ad a

swer filed by him to the original bill, that for further proceedings in accordance with said deed, on the day of its date, was deposit- the views expressed in the opinion of this ed with Joseph S. Miles, the cashier of the court filed in this cause upon said appeal. First National Bank of Mt. Carroll, by John A certified copy of the mandate of this court Noble, to be delivered to him upon the death was filed, and the cause, upon notice, reof John Noble, and that, relying upon the docketed in the circuit court, whereupon validity of said deed and his ownership of the solicitor for the complainants entered said lands, he had made large expenditures a motion in said cause that the circuit court of money in improving said lands by the enter a decree in accordance with the opinion erection of buildings thereon, and that sub- and mandate of this court, and the solicitor sequent to the death of John Noble the deed for Thomas Noble entered a motion that had been delivered to him by said Joseph S. Thomas Noble be permitted to withdraw from Miles and recorded in the office of the re- the files the deed from John Noble to Thomas corder of deeds of said Carroll county, and Noble and also the promissory notes of Thomtbat by reason of such delivery the title as Noble, and that Thomas Noble be allowed to said premises vested in him, and asked the to file a supplemental answer showing that court to declare said deed was duly executed four of his brothers and sisters, since the and delivered, and that by reason thereof the opinion of this court had been filed in said other sons and daughters of said John Noble cause, had conveyed to him all their interest were barred from claiming any interest in in said lands, and that said Thomas Noble be said lands. The complainants in the original permitted to amend his answer to the origibill and three of the other heirs answered the nal bill, and his cross-bill, by striking out all cross-bill, denying the delivery of the deed, averments in said answer and cross-bill to and the other sons and daughters disclaimed the effect that said deed from John Noble to or made default, and upon a hearing the Thomas Noble had been delivered to said court found that the deed was made and Thomas Noble, and by inserting in said anacknowledged but that it was never de- swer and cross-bill, in lieu of such averlivered, and entered a decree declaring the ments, that said deed was a testamentary deed null and void for want of delivery, and disposition of said lands by said John Noble ordered that said lands be partitioned among to Thomas Noble, and asked the court to conthe sons and daughters of said John Noble, tinue the hearing of said cause until said and that a credit of $3,000 be allowed to deed could be admitted to probate as the last Thomas Noble upon certain notes executed by will and testament of John Noble, deceased, him to John Noble, which were then held in the county court of Carroll county, whereby him as executor of John Noble, deceased, upon the court permitted Thomas Noble to and which notes were for the repayment of withdraw said deed and promissory notes moneys which he had expended in improve- from the files upon filing certified copies in ments placed by him upon the said lands, lieu thereof, also to file a supplemental an. and dismissed the cross-bill of Thomas Noble swer showing that he had acquired by quitfor want of equity. Thomas Noble prose- claim deed the interests of four of his brothcuted an appeal from that decree to this ers and sisters in said lands since the decicourt, where it was determined (Noble v. Tip- sion of this case in this court upon the former ton, 219 Ill. 182, 76 N. E. 151) the trial court appeal, but denied him leave to amend his properly held said deed was not delivered answer to the original bill or his crossand rightfully ordered said lands partitioned bill, and entered a decree finding that said among the sons and daughters of John No- John Noble died seised of said lands, that ble, deceased, but erred in allowing a credit the deed from John Noble purporting to conof $3,000 to Thomas Noble upon his said notes vey said premises to Thomas Noble was null in payment and satisfaction of his claim for and void for want of delivery, that Elizaimprovements placed by him on said lands, beth Tipton, Ada Ostandere, Anna Herringand that the court, instead of allowing said ton, and Maggie Fickes were each the owner credit to Thomas Noble, should have provid- of an undivided one-ninth part of said premed in its decree that the portion of the lands ises exclusive of the value of the improveupon which said improvements were situated, ments placed thereon by Thomas Noble, and if practicable, in the division and allotment that Thomas Noble was the owner of an of said lands, should be set off and allotted undivided five-ninths part of said premises to said Thomas Noble, and if a partition of including the improvements placed thereon by said lands could not be made between the him, and appointed commissioners to make parties in interest so that Thomas Noble partition of said premises between said parshould receive the portion thereof upon which ties, and ordered that in the division and said improvements were situated, without allotment of said lands the commissioners manifest injury to the other parties in inter- set off and allot to Thomas Noble, if the same est, that then and in that case Thomas No- could be done without manifest injury to ble be reimbursed for the increased value of the rights of the parties in interest, the porsaid lands caused by the improvements placed tion of said premises as and for his share thereon by him, and the decree was reversed upon which were located the barns, corn. and the cause remanded to the circuit court cribs, granaries, scalehouse and windmills erected thereon by him, from which decree Thomas Noble bas again prosecuted an appeal to this court.

