for a fixed term, carries with it the exclusive possession of the premises for that term. Entire possession by a tenant from foundation to roof doubtless involves the duty of keeping a grate in front of the premises in repair, which otherwise rests on the owner of the fee. * * * If he parts with the premises, or parts with the possession thereof for a period, the burden falls on his successor in title or possession. If he transfers either title or possession in part, only, he does not escape the burden. The implied duty assumed when the hole was cut and the grate placed over it requires reasonable precaution on the part of the owner to protect the public as long as he remains the owner and is in possession of any part of the building on the abutting land." We are advised of no authority for the view announced in the instruction, that in such cases the owner must answer to any one injured as long as the owner derives "compensation" for the use of the premises, whether such owner has the control and possession or the possession and right of control are in another. The instruction conveyed an erroneous proposition to the jury, and we cannot say but that such error contributed to the verdict and judgment against the appellant company.

As the judgment must be reversed and the cause again tried, it is necessary we should declare whether the liability is that of the owner or the occupant, in a case where the occupant is a tenant and has leased a portion, only, of the premises under covenants which, as between the owner and the tenant, make it the duty of the latter to keep the demised premises and the appurtenances thereto in good repair, and the portion so leased includes a vault under the sidewalk of a public street and a coalhole opening into the vault, the vault and coal-hole having been constructed with the consent of the city. If the coal-hole and vault were constructed and are used for the benefit of the entire premises, the leasing of a portion, only, of the premises would not absolve the owner

from his duty to use ordinary care to keep the coal-hole and the covering thereto in a good and safe condition; but if the vault into which the coal-hole opens has no connection with any other part of the building than the basement leased to the tenant, and no benefit inures from it to any other portion of the premises, and the tenant, as against the owner, has, and is entitled to have, exclusive possession and control of the basement, coal-hole and vault, and has covenanted to keep the same in good repair, then the case should be regarded as within the operation of the general rule that the occupant of the premises, and not the owner thereof, is responsible for injuries received in consequence of a failure to keep the premises in repair.

The judgment of the Appellate Court and that of the circuit court must be and are each reversed, and the cause remanded to the circuit court for further proceedings not inconsistent with the views here announced.

Reversed and remanded.

B. LOEWENTHAL

บ.

THE PEOPLE ex rel. Raymond, County Collector.

Opinion filed October 24, 1901.

1. TAXES courts have no power to revise assessments for errors of judgment. Courts have no power to revise assessments made by the board of assessors and approved or revised by the board of review, upon the ground that those bodies fell into an error of judgment in estimating the value of the property.

2. SAME-party must bring mandamus to preserve his right to a hearing of his complaint of over-valuation. On application for judgment of sale the county court cannot entertain an objection that the property was assessed too high, even though it is stipulated that the board of review had promised to act upon the tax-payer's complaint of over-valuation, and that his first notice to the contrary was that the board had delivered the books to the county clerk, since, under the proviso to section 38 of the Revenue act of 1898,

(Laws of 1898, p. 49,) the tax-payer could have brought mandamus to compel the board to act upon his complaint, even though the books were turned over. (CARTWRIGHT and HAND, JJ., dissenting.)

3. MANDAMUS-virtual refusal to perform duty is sufficient basis for mandamus. Any evasion of a positive duty by an officer or a legal tribunal, amounting to a virtual refusal to perform such duty, is all that is needed to maintain a writ of mandamus.

4. SAME mandamus will lie to compel tribunal to re-convene and perform an omitted duty. An inferior tribunal which has omitted, and by evasion refused, to perform an official duty while convened, cannot, by adjourning its meeting sine die, place itself beyond the power of the courts to compel by mandamus the performance of a duty enjoined by law.

MAGRUDER, J., does not concur.

APPEAL from the County Court of Cook county; the Hon. M. W. THOMPSON, Judge, presiding.

STEIN & PLATT, for appellant:

Where the levy of a tax involves a determination of values the tax-payer has a right to a hearing, and the enforcement of the tax without an opportunity for a hearing is a taking of property without due process of law. Railway Tax cases, 13 Fed. Rep. 722; Nixon v. Ruple, 30 N. J. L. 59; Remsen v. Wheeler, 105 N. Y. 573; In re Union College, 129 id. 308; Edes v. Boardman, 58 N. H. 580.

