appellant for a public school building and playground. The appellant, the board of education of the city of Chicago, filed a demurrer to the petition. This demurrer was overruled, and the appellant elected to stand by its said demurrer, whereupon an order was entered directing a peremptory writ of mandamus to issue, commanding the board in accordance with the prayer of the petition. The present appeal is prosecuted from such order or judgment.

The petition, after reciting that the appellee, the commissioners of Lincoln Park, was a corporation created under an act of the Legislature, and after reciting that the board of education was created by an act of the Legislature, etc., alleges that the appellee, petitioner herein, being the commissioners of Lincoln Park, under the powers conferred upon it by the Legislature, and with the consent of the corporate authorities of the towns within which Lincoln Park is situated, is empowered to levy special assessments for the purpose of making local improvements on the various boulevards and parkways within its jurisdiction; that on January 7, 1899, it filed with the consent of the corporate authorities of the town of Lake View and under the name of said town for the use of the appellee a petition in the superior court of Cook county in cause No. 196,257 for the improvement of Diversey avenue boulevard from Clark street to the Chicago river; that a report or assess

ment roll was prepared and filed in the said cause by the commissioners appointed for that purpose by the court, and the court, by judgment entered of record on September 20, 1899, confirmed said assessment roll in all particulars; that on January 15, 1900, appellee filed, with the consent of the corporate authorities of the town of Lake View, and in the name of said town for the use of said commissioners in the superior court of Cook county in cause No. 203,949, a certain other petition for a local improvement, consisting of an installment of an electric lighting system on said Diversey avenue boulevard; that a report or assessment roll was prepared and filed in said cause by the commissioners appointed for that purpose by the court, and said assessment roll was confirmed by the judgment of said court in all particulars on May 5, 1900; that said property, consisting of eight lots, was used by the board of education for a public school building and playgrounds and abuts upon Diversey avenue boulevard; that the said boulevard was selected and taken in accordance with the statutes by said park commissioners as a boulevard, several years before the levying of the said assessments; that all things required by the statute for the levying of said assessments were performed in accordance with such requirements; that due notice was given to the board of education of the filing of said petitions; that no objection thereto was ever made or filed by the board of education in either of said causes; that upon the confirmation of said assessments the appellee caused the boulevard to be improved in accordance with the ordinance and specifications adopted for that purpose, and such improvements have been for a long space of time fully completed and opened for use, and said public school building, and the board of education, derive a great and lasting benefit from said improvements; that warrants were duly issued by the clerk of the superior court, directed to the county collector, authorizing him to collect the said special assessment on warrant No. 196,257, and that there were due certain amounts upon the first, second, third, fourth, and fifth installments, with interest, etc.; that upon the falling due of the installments on warrant No. 203,949, the appellant refused to pay the collector the amounts levied against said property for said assessment, and that certain amounts are due for the first, second, third, and fourth installments, with interest; that the fifth installment of said last-named warrant will not fall due until January 5, 1905; that the total amount due, exclusive of interest, including the said fifth installment, is $3,122.64; that a deficiency existed in both of said special assessments for the improvement of said Diversey Boulevard, after its completion, for a large amount; that the premises upon which said special assessments were levied are described in the books of the board of education as "school tax fund property," "being no part

of section 16 or acquired in any way from funds derived from that source"; that the board, appellant herein, has never paid said special assessments levied against its property, although requested to do so, and refuses to pay the same; that the board is liable for special assessments levied on its property and should pay the same out of funds obtained by said board in the manner provided by law; that annually it is the duty of the board of education to submit to the proper officer of the city of Chicago its estimate of the amount of funds needed for the ensuing year, stating in said estimate the items for which said funds are needed, but that said board, in violation of its duty, has refused, and still refuses, to include in said estimate any items or sums necessary for the payment of said special assessments; that there was due on warrant No. 196,257 on January 30, 1905, including interest and costs, as in the judgment of confirmation provided, the sum of $3,091.42, and upon warrant No. 203,949 on the same date, including interest and costs, as in said judgment provided, the sum of $593.29, making a total then due to appellee of $3,684.71.

James Maher and Angus Roy Shannon, for appellant. Frank Hamlin (Byron Boyden, of counsel), for appellee.

MAGRUDER, J. (after stating the facts). The brief of the appellant in this case seems to be an effort to induce this court to overrule the decision made by it in the case of City of Chicago, for Use of Schools, v. City of Chicago, 207 Ill. 37, 69 N. E. 580. After a careful consideration of the argument of counsel for appellant, we see no reason for retreating from the views expressed in the decision in that case. Substantially the only question there involved, which is also the only question here involved, is whether or not the property assessed, being school property, and not a part of any section 16, or acquired in any way with funds derived from that source, is subject to special assessment. We held in the case referred to, that such school property was subject to special assessment.

