which we know of, and the judgment as rendered will have to be reversed and the cause remanded for a new trial.

As the case will have to be tried again and the same question arise for determination, we will pass upon the proper compensation of the appellee, so there may be no further controversy over the matter. The statute makes provision for the appointment of a special bailiff, but in no place defines what his compensation shall be. The court undoubtedly cannot be so obstructed by this omission as to delay its business or clog its wheels. It has summary powers to do those things which are necessary to properly administer justice. One of these summary powers is to supply any slight defect or omission which may be necessary. At the same time the people of the county are interested to the extent at least that an exorbitant or unjust claim shall not be allowed. The court had authority to appoint appellee. It also had power to fix his compensation at such a just and reasonable amount as would indemnify him for his time actually employed and his necessary expenses in traveling over the county to perform his duties. This allowance should be made upon a showing of the character of the work done and the reasonable compensation therefor.

The judgments of the circuit court and of the Appellate Court will be reversed, and the cause remanded for further proceedings in accordance with the views above expressed. Reversed and remanded.

A county tax levy of 75 cents on each $100 of taxable property, according to assessed valuation, without specifying the particular purposes for which the tax is levied, is invalid. 2. CONSTITUTIONAL LAW-STATUTES-CURATIVE ACTS-POWER TO PASS.

Where there is no constitutional provision to the contrary, the Legislature may validate by a curative act any proceeding which it might have authorized in advance, such as cases in which the power to levy taxes has failed of proper execution through the carelessness of officers or other cause; but the Legislature cannot by retrospective legislation confirm what it could not originally have authorized, or cure an original want of authority to act.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 526, 536540.]

3. COUNTIES-TAXATION-LEVY-SPECIFICATION OF OBJECTSVISIONS.

CONSTITUTIONAL PRO

Const. art. 9, § 8, prohibiting county authorities to assess taxes, the "aggregate" of which exceeds 75 cents per $100 valuation, does not require the county board in levying a tax to specify the particular purpose for which it is levied.

4. CONSTITUTIONAL LAW-Statutes-CuraTIVE ACTS-VALIDITY.

Laws 1905, p. 359, curing tax levies which

were originally defective in omitting to state the particular purposes for which the tax was levied, does not interfere with the vested rights of taxpayers, but is valid exercise of legislative power, and renders the tax levies subject thereto legal and valid.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 192, 213.] Appeal from Lake County Court; D. L. Jones, Judge.

Application by the people, on the relation of Lewis C. Price, county treasurer, for a judgment and order of sale against the property of the Wisconsin Central Railroad Company for a county tax levied on such property. From a judgment refusing the application, relator appeals. Reversed.

Leslie P. Hanna, State's Atty. (Benjamin H. Miller, of counsel), for appellant. Charles Whitney, for appellee.

CARTWRIGHT, C. J. At the June term, 1905, the county court of Lake county refused the application of the county collector of said county for a judgment against the property of appellee for a county tax levied on said property, and from that judgment this appeal was prosecuted. At the September session, 1904, the county board attempted to levy a county tax of 75 cents on each $100 of taxable property according to its assessed valuation, and did not specify the particular purposes for which the tax was levied. Such a levy was not authorized by the statute, and the tax was vitiated by the failure to comply with the law. Cincinnati, I. & W. Ry. Co. v. People, 213 Ill. 197, 72 N. E. 774; Chicago, B. & Q. R. Co. v. People, 213 Ill. 458, 72 N. E. 1105. On February 28, 1905, the Legislature passed an act for the purpose of curing the defect in levies which existed in this and other like cases. Laws 1905, p. 359. That act was in force from and after its passage, and the only question in this case is whether it cured the defect. If it was within the power of the Legislature to pass the act, the defect was thereby cured, and the tax validated.

