plied with the law as to the posting, publishing and mailing of notice. This is a finding by the court as to the existence of the facts which gives it jurisdiction over the property specially assessed in that proceeding. Such a finding, under our decisions, is conclusive in a collateral proceeding.

It is claimed, however, that this recital is overcome by the production of a publisher's certificate and two affidavits, and the exhibits thereto attached. The order of the county court shows that D. J. McMahon, Charles E. Smith and William Lee were appointed as such commissioners. The notices attached to said affidavits and certificate purport to have been given by H. Moynihan, Charles E. Smith and William Lee. The trial court admitted the said papers in evidence, but on the hearing evidently considered them insufficient to overcome the recital, its finding being in favor of the people. This conclusion was correct. The affidavits and certificate were, at most, merely evidence, or, as the statute says, "prima facie evidence," on which the court may or may not have acted in arriving at its finding in the special assessment proceeding as to its jurisdiction. These papers cannot be permitted, on a collateral attack, to contradict and overthrow the solemn judgment of the court. Casey v. People, 165 Ill. 49; Hertig v. People, 159 id. 237.

The two cases of McChesney v. People, 145 Ill. 614, and 148 id. 221, are cited as maintaining a contrary rule. This is a misapprehension. It is true that in those cases the lack of jurisdiction was treated as shown by the affidavit and certificate; but as we have heretofore said, speaking of these cases: "No point was made or considered that the judgment of confirmation could not be thus attacked in a collateral proceeding, but in the case at bar it is made and must be sustained." (Dickey v. People, 160 Ill. 633.) A failure to give notice as required by the statute is fatal to the jurisdiction to confirm the roll. An assessment roll made by persons other than those appointed by

the court for that purpose is likewise fatal to the jurisdiction; but this want of jurisdiction must be made to appear on the face of the record itself, otherwise it can not be taken advantage of in a collateral proceeding.

Counsel have also discussed the question of whether a judgment in favor of the objector, on an application for judgment for a prior delinquent installment of the same assessment, is res judicata here. We held in the recent case of Markley v. People, (ante, p. 260,) that the holding of the county court that the ordinance under which the assessment was levied was void on an application for judgment for a former delinquent installment operated as an estoppel in the subsequent case. But there are two obstacles in the way of applying that rule here. First, the evidence does not show the judgment which it is claimed constitutes the former adjudication. A minute on the clerk's docket is not the judgment, and that is all the record shows. Second, the evidence does not show that the controlling question or fact is the same in both cases. "The burden of establishing an estoppel is upon him who invokes it. ** In order that the judgment should operate as an estoppel it must either appear upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined in the former. suit. If there be any uncertainty on this head. in the record, as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated and upon which the judgment was rendered, -the whole subject matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and. determined." Sawyer v. Nelson, 160 Ill. 629 (at p. 631.)

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The judgment must be affirmed.

Judgment affirmed.

THE PEOPLE ex rel. Kochersperger, County Treasurer,

V.

THE BAPTIST THEOLOGICAL UNION.

Opinion filed February 14, 1898.

TAXES-what not a forfeiture of religious society's exemption from taxation. A society incorporated to establish an institution for theological instruction does not forfeit its exemption from taxation, under its charter, by exchanging its quarters for rooms at a university and being styled "The Divinity Department," where it retains its corporate existence, appoints the instructors in the divinity department, prescribes their duties, pays their salaries, directs the course of instruction and pays the expenses of the school from its own income.

APPEAL from the County Court of Cook county; the Hon. R. W. S. WHEATLEY, Judge, presiding.

WILLIAM F. STRUCKMANN, Assistant County Attorney, (ROBERT S. ILES, and FRANK L. SHEPARD, of counsel,) for appellant.

HOLDEN & BUZZELL, for appellee.

Mr. JUSTICE BOGGS delivered the opinion of the court: But a single question is here presented, viz., whether the property of the appellee, the Baptist Theological Union, is exempt from taxation.

The appellee corporation was created by an act of the General Assembly of this State entitled "An act to incorporate the Baptist Theological Union," in force July 16, 1865. Section 7 of the act is as follows: "The property, real and personal, belonging to said corporation, at any and all times hereafter, shall be free and exempt from all taxation and assessments, special or general, for any and all purposes whatever."

It was held by a bare majority of this court the decision of the Supreme Court of the United States, that

the exemption of the property of the appellee corporation by the legislative power of the State in its charter is binding as a contract, should be accepted as the law with relation to said exemption clause. (People ex rel. v. Baptist Theological Union, 95 Ill. 561.) Appellant accepts this decision as an adjudication of the question of the legality of the exemption provision, but insists the union has ceased to serve the purposes for which it was created, and has devoted its property to other than the corporate uses contemplated by its charter, and that for that reason it cannot avail itself of the benefit of the provisions of its charter exempting its property from taxation.

The second section of the act incorporating the appellee union is as follows: "The object of this act of incorporation shall be the founding, endowment, support and direction of an institution for theological instruction, to be styled 'The Chicago Baptist Theological Institute."" And section 6, among other things, provides as follows: "The board is charged with the superintendence and government of the institute, and shall have power to select a president, and, in its discretion, a vice-president thereof, and all necessary professors, tutors and other instructors, and to prescribe the duties and fix the salaries of each, and to fix the rates of tuition and terms of admission to the institute, and may prescribe the courses of study, and shall maintain discipline in the institute."

It is urged by the appellant, it appeared from the evidence an arrangement had been entered into by and between the appellee union and the University of Chicago by which the union was merged in the university, and became and was, on the first day of May, 1896,-the date of the assessment of the property for taxation,—a mere branch of the university, and that it had lost its separate corporate existence and ceased to serve the purpose and object of its creation. We are inclined to agree with the

county court that the evidence did not sustain the view expressed by the appellant. It did appear the Theolog. ical Union occupied rooms provided by the university, wherein the pupils and students of the union were assembled to receive instruction, and that the university furnished dormitories for the use of such students, and that such school was known and called "The Divinity Department" of the university. It, however, appeared the union furnished to the university a building belonging to it in exchange for the rooms and apartments in the building of the university, and that it maintained its corporate existence, appointed the professors, tutors and teachers in the divinity school, prescribed their duties, and regulated and paid the salaries of such professors, tutors and teachers, directed the course of instruction, and defrayed the entire expenses connected with the maintenance of such school out of the income arising from its property. It was also shown the instruction imparted in the divinity school is the same, in nature and character, as that contemplated by the charter of the union and the same as was imparted when the union maintained a separate school. The evidence does not disclose, in detail, the agreement between the two institutions or the exact relations of the one to the other, but so far as the facts are disclosed it seems the union entered into the arrangement because it offered superior advantages in the matter of securing for its school a greater number of students, and increased its facilities for the discharge of its corporate duty of maintaining and conducting the theological school contemplated by its charter. It did not appear the property of the union, or the income arising therefrom, was being or had been appropriated to purposes foreign to the corporate object, or that the union has ceased to discharge its corporate functions.

The views of this court in respect of the validity of the clause in the charter of the union exempting its property