The principal points made by the appellant in the case at bar are that the owner of school property in the city of Chicago is the state of Illinois; that to confirm a special assessment against any of said property involves a suit at law in reality against the state, though it is not nominally made a party of record; that the law prohibits the suing of the state; that the board of education of the city of Chicago is a governmental state agency, and no authority of law exists for suing the same; that all school property within the jurisdiction of the board must under the Constitution be used for public school purposes, and that to permit it to be subject to special assessment for boulevard and park improvements world be to allow its use for other than such purposes; that the

charge and control of school property within the limits of the city of Chicago rest with the board of education, and to permit the same to be subject to special assessment for park and boulevard purposes would necessitate the taking of the charge and control of the same out of the hands of the board; that all property of every description under the charge and control of the board must be used for public school purposes, and there is no authority of law for levying any tax under any law of this state, applicable to the public school system within the city of Chicago, the proceeds of which can be expended for purposes other than public school purposes, and to permit this special assessment of public school property would involve the use of public school moneys for other than public school purposes; and that therefore, for these reasons, public school property is exempt from the special assessments levied in this proceeding.

Substantially all the questions thus presented for our consideration were determined in the case of City of Chicago v. City of Chicago, supra, against the contentions of the appellant, and we see no reason for a reargument or rediscussion of the same. The only difference between the case at bar and the case already decided is the fact that in the case referred to the city of Chicago levied the special assessment there involved, while, in the case at bar, the special assessments have been levied by the commissioners of Lincoln Park. The principles announced in the decided case are the same as those here involved, and are as well ap plicable to these assessments, levied by the Lincoln Park commissioners, as to the other assessments levied by the city of Chicago. The commissioners of Lincoln Park have power to levy assessments by and with the consent of the corporate authorities of the town, within which said park is situated, (3 Starr & C. Ann. St. 1896 [2d Ed.] p. 2861, c. 105, par. 29; Jones v. Town of Lake View, 151 Ill. 663, 38 N. E. 688; Halsey v. Town of Lake View, 188 Ill. 540, 59 N. E. 234). The Lincoln Park commissioners have power conferred upon them by the Legislature of the state to levy special assessments for the purpose of making local improvements on the various boulevards and parkways in their jurisdiction with the consent of the corporate authorities of the towns within which the park is situated. And it is so alleged in the petition. In City of Chicago v. City of Chicago, 207 Ill. 37, 69 N. E. 580, we said (page 45 of 207 Ill., and page 581 of 69 N. E.): "It is also insisted by appellant that the payment of this special assessment out of the school funds would be a diverting of said funds from the object for which they were created. We do not see how that position can be maintained. A special assessment may be levied for the purpose of paving streets, putting down sidewalks, putting in curbing, or for sewer pur

poses, all of which are, in theory, for the benefit of the property abutting on the line of the improvement. Undeniably all of these Improvements are of great benefit, if not of actual necessity, to a public school, and from the most of them no property derives more benefit than does that of the board of education. They are as necessary to the practical use of the property as the furnishing of heat, light, and air. Special assessment for such improvements is but a method, of applying the funds of the school district for the benefit of its schools, and is legal and proper."

We are unable to say that the improve ment of Diversey avenue boulevard by the grading, curbing, filling, paving, and lighting of the same is not a benefit to the public school property here involved, which abuts upon said boulevard. It is true that the boulevard may be wider and better pav. ed and better lighted than an ordinary street, but it cannot be said that the only object of the assessments here involved is to beautify and improve the boulevard as a driveway. The improvements in question, in addition to the beautifying of the boulevard as a driveway, benefit the property assessed for practical use. The Legislature delegated to the park commissioners the power to pave and improve the streets, taken by them to be used as boulevards in connection with the park system, in the same manner as the city of Chicago is empowered to improve its streets. The boulevard here in question was so taken by the commissioners of Lincoln Park, and under these proceedings was improved by curbing, filling, grading, paving, and lighting, in the same manner as other streets are improved. In City of Chicago v. City of Chicago, supra, we held that such a suit as this was not against the state of Illinois, using the following language in that case (page 44 of 207 Ill., and page 581 of 69 N. E.): "We do not think this is a suit against the people of the state of Illinois, nor do the lands belong to the people of the state of Illinois. The title thereto is in the city of Chicago in trust for the use of the schools in that city, and any interest which the people may have in the lots is confined to the people of the city of Chicago, rather than to the whole state of Illinois. Our statute expressly provides that boards of education may sue and be sued, and while it is contended that there is no such express provision with reference to the board of education of the city of Chicago, yet we think the power to sue and be sued may be implied from the act, and that the suit in question is in reality a suit against said board of education, rather than against the people of the state of Illinois." In the case referred to, it was also distinctly held that exemption from taxation does not exempt from special assessments; and that school property, not being a part of section 16 of the township nor derived therefrom, is sub

ject to special assessment, whether occupied for school purposes, vacant, or occupied by buildings from which the school receives rent; and that the payment of a special assessment against school property for improvements of benefit to the property is a proper method of applying the funds of a school district for the benefit of its schools.