The main contention of the appellant as a ground of reversal on this appeal is that the circuit court erred in refusing to permit him to amend his answer to the original bill, and his cross-bill, by striking out from said answer and cross-bill the averments therein contained that the deed from John Noble to him had been duly acknowledged and delivered and was a valid conveyance to him of said lands by his father, John Noble, and inserting therein, in place of said averments, that said deed was a testamentary, disposition to him of said lands by said John Noble, and not a deed of conveyance to him of said lands, as he had averred in his answer to said original bill and in his cross-bill. Upon the first trial of this cause the appellant, Thomas Noble, filed his answer to the original bill, and his cross-bill, upon the theory, and the case was tried by him upon the theory that said deed, bearing date August 24, 1897, was a valid deed of conveyance from his father to him of said lands. The issue made and tried at that time was, had

the trial court "proceed in accordance with the views herein expressed” is that found in the case of In re Estate of Maher, 210 Ill. 160, on page 164, 71 N. E. 438, on page 440, where it was said: “Where this court, in considering a cause, determines the issues and decides the questions involved upon their merits, and the case is reversed and remanded, with directions to proceed in conformity with the views' expressed in the opinion, there is no power in the court below except to enter a final order or judgment, without a retrial.” The case of Blackaby v. Blackaby, 189 Ill. 342, 59 N. E. 602, is very similar in its facts to the case at bar. That was a bill for partition and an accounting. A de

A cree of partition was entered in accordance with the prayer of the bill, and the rents and profits were set off by the court in favor of a co-tenant who had been in possession of the premises, against the improvements made by said co-tenant, without the statement of an account by a master in chancery. The decree was reversed, with directions "to proceed in conformity to the views herein expressed.” Blackaby V. Blackaby, 185 Ill. 94, 56 N. E. 1053. On the case being rein

said deed been delivered by John Noble to stated in the court below the defendant Noble? The trial court held

the deed

was from an examination of the opinion filed in

Thomas Noble in the lifetime of John Noble, so as to vest the title to said lands in Thomas

sought to retry the question of title. While the decree had been reversed as an entirety,

null and void for want of a delivery. When the case it appeared the holding of the trial the case was here before it was said (page court upon the question of title had been 184 of 219 Ill., and page 152 of 76 N. E.): upheld by this court, and that this court "There was a hearing of the eviderice, and only disagreed in its holdings with the lower the court entered a decree finding that the court upon its method of stating the account, deed was made and acknowledged but that and the trial court declined tgo into a it was never delivered,” and after an ex- retrial of the question of title, which action haustive discussion of the law and evidence was affirmed by this court. involved in the decision of the case it was In City of Chicago v. Gregsten, 157 Ill. further said (page 187 of 219 Ill., and page 160, 45 N. E. 505, which was a bill for in152 of 76 N. E.): "The deed did not operate junction, this court reversed the decree of the as a conveyance of the property, and whether circuit court of Cook County and remanded it must fail as a testamentary disposition the cause to that court for "further proceedof the farm is a question not involved under ings not inconsistent with this opinion.” On the pleadings in this case.

* * It is the case being reinstated in the circuit court sufficient for the decision of this case that appellees entered a motion for a final decree the deed was not delivered and did not take in their favor in conformity to the opinion of effect in the lifetime of the grantor." It is this court, and the appellant entered a crossclear, therefore, that when the case was here motion for leave to file a supplemental anbefore the court had determined said deed swer. The court allowed the motion of aphad not been delivered, and when the case pellees and denied the motion of appellant. was reinstated in the court below that court This court, in affirming the action of the was powerless to retry that question: the trial court, said (page 163 of 157 Ill.. and only power remaining in that court being to page 500 of 45 N. E.): “It will be observed carry into effect the finding of this court upon that when the cause was first submitted to that question, and the fact that the decree the circuit court the question determined was reversed upon other questions did not was not merely that the injunction should affect the binding force upon the court below be dissolved, but there was a hearing on the of a finding of this court upon the question pleadings and affidavits, which were treated of delivery and its duty to enter a decree dis- by the parties as evidence, on the merits, posing of all questions in the case in favor of and a decree entered dismissing the bill the complainants in the original bill, with When the case reached this court on appeal the exception of the value of the improve- it was here considered and decided on the ments placed on said lands by Thomas Noble. merits and every question involved was fully

Among the latest expressions of this court considered and decided, as shown by the upon the effect of a remanding order that opinion of the court. The order, therefore,