The

There is no prohibition in our Constitution against the passage of retroactive statutes, and they are not invalid if they do not impair vested rights, or come in conflict with some provision of the Constitution. general rule is that, where there is no constitutional prohibition, the Legislature may validate, by a curative act, any proceedings which they might have authorized in advance. 8 Cyc. 1083; 26 Am. & Eng. Ency. of Law (2d Ed.) 609. Cases where the power to levy taxes has failed of proper execution through the carelessness of officers or other cause come within that rule. Cooley, Const. Lim. (4th Ed.) 462; Cooley on Taxation, 229. But while curative acts may heal irregularities, they cannot cure the want of authority to act at all, and the Legislature cannot, by retrospective legislation, confirm what it could not originally have authorized. On that ground, it is contended by appellee

that the curative act of 1905 is invalid. It is urged that the Legislature could not have authorized such a levy as was made, because it would be in conflict with section 8, art. 9, of the Constitution, which provides: "County authorities shall never assess taxes, the aggregate of which shall exceed seventyfive cents per $100 valuation, except for the payment of indebtedness existing at the adoption of this Constitution, unless authorized by a vote of the people of the county." The argument is based on the use of the word "aggregate," as showing an intent that the county authorities shall specify the particular purposes to which the money, when collected, shall be appropriated, and that the aggregate shall not exceed the rate specified. We are not prepared to say that the construction contended for should be given to the Constitution, but are of the opinion that the provision was intended merely as a limitation upon the power of county authorities to levy taxes.

The next question is whether the curative act interferes with or destroys any constitutional right of the taxpayer. It is the right of the taxpayer to have an opportunity to be heard before a tax shall be finally adjudged against him, and no tax can be valid without an opportunity for such a hearing. Therefore, it was decided in Marsh v. Chesnut, 14 Ill. 223, that the Legislature could not cure by subsequent legislation the failure of an assessor to complete the assessment, and return it to a particular place on or before a certain day. The provision for such a return was to enable the taxpayer to inspect the assessment, and to give him time and opportunity to make application to the county commissioners' court for correction of the assessment. The curative act deprived him of an opportunity to appeal and a hearing, and was void for that reason. The same rule was applied on the same ground in Billings v. Detten, 15 Ill. 218; and in Conway v. Cable, 37 Ill, 82, 87 Am. Dec. 240, it was held that the Legislature could not, by retrospective enactment, make an invalid tax proceeding valid, and thereby divest an individual of his vested rights. It was there held that a citizen might allow his real estate to pass to a sale, relying upon the want of compliance with the law authorizing the sale, and that his rights thereby acquired could not be affected by subsequent legislation. On the other hand, in Cowgill v. Long, 15 Ill. 202, the court held that, although it was essential to the validity of a school tax that it should be certified to the county clerk before the 1st of July, the Legislature had power to pass a special act, declaring that a tax voted on the 20th of July and the act of certifying the tax to the county clerk should be legal and valid and 76 N.E.-6

effectual in the law. No vested right was interfered with, and it was considered that the Legislature had the right to remedy the defect while the tax remained uncollected. In the case of McVeagh v. City of Chicago, 49 Ill. 318, where a tax on bank shares was not properly assessed by reason of a defective law under which it was attempted, the court decided that the Legislature had power to pass a special law to cure the omission. It is within the power of the Legislature to change the mode for the collection of taxes at any time before they are paid, discharged, or otherwise released. Hosmer v. People, 96 Ill. 58. If the Legislature could have provided for the levy of county taxes in the manner in which this tax was levied, and no constitutional right of the taxpayer was invaded, the curative act would be effective to remedy the defect. The Legislature did not choose to change the plan for levying county taxes, which has been regarded as a wise one for the protection of taxpayers. No change was made in the method of levying taxes for any subsequent year, and the rule for the future remains precisely the same as before the passage of the act of 1905. County boards were not invested with power to levy county taxes without determining the amount needed for each purpose included in the levy, and the act was only intended to validate taxes previously levied, where county officials had failed, through ignorance, to specify the purposes of the tax. As we think that the Legislature might have authorized a levy in this manner, and no vested right of the taxpayer was interfered with, the curative act had the effect to render the tax legal and valid.

It was said in Chicago, B. & Q. R. Co. v. People, supra, that the failure to comply with the statutory requirement was not a mere irregularity, but a fatal omission, which vitiated the tax, and it is argued that the tax was therefore void, and could not be given vitality by a subsequent act. Section 191 of the revenue act (Hurd's Rev. St. 1903, c. 120) is curative and prospective, and provides that in tax proceedings no tax shall be considered illegal on account of errors or informalities in the proceedings not affecting the substantial justice of the tax. What was said with reference to the tax in the case referred to related to the question whether it was within the prospective curative provisions of that section. The defect In that case and in this one did not come within the curative provisions of that section, but it does not follow that the defect was not cured by the retrospective act of 1905.

The judgment of the county court is reversed, and the cause remanded. Reversed and remanded.

SESSMENTS-JUDGMENT OF SALE.