A statute cannot authorize the officers entrusted with its execution to disregard provisions essential to its constitutionality. Plumer v. Supervisors, 46 Wis. 153.

Mandamus will not lie unless the officer sought to be controlled has refused to perform his duty and unless such a performance is possible at the time the writ is sought. High on Ex. Legal Rem. secs. 12-14; Spelling, secs. 1377-1381; Spiritual Society v. Selectmen, 58 Vt. 192; People v. Darling, 96 Ill. 503; Swigert v. Hamilton County, 130 id. 538; State v. Perrine, 5 Vroom, 254; People v. Klokke, 92 Ill. 134; People v. Lieb, 85 id. 484; People v. Mount Morris, 137 id. 576.

The provisions of a revenue law requiring an oppor tunity for a tax-payer to be heard are for the benefit of

the tax-payer, and compliance with them is essential to the validity of the tax. Darling v. Gunn, 50 Ill. 424.

Strict compliance with all provisions of a revenue law intended for the protection of a property owner is essential to the validity of the tax. Marsh v. Chestnut, 14 Ill. 223; Howe v. People, 86 id. 288.

JULIUS A. JOHNSON, County Attorney, and FRANK L. SHEPARD, Assistant County Attorney, for appellee:

The valuation and assessment of appellant's property for purposes of taxation is by the constitution and statutes of this State vested exclusively in the board of assessors in the first instance, and, upon review, in the board of review, and the county court was without jurisdiction to set aside the assessment as made and confirmed and re-assess appellant's property, and that court properly overruled the objections and rendered judgment for the tax. Spencer v. People, 68 Ill. 510; Swinney v. Beard, 71 id. 27; Insurance Co. v. Pollak, 75 id. 292; Porter v. Railroad Co. 76 id. 561; Adsit v. Lieb, id. 198; People v. Iron Co. 89 id. 116; Railway Co. v. People, 119 id. 182; Phoenix Stock Exchange v. Gleason, 121 id. 524; Railroad and Coal Co. v. Stookey, 122 id. 358; Sterling Gas Co. v. Higby, 134 id. 557; People v. Lots in Ashley, 122 id. 297.

Appellant's remedy was before the board of review. It was the duty of that tribunal to review the assessments and hear and determine complaints of over-valuation. If appellant failed to secure a hearing before the board of review upon his complaint of over-valuation, as now argued, he should have availed himself of the ample and adequate remedy of the writ of mandamus to secure action on the part of the board of review, in order that his complaint, if any he justly had, should be heard and determined. Beidler v. Kochersperger, 171 Ill. 563; Kinley Manf. Co. v. Kochersperger, 174 id. 379; Kochersperger v. Larned, 172 id. 86; New Haven Clock Co. v. Kochersperger, 175 id. 383; Felsenthal v. Johnson, 104 id. 21; Cooley on Taxa

tion, 521; Gibbs v. County Commissioners, 19 Pick. 298; Bank v. Utica, 4 Paige's Ch. 399; High on Ex. Legal Rem. secs. 139, 140, p. 117.

Mr. JUSTICE BOGGS delivered the opinion of the court:

This was an application by the appellee county collector of Cook county; to the county court of said county, for a judgment and order of sale against lands and lots delinquent for the taxes levied thereon for the year 1899. The delinquent list contained four lots in the city of Chicago of which the appellant was the owner. The appellant appeared and filed objections to the rendition of judgment against each and all of the said lots. The objections were heard upon a stipulation setting forth the testimony of the witnesses, and also certain facts; were overruled, and an order and judgment for the sale of the lots granted as prayed by the collector. This is an appeal to reverse the judgment and order of sale.

It appeared from the stipulation the appellant was the owner of the lots on the first day of April, 1899; that their total fair cash value did not then exceed the sum of $153,000; that the valuation of the lots as returned by the board of assessors to the board of review was $206,575; that George C. Fry, a duly authorized agent of the appellant, "at various times called at the office of the assessors for the purpose of ascertaining the value at which said property had been assessed; that as soon as he was able to learn from said board of assessors the valuation fixed by said board of assessors, said Fry called at the office of the board of review and filed a complaint, in writing, objecting to the amount at which said property had been assessed; that said complaint was filed during the latter part of August, 1899, and not on or before the first Monday in August, but that said complaint was filed as soon as said Fry, representing the owner of said property, and as soon as B. Loewenthal, the owner of said property, could learn the amount