78 N.E.-59

mo

is

said deed it was the duty of the trial court to appointing a committee to investigate to enter a decree holding said deed to be charges of corruption existing in the governnull and void, and not to retry that question ment of the city of Cincinnati and the county or to permit the appellant to so amend his of Hamilton,' a true copy of which resolution pleadings as to prevent a decree upon that is hereto attached, marked Exhibit A, and question and to cause a retrial of the case made a part of this petition. On the 26th upon a question not involved in the case on day of March, 1906, during the regular sesthe first appeal.

sion of the Seventy-Seventh General AsFinding no reversible error in this record, sembly of the state of Ohio, the Senate of the decree of the circuit court will be at- said state of Ohio duly adopted Senate Resofirmed.

lution No. 30, by Mr. Espy, entitled 'Senate Decree affirmed.

resolution relative to the committee appointed to investigate charges of corruption exist

ing in the government of the city of Cincin(75 Ohio St. 1)

nati and the county of Hamilton,' a true copy STATE ex rel. ROBERTSON REALTY CO.

of which resolution is hereto attached, V. GUILBERT, State Auditor.

marked Exbibit B, and made a part of this (Supreme Court of Ohio. Oct. 16, 1906.) petition. On the 1st day of March, 1906, the

General Assembly of the state of Ohio duly 1. STATUTES-ENACTMENT- LEGISLATIVE PowER-SEPARATE HOUSES OF LEGISLATURE.

passed and enacted House Bill No. 139, enThe whole legislative power of this state

titled 'An act to make partial appropriations having been conferred by the Constitution upon for the last three-quarters of the fiscal year the General Assembly as a unit and not upon the ending November 15, 1906, and the first Senate or House of Representatives acting separately, a single branch of the General Assembly

quarter of the fiscal year ending February 80 so acting has no power of independent legisla-15, 1907,' which was duly signed by the tion, except as expressly granted in the Consti- respective presiding officers of the Senate and tution or as necessarily implied in the express

of the House of Representatives, and duly grants.

approved by the Governor of the state of 2. STATES- LEGISLATURE-POWERS-APPOINTMENT OF COMMITTEES.

Ohio on the 5th day of March, 1906. Said Sections 50 to 55, inclusive, of the Revised

act of the General Assembly has never been Statutes of 1906, were not intended by the Gen- repealed. By said act passed as aforesaid on eral Assembly to authorize either branch thereof

said March 1, 1906, there was duly approprito appoint committees; but were designed to prescribe procedure for committees which may

ated for the contingent fund of the Senate have been constitutionally and regularly ap

for the use of select investigating commitpointed.

tees,' the sum of $12,500, which sum was 3. SAME-CONSTITUTIONAL LAW.

duly placed to the credit of said contingent The Constitution of this state contains no fund of the Senate of the state of Ohio, for express grant of power to either branch of the

he use of said select investigating committees, General Assembly to appoint a select investigating committee for general legislative purposes;

including the committee created by said and such power is not necessarily implied from

Senate Resolution No. 23, of which the sum the express grants to each house.

of about $3,500' has been expended, leaving Crew and Spear, JJ., dissenting.

at this time in the treasury of the state of (Syllabus by the Court.)

Ohio to the credit of said fund and for Application by the state, on relation of

the uses and purposes hereinafter stated, and the Robertson Realty Company, for writ of

for the uses and purposes of said committee

created by said Senate Resolution No. 23, the mandamus to Walter D. Guilbert, Auditor

sum of at least $9,000. By Section 3 of said of State. Petition dismissed.

act It was provided that no money therein This is an original proceeding for manda- appropriated should be drawn except on a mus in this court. The petitions and the ex. requisition of the Auditor of State. Under hibits which are attached thereto and made and in accordance with said Senate Resopart thereof are as follows:

lution No. 23, the committee therein selected, "The relator, the Robertson Realty Com- duly met and organized, elected John C. pany, is a corporation organized under, and Drake as chairman, who is still acting as in accordance with, the laws of the state of such, and entered upon the discharge of its Ohio, and having its principal office in the duties. The said committee, in accordance city of Cincinnati in said state of Ohio. The with said Resolution No. 23, selected as its defendant, Walter D. Guilbert, is the duly place of meeting the city of Cincinnati in elected and qualified, and was at the times said state of Ohio. Under and in pursuance hereinafter mentioned and ever since has of said organization and operation, the said been and now is, the legally acting Auditor committee found it necessary to rent from of State of the state of Ohio. On the 7th day the relator in said city of Cincinnati rooms of February, 1906, during the regular session in which to hold its meetings, and for that of the Seventy-Seventh General Assembly of purpose to incur expense; and also for the the state of Ohio, the Senate of said state of purpose, of carrying on its said work and disOhio duly adopted Resolution No. 23, by Mr. charging its said duties to incur with the Espy, entitled: "Senate Resolution relative relator a bill for electric light, a bill for repairs to lights, and a bill for a spring latch, relator prays for such other and further relief and keys. In connection with, and because as may be necessary and proper in the preinof, its said organization and the performance ises to protect and safeguard its interests.” of its said duties, in said city of Cincinnati, the said committee became indebted to the