It is to be noted that this is a petition for mandamus against the board of education to compel it to pay the judgments of confirmation already rendered. The proceeding is therefore a collateral one, and the validity of the judgments of confirmation cannot be here questioned, unless it be shown that the court rendering them was without jurisdiction. Inasmuch as the school property was subject to special assessment in the manner already stated, the court which rendered the judgment of confirmation had jurisdiction. It is alleged in the petition that no objection, such as is here urged, was made or filed by the board of education in either of the special assessment proceedings hereinbefore referred to. This allegation is admitted by the demurrer to be true. As the board did not make such objections in the original assessment proceeding, it is too late to do so in this collateral proceeding.

For the reasons above stated, we are of the opinion that the court below decided correctly in sustaining the demurrer to the petition. Accordingly, the judgment of the circuit court of Cook county is affirmed. Judgment affirmed.

(219 Ill. 64)

same

CARROLL COUNTY v. DURHAM. (Supreme Court of Illinois. Dec. 20, 1905.) .. SHERIFFS COMPENSATION-RIGHT TO FEES. Const. 1870, art. 10, § 9, provides that sheriffs shall receive as the only compensation for their services salaries to be fixed by law, and that all fees and emoluments above the amount of their salary shall be paid into the Section county treasury. 10 of the article requires the county board to fix the compensation of county officers. Hurd's Rev. St. 1903, c. 53, §§ 51, 52, make it the duty of the sheriff to report all fees and expenses of his office and provide for the disposition of the balance in his hands and the auditing of his books by the county board. Held, that the fees of the sheriff's office do not belong to the sheriff, either individually or officially, but merely constitute a fund from which he may deduct his salary and pay the expenses of his office, and the balance over and above such salary and expenses belong to the county, and should be paid over to the county treasurer.

2. JURY-SUMMONING TALESMEN-APPOINTMENT OF SPECIAL BAILIFF.

Under Hurd's Rev. St. 1903, c. 78, § 13, authorizing the court to appoint a special bailiff to summon talesmen after the exhaustion of the regular jury panel upon objection to the sheriff being made by either party, the court may select any person, whether an officer or not, to summon the talesmen, and the fact that the person selected is acting as constable at the time of his selection makes no difference in the duties to be performed by him or the compensation to be paid him.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, § 273.]

--

SUMMONING

3. SHERIFFS AND CONSTABLES · JURY-COMPENSATION OF SUBSTITUTE. Hurd's Rev. St. 1903, c. 53, § 19, prescribes the fees of sheriffs for summoning jurors. Section 41 of the same chapter provides that a constable shall receive $2.50 per day for each day's attendance in the circuit court. Chapter 78, § 13, provides for the appointment of a special bailiff to summon talesmen, where the sheriff is disqualified by objection of a party. Held that, where a constable is appointed as special bailiff to summon talesmen, his compensation is to be fixed by the court at a just and reasonable amount in view of the time employed and his traveling expenses, and he is not entitled to the fees allowed by law to a sheriff for that service.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sheriffs and Constables, § 52.]

Appeal from Appellate Court, Second District.

Action by George Durham against the county of Carroll. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Reversed.

At the trial of a certain criminal case in the circuit court of Carroll county the regular panel of jurors was exhausted by reason of challenges thereto. The court ordered a special venire to be issued for 50 jurors to fill the panel for the trial. Objection was made by the defendants to the service of this venire by the sheriff, and the appellee, George Durham, was appointed as a special bailiff by the court for this purpose. At the time of appellee's appointment he was a regularly elected, qualified, and acting constable in and for the township of Woodland, in said county. He worked two days and served 50 jurors, for which he made a return, charging 50 cents for each man served and 5 cents per mile for 506 miles traveled, making a total of $50.30. This amount the county board refused to pay, and appellee brought an action of assumpsit for the same. After the commencement of the suit a tender of $22.05 was made, being two days' pay, at $2.50 per day, $7.05 costs, and $10 expenses. A plea of the general issue, together with a special plea of tender, were filed to appellee's declaration. A demurrer was filed to these pleas and sustained by the court. A plea of the general issue was then filed, together with notice of the tender. Upon a trial before the court and a jury judgment was rendered against appellant for $50.30, which has been affirmed by the Appellate Court, and a further appeal has been prosecuted to this court.

Franklin J. Stransky, for appellant. Ralph E. Eaton, for appellee.