The delinquent list on an application for judgment of sale for special assessment stands as a declaration, and the notice of process must conform thereto.

2. SAME-DESCRIPTION OF PROPERTY.

The description of property in a delinquent list as located in "Sherman & Krutz's Roseland Park Addition to Pullman," and in the notice as being in "Herman & Krutz's Roseland Park Addition to Pullman," constituted a fatal variance, though there is only one addition in Pullman of the name in the delinquent list, and no addition of the name appearing in the notice.

Appeal from Cook County Court; Orrin N. Carter, Judge.

Action by the people, on relation of John J. Hanberg, county treasurer, against Charles H. Smythe and others. Judgment for plaintiff, and defendants appeal. Reversed.

Taylor & Martin, for appellants. Robert Redfield and Frank Johnston, Jr. (James Hamilton Lewis, Corp. Counsel, of counsel), for appellee.

HAND, J. This was an application for judgment and order of sale against the lands of appellants in the county court of Cook county to satisfy the first installment of a special assessment levied for the construction of a system of sewers in the city of Chicago, known as the "West One Hundred and Thirteenth Street System." The appellants appeared specially, and filed objections on the ground that there was a fatal variance between the notice for judgment and order of sale and the delinquent list, and pointed out in their objections that the property was described in the notice as being located in "Herman & Krutz's Roseland Park Addition to Pullman," whereas it was described in the delinquent list as being located in "Sherman & Krutz's Roseland Park Addition to Pullman." Appellee introduced evidence showing that there was only one "Sherman & Krutz's Roseland Park Addition to Pullman" and no "Herman & Krutz's Roseland Park Addition to Pullman," whereupon the court overruled the objections, and rendered judgment, and entered an order of sale against the lands of appellants, to reverse which judgment and order of sale the appellants have prosecuted this appeal.

The statute (3 Starr & C. Am. St. 1896 [2d Ed.] c. 120, par. 184, p. 3464) provides that the county collector shall give notice for judgment and sale for delinquent taxes and special assessments by publication, which publication notice shall contain a list of the delinquent lands and lots upon which the taxes or special assessments remain due and unpaid, the names of the owners, if known, the total amount due thereon, and the year or years for which the same are due, and that he will apply to the county court for a judgment and

order of sale against said lands and lots for said taxes and special assessments, with interest and costs. This section of the statute is mandatory, and must be complied with strictly, otherwise the county court does not obtain jurisdiction to proceed. Cooley, in his work on Taxation (1st Ed.) on page 335, says, that whether the notice required is to be made by publication or by posting, "it must be complied with strictly. This is one of the most important of all the safeguards which has been deemed necessary to protect the interests of the parties taxed, and nothing can be a substitute for it, or excuse the failure to give it." Blackwell, in his work on Tax Titles (4th Ed.) on page 249, says, that where "the statute declares what the contents of the advertisement shall be, each fact required by the statute must appear in the advertisement or it will be void; thus, the time and place of sale, a description of the lands to be sold, the amount of tax due, the name of the owner, * * the year for which the tax was due, a recital of the purpose for which the tax was levied, and such other facts as the particular statute under which the notice is given may have rendered essential. Any omission in these respects, or variance between the contents of the notice and the facts of the case, will invalidate the proceedings." This court (McChesney V. People, 178 Ill. 542, 53 N. E. 356, and Gage v. People, 188 Ill. 92, 58 N. E. 947) has held that a material variance between the notice and the delinquent list is fatal to a valid judgment and order of sale. The variance between the notice and delinquent list in the McChesney Case was that the name of the owner appeared in the notice as "Chesney" and in the delinquent list as "A. B. McChesney," and the variance in the Gage Case was that the notice and delinquent list described differently the special assessment warrants, both as to date and the improvement for which the special assessment was to be levied. The delinquent list stands as a declaration and the notice as process, and they must agree. Mann v. People, 102 Ill. 346. The appellee sought to correct the defect by showing that there was no "Herman & Krutz's Roseland Park Addition to Pullman," but that there was a "Sherman & Krutz's Roseland Park Addition to Pullman," and reliance is placed upon a line of cases which hold that, if a description is of such a charaacter that a competent surveyor with reasonable certainty, either with or without extrinsic evidence, can identify the property, the tax levy will be sustained. Law v. People, 80 III. 268; Otis v. People, 196 Ill. 542, 63 N. E. 1053. Those cases are not in point. There the sole question raised was whether the property had been sufficiently described in a delinquent list or in a tax deed, while here the question is, did the court have jurisdiction to render judgment against appellants' property, and to order it sold to satisfy a delinquent special assessment? We think it

A verdict in condemnation proceedings will not be disturbed on appeal, where the evidence is conflicting, and the jury viewed the premises, and there is no showing of prejudice or that the amount is grossly excessive.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3935-3937; vol. 18, Cent. Dig. Eminent Domain, § 685.] 2. EMINENT DOMAIN-OPINION EVIDENCE.