“Exhibit A. relator, the Robertson Realty Company, in

"77th General Assembly, Regular Session. the manner aforesaid in the sum of $265.30,

S. R. No. 23. Mr. Espy. a true copy of which account, duly verified, is hereto attached, marked Exhibit C, and

“Senate Resolution. made a part of this petition. The amounts “Relative to Appointing a Committee to Innamed in said account are fair, just and vestigate Charges of Corruption Existing reasonable, and said expenditures were neces- in the Government of the City of Cinsary to enable the said committee to organize cinnati and the County of Hamilton. and carry on the work and to do the things

"Whereas, it has been charged in the public enjoined upon it by said Resolution No. 23.

press and elsewhere, that certain officials of Thereupon in accordance with law and said

Cincinnati and Hamilton county and the comSenate Resolution No. 23, the relator duly

missioners of waterworks of said city have presented to the Auditor of State of the state

made certain collusive and illegal contracts of Ohio, the defendant herein, a voucher

and have unlawfully misapplied and misused and requisition for said sum of $205.30, duly

the public funds, and have otherwise misused signed by the said chairman of said commit.

their official positions; and that certain pertee, a true copy of which voucher and

sons, corporations, and political committees, requisition is hereto attached, marked Ex

not officeholders, have unlawfully conspired bibit D, and made a part of this petition.

with or influenced said officials, or collected The Auditor of State has refused, and still

certain sums of money therefrom, illegally refuses, to issue, as is his duty, in accordance

or for an illegal purpose, or both, and have with law, his warrant or order on the Treas

conspired to corrupt the ballot; and, further, urer of the State of Ohio for said amount

that there have been other forms of misgove and declares that he will not do so, and as

ernment in said city and county. signs as a reason therefor that, in the absence

"Whereas, it is expressly represented to of the direction of this court, he is in doubt

this General Assembly by the citizens of as to his powers and rights and duties

Hamilton county, through their Senators and in the premises, but admits the facts afore

Representatives, that for good and sufficient said and the existence of money in the

reasons the people of said county cannot, of treasury of the state of Ohio to the credit

their own accord and with the means proof the proper fund and suficient in amount

vided by the present laws of the state, make to pay the account aforesaid.

and conduct an investigation of the matters “This relator avers that it is wholly with

and things herein referred to so as fully to out any remedy of form of action whatsoever

accomplish the results desired, for which in the premises save and except one in man

reason they appeal to the people of the state damus. The said committee, under and in

to assist them in making and conducting said pursuance of said resolutions, for more than

investigation through and by the General two months have proceeded in the discharge

Assembly. of the duties laid upon them by said resolu

"Whereas, it is of the first importance that tions, and are desirous of proceeding, and are

the General Assembly should be fully inin duty bound to proceed, to the final dis

formed as to the extent of these and other charge of their duties and obligations under

alleged abuses, that it, with the fullest possaid resolutions. Wherefore, this relator

sible information in its possession, may be prays that this honorable court may cause able to make such amendments in the existto issue to the defendant herein, Walter D.

ing laws, and enact, if necessary, such new Guilbert, the Auditor of State of the state of

laws as may protect the people of CincinOhio, a peremptory writ of mandamus com

nati and Hamilton county, and other cities manding him to issue to this relator, in ac- and counties from like alleged abuses and cordance with law, his proper warrant on the

impositions in the future. Treasurer of the State of Ohio for the said

“Be it resolved by the Senate of the state sum of $265.30 for the uses and purposes of Ohio, that under and by virtue of sections aforesaid; or that this court may cause to

50, 51, 52, 53, 54, and 55 of the Revised Statissue to said defendant an alternative writ

utes of Ohio, a select committee composed of of mandamus commanding him forthwith, Messrs. Drake, Schmidt, Espy, Sites and in accordance with law, to issue to the rela- Meck be appointed with full power and autor his said proper warrant for said sum

thority to investigate all and singular the of $265.30, or that by a day certain he appear said matters and charges and all matters before this honorable court, and show cause and things in any way pertaining thereto, why he should not comply with the relator's and with full power to prosecute its inquiry prayer, and why a peremptory writ of man- in any and every direction in its judgment da mus should not issue as aforesaid. This necessary and proper to enable it to obtain