WILKIN, J. (after stating the facts). The errors assigned question the ruling of the court in holding the county liable for the amount claimed. Section 9 of article 10 of the Constitution of 1870 provides that sheriffs shall receive as the only compensation for their services salaries to be fixed by law, which shall be paid only out of the fees of the office actually collected, and

all fees, perquisites, and emoluments above the amount of their salary shall be paid into the county treasury. Section 10 of article 10 of the Constitution provides that the county board shall fix the compensation of all county officers, with the amount of clerk hire and other expenses, and in all cases where fees are provided for said compensation shall be paid only out of, and shall in no instance exceed, the fees actually collected, and all fees by them received in excess of their said compensation shall be paid into the county treasury. Sections 51 and 52 of chapter 53 (Hurd's Rev. St. 1903, pp. 968, 969) makes it the duty of the sheriff to report all fees and expenses, in detail, on the 1st days of June and December each year, and provides for the disposition of the balance in his hands and the auditing of his books by the county board. Section 19 of chapter 53 (Hurd's Rev. St. 1903, p. 957) fixes the fees of sheriffs for summoning each juror, in counties of the first class, at 50 cents, together with 5 cents mileage each way. The above are the sections of the law in effect at the time appellee was appointed as special bailiff. The duly elected and acting sheriff of Carroll county was subject to the above provisions of the law. His salary had no doubt been fixed by the county board, together with his allowance for deputy hire and other necessary expenses of his office. He had no right to the fees of his office. They did not belong to him individually or officially. They merely constituted a fund out of which he had a right to deduct his salary and pay the expenses of his office, which had been previously determined by the county board. The balance of the fees, if any, belonged to the county, and it was his duty to pay them over to the county treasurer, and they then became available for other county expenses. People v. Foster, 133 Ill. 496, 23 N. E. 615; County of La Salle v. Milligan, 143 Ill. 321, 32 N. E. 196.

At the time of the trial of the criminal case in the circuit court out of which this litigation grew the sheriff, for some reason unimportant here to state, was disqualified to summons a jury. Section 13 of chapter 78 (Hurd's Rev. Stat. 1903, p. 1145) provides that, when the regular panel of jurors shall be exhausted, the court may direct the sheriff to summons a sufficient number of persons to fill the panel for the pending trial; but, upon objection of either party to the cause to the sheriff summoning the persons to fill the panel, the court shall appoint a special bailiff to summons such jurors. The appellee was selected by the court for this purpose. It will be observed that the statute is silent as to who this person thus selected shall be, except that the same person shall not be appointed more than once at any term of court. He may be a constable, or a person holding some other office, or a private citizen, pro

vided the court thinks he is a proper person to perform the duty. The mere fact that appellee was a duly elected, qualified, and acting constable of his township at the time of his appointment makes no difference, either in the duties to be performed by him or the compensation to be paid. Section 41 of chapter 53 (Hurd's Rev. St. 1903, p. 966) provides that a constable shall receive $2.50 per day for each day's attendance in the circuit court, to be paid out of the county treasury. But this section refers to the usual and customary duties of a constable while acting as a deputy sheriff or bailiff. But appellee was not a deputy sheriff or bailiff in a usually accepted meaning of the term. The sheriff was disqualified and could not act, and the appellee was appointed to act in his stead. Persons refusing to obey his summons would be liable for punishment for contempt, the as if they disobeyed the summons of the sheriff. Appellee was, however, in no sense under the control or dominion of the sheriff. He was clothed with discretion as to whom he should summons, and was under orders from no one, unless it was the court.

same

Appellee thus occupying the position of the sheriff, the question arises as to the amount of his fees. The statute is silent as to any compensation for this work; but can it be said that he would be entitled to the fees provided by law to the sheriff for summoning jurors? We think not. These fees did not belong to the sheriff. They merely constituted a fund out of which his salary, together with the other expenses of his office, might be paid, and the balance, if any, turned over to the county treasurer, and this only upon the theory that the fees were actually paid; otherwise they would only constitute a part of the earnings of the sheriff's office. If the sheriff himself was not entitled to the fees as his individual property, we do not see how it can be argued that appellee was entitled to them. He would certainly be entitled to no greater rights or privileges than the sheriff himself, especially in the absence of statutory provisions.

Upon the trial in the circuit court the court instructed the jury that if they believed from the evidence that the plaintiff was appointed by the circuit court of Carroll county as a special bailiff to serve 50 persons to act as jurors in said court, and that he acted as such bailiff and under the authority of said appointment served persons to act as jurors in said court, in that case he was entitled to recover from the county of Carroll the sum of 50 cents for each person served, together with 5 cents mileage each way. Acting upon this instruction, the jury returned a verdict for $50.30 against the county. The instruction of the court and the judgment entered upon the verdict were both clearly wrong, and were not founded upon any principle of law which has been called to our attention or

« AnteriorContinuar »