In condemnation proceedings, a witness may base his opinion as to the damage to land on the possibility of danger of fire from sparks from locomotives.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 294, 298.] 3. APPEAL-REVIEW-ASSIGNMENT OF Errors. Where the action of the court in overruling a demurrer is not assigned as error, it cannot be reviewed.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 2973.]

Appeal from Will County Court; Arthur W. Deselm, Judge.

Condemnation proceedings by the Illinois, Iowa & Minnesota Railway Company against Martin Ring. From a judgment, the railroad company appeals. Affirmed.

This was a condemnation proceeding begun in the county court of Will county by the filing of a petition by the appellant company against the appellee to condemn under the statute a strip of land 100 feet in width across the 80-acre farm owned by appellee. The strip of land as located by appellant runs lengthwise and diagonally across the 80 acres of land, by beginning on the north line of the tract, where the west line of the said right of way is 196 feet from the northwest corner of the said tract, then running partly on a curve to the southeast corner of the tract, so that the east line of the right of way is 392 feet from the said southeast corner, dividing the 80 acres, lengthwise, into two irregular, triangular shaped pieces of land, one of which contains about 45% acres and the other 28 acres. The cause was tried before the court and a jury. The jury made a personal inspection of the premises, and returned a verdict finding the sum of $1,189.50 as just compensation for the 62 acres of land taken, and finding the sura of $3,197.25 as damages to the remainder of the land adja

cent to the strip taken. Judgment was rendered in accordance with the verdict, and this appeal is prosecuted to reverse that judgment.

Eddy, Haley & Wetten and J. L. O'Donnell (Charles H. Pegler, of counsel), for appellant. C. W. Brown, Coll McNaughton, and P. Shutts, for appellee.

RICKS, J. (after stating the facts). The principal contention of appellant is that the damages are excessive. It will be seen from the statement of the case that the amount of damages allowed for the land taken amounted to $183 per acre for the 6 acres. The evidence discloses that the land was worth from $120 to $200 per acre, some of the witnesses testifying that the land was worth from $200 to $300 per acre. The amount of the damages was within the range of the evidence, which was all that was necessary; and as to the damages to the land not taken, the jury fixed the price at $43.50 per acre. Eleven witnesses testified for appellee as to the damages to the remainder of the land; the lowest being $55 and the highest $80 per acre, the balance of the witnesses ranging in amounts between the two. The amount found by the jury to be the actual damages was less than the lowest estimate placed upon the land by any witness for appellee. We have repeatedly held that allowances for damages by a jury in a condemnation proceeding, if within the range of the evidence, will not be disturbed on appeal, where the evidence is conflicting and the jury viewed the premises. Illinois, Iowa & Minnesota Railway Co. v. Humiston, 208 Ill. 100, 69 N. E. 880, and cases cited. This court will not disturb the finding of the jury under such circumstances, unless we can say from the record that the jury were prejudiced and unfair in reaching their conclusion, or that the amount found is grossly excessive for the land taken and damaged. No such condition exists in this record. The verdict of the jury is in accord with the evidence in every respect, and it would be unwise for this court to undertake, as an abstract proposition of law, to determine what the amount of damages would be upon a condemnation proceeding, without having an opportunity to see and inspect the premises. All we have to go by is the evidence as it appears in the record, and if we find that the judgment is reasonable and sustained by the evidence it is our duty to sustain the verdict of the jury.

It is next insisted that it was error in permitting the witness Baker to testify as to the element of damages that might arise from fire that might be emitted from the engines in use on said road. Other witnesses testified to substantially the same as did the witness Baker, but no objection was made or exception taken to their testimony. The witness testified that one of the things he took into consideration as to the determination of the market value of the land was the danger from fire. We think that the evidence was proper,

as it is competent for witnesses to give their opinion as to the state of facts upon which they base their opinion, and we see no good reason why the probabilities of fire from passing trains should not be shown by the evidence to be an element of damages that may be taken into consideration. Chicago, Paducah & Memphis Railroad Co. v. Atterbury, 156 Ill. 281, 40 N. E. 826.

