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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 aver
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 the trial court "proceed in accordance with Thomas Noble bas again prosecuted an ap- the views herein expressed” is that found peal to this court.
in the case of In re Estate of Maher, 210 Ill. The main contention of the appellant as a 160, on page 164, 71 N. E. 438, on page 440, ground of reversal on this appeal is that the where it was said: “Where this court, in circuit court erred in refusing to permit him considering a cause, determines the issues to amend his answer to the original bill, and decides the questions involved upon their and his cross-bill, by striking out from said merits, and the case is reversed and remandanswer and cross-bill the averments therein ed, with directions to proceed in conformity contained that the deed from John Noble to with the views' expressed in the opinion, him had been duly acknowledged and de- there is no power in the court below except livered and was a valid conveyance to him to enter a final order or judgment, without a of said lands by his father, John Noble, and retrial.” The case of Blackaby v. Blackaby, inserting therein, in place of said averments, 189 Ill. 342, 59 N. E. 602, is very similar in that said deed was a testamentary, disposi- its facts to the case at bar. That was a tion to him of said lands by said John Noble,
bill for partition and an accounting. A deand not a deed of conveyance to him of said cree of partition was entered in accordance lands, as he had averred in his answer to with the prayer of the bill, and the rents said original bill and in his cross-bill. Up- and profits were set off by the court in favor on the first trial of this cause the appellant, of a co-tenant who had been in possession Thomas Noble, filed his answer to the origi- of the premises, against the improvements nal bill, and his cross-bill, upon the theory, made by said co-tenant, without the stateand the case was tried by him upon the ment of an account by a master in chancery. theory that said deed, bearing date August
The decree was reversed, with directions "to 24, 1897, was a valid deed of conveyance proceed in conformity to the views herein from his father to him of said lands. The expressed.” Blackaby V. Blackaby, 185 Ill. issue made and tried at that time was, had 94, 56 N. E. 1053. On the case being reinsaid deed been delivered by John Noble to
stated in the court below the defendant Thomas Noble in the lifetime of John Noble, sought to retry the question of title. While so as to vest the title to said lands in Thomas the decree had been reversed as an entirety, Noble? The trial court held the deed was from an examination of the opinion filed in 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,
reversing the decree of the circuit court and judgment of the Appellate Court and remanding ‘for further proceedings not inconsistent with the opinion,' in connection with the opinion, in our judgment was a clear direction to the circuit court to enter a decree for the complainants upon the filing of the remanding order in that court, and the course pursued by the circuit court in refusing defendant's application to reopen the cause and rendering final decree is sustained by the following authorities: Hollowbush v. McConnel, 12 Ill. 203; Wadhams v. Gay, 83 Ill. 250; Newberry V. Blatchford, 106 Ill. 584; Hook v. Richeson, 115 Ill. 431, 5 N. E. 98; Gage v. Bailey, 119 Ill. 539, 9 N. E. 199; Sanders v. Peck, 131 Ill. 407, 25 N. E. 508; Buck v. Buck, 119 Ill. 613, 8 N. E. 837."
In Lynn V. Lynn, 160 Ill. 307, 43 N. E. 482, which was a proceeding by an administratrix to sell real estate to pay debts, the decree of the lower court was reversed, and the cause was remanded "for further proceedings consistent with this opinion.” After the case was redocketed in the probate court the administratrix asked leave to file an amended petition. On page 317 of 160 Ill., and page 485 of 43 N. E., it was said: "Was it the duty of the court to permit an amended petition to be filed and enter upon another trial of the cause, or was it the duty of the court to enter a decree in conformity to the decision of this court, as was done, denying the application? It will be observed that this court, in the decision of the case, passed on all the questions there involved, and upon an examination of the amended petition it will be found that the new matters attempted to be litigated were all in existence when the first hearing was had in the probate court. If the deed to Gardner was obtained by undue influence or fraud, that could have been proven on the first hearing, or if the title conveyed or attempted to be conveyed by that deed was barred by any statute of limitations, that was a matter which could have been proven on the first trial. Indeed, we find nothing attempted to be set up on the last hearing which the administratrix could not have brought upon the first."
In Washburn & Moen Manf. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30, on page 35, 6 N. E. 191, on page 197, it was said: "Since the direction that one part of a decree be modified is, by necessary inference, an approval of that part omitted from that direction, the substantial rights of the parties to the decree are not perceptibly different from what they would be were it expressly ordered, in the formal entry upon the record, that such omitted part of the decree is affirmed. No statute requires that the specific modification directed shall be embodied in the formal order of court entered of record by the clerk of this court, and it is conformably with our practice, and suffi
cient, if the modification be specifically directed in the written opinion of the court filed in the case. And so it is held that it is the duty of the lower court to examine the opinion and conform its action to it.” And in Wadhams y. Gay, 83 Ill. 250, on page 253, it was said: "On the receipt of the mandate and opinion the superior court was bound to carry into complete effect the decision of this court not to retry the cause or place the complainants, the appellees, in a position by which the cause might be retried.
When a case has received full consideration in this court, and the mețits fully explored, discussed, and settled, and the cause remanded for further proceedings in conformity to the express views and opinion of this court, there can be no power remaining in the court to which the opinion and mandate are sent to retry the cause, or do any other matter or thing in the cause but to obey the mandate. The opinion of this court was on the merits. They had been declared by this court against the complainants. The mandate required of the superior court the execution of the decree of this court—not a retrial of the cause or the entry of any order which might have that effect, and which, unquestionably, was the design of the party asking such an order.”
In a case like this, where a cause is reversed by this court, and remanded to the trial court, with directions to proceed in conformity with the views of this court, it is clearly the duty of the trial court to examine the opinion and be governed as to the decree it will enter by the views expressed in the opinion. If the questions involved in the appeal have been considered and determined by this court upon the merits, in whole or in part, then it is the duty of the trial court to enter a judgment or decree as to those questions in accordance with the determination and decision of this court without a retrial, and it would be error, under such circumstances, to permit the pleadings to be amended and thereby so change the issues involved as to require a new trial upon the facts before a final decree was entered. If, however, the questions involved, or any of them, are not decided upon their merits by this court, and the cause is reversed and remanded to the lower court, with directions to proceed in conformity with the opinion of this court, then only the legal principles involved and which have been announced in its opinion by this court will control the lower court in its further consideration of the questions involved in the case which have not been determined on their merits in this court. The opinion of this court filed upon the first appeal was upon the question of the delivery of said deed upon the merits. The mandate of this court required the circuit court to proceed in accordance with the views expressed in that opinion, and upon the question of the delivery and validity of
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 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 re
pairs 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 premof, 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 hibit 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 misgovand 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 sufficient 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 iman
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