It is next urged that counsel for appellee, in addressing the jury, made improper remarks; but upon objection by counsel for appellant the remarks objected to were either at once withdrawn or modified, and we are unable to see how the jury could have been prejudiced by the remarks.

It is next urged that a demurrer which was filed to the appellee's cross-petition should have been sustained. The demurrer was overruled, but the ruling of the court is not assigned as error, and appellant abode the ruling of the court on the demurrer. Under this condition of the record we are not at liberty to decide this question, as only errors that are assigned can be reviewed by this court.

After a careful examination of the record we find no error which would justify us in reversing the judgment. The judgment of the county court of Will county is accordingly affirmed.

Judgment affirmed.

'219 Ill. 138)

SLACK v. COOPER et al. (Supreme Court of Illinois. Dec. 20, 1905.) 1. APPEAL-REVIEW-DISCRETION OF LOWER

COURT-JUDICIAL SALES-CONFIRMATION.

A broad discretion is vested with the chancellor in the matter of approving or disapproving the acts of a master in chancery with reference to judicial sales, and such discretion will not, unless abused, be interfered with on appeal.

firmed. The petition was answered by Wil liam Fenimore Cooper, master in chancery, and by complainant. An order was entered dismissing the petition for want of equity, which order was affirmed by the Appellate Court, and intervener appeals. Affirmed.

This is an appeal from a judgment of the Appellate Court affirming a decretal order of the circuit court of Cook county entered in said cause on the 13th day of April, 1904, setting aside a sale of the premises involved in this cause to the German Old People's Home, one of the appellees, and refusing to confirm an alleged sale thereof to the appellant, and the order of a resale of said premises. The facts of the case disclose that on June 5, 1902, the German Old People's Home, a corporation organized under the laws of the state of Illinois for charitable purposes, and John W. Buehler, as trustee, filed their bill of complaint in the circuit court of Cook county against August Warnhoff and others to foreclose a trust deed in the nature of a mortgage upon certain property in Cook county. The German Old People's Home was the owner of the indebtedness secured by said trust deed. John C. Wilson was one of the parties defendant to the bill, being the owner of the equity of redemption, and was represented in the foreclosure proceedings by William Slack, appellant, filed an answer on behalf of said Wilson; the other defendants being defaulted. A reference was had on the bill and answer and replication to William Fenimore Cooper, one of the masters in chancery of said circuit court, and on March 10, 1904, a decree of foreclosure and sale was entered in said cause, finding due the German Old People's Home from the defendant the sum of $8,197.11, together with all costs incurred in the suit, and $409.85 attorney's fees, and decreeing that the premises be sold at public auction for cash to

2. MORTGAGES-FORECLOSURE-SALES-REFUSAL TO CONFIRM.

A sale under foreclosure decree was made by the master in chancery to the solicitor for the owner of the equity under a misapprehension that he was acting for complainant. There was no one else present at the time of the sale, but a few moments afterwards complainant's solicitor arrived and made an increased bid, which the master, being apprised of the mistake under which he had been laboring, accepted. Held, that it was a proper exercise of discretion for the chancellor to refuse to approve either sale and to order a resale.

3. SAME.

The master acted properly under the circumstances in making the second offer of sale after learning his mistake.

Appeal from Appellate Court, First District.

Bill to foreclose a trust deed by the German Old People's Home and another against August Warnhoff and others. A sale of the premises was had, at which William Slack became a purchaser and filed an intervening petition, praying that the sale to him should be con

not pay the sum found due in three days from the date of the decree, and providing for execution in case of a deficiency after sale. The master duly advertised the said premises for sale according to law and the terms of said decree. The time and place fixed for the same was 1 o'clock in the afternoon of April 5, 1904, at the judicial salesrooms of the Chicago Real Estate Board in Chicago. Between 1 o'clock sharp and 5 minutes after 1, upon said day at said place, the master, acting under apparent misapprehension that the owner of the decree was represented at said sale by appellant and that all persons interested were present, offered the premises for sale; the master, from his statements, having been confused as to the attorneys that represented the parties interested. At the time said master offered the premises for sale there was no one present at the salesroom except Wilson and his solicitor, appellant. The master, immediately after 1 o'clock, offered said property for sale and the appellant bid $3,000, and,