Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

their homestead, they would execute to him a release of all their claim in and to the premises. This offer the complainant did not accept, but filed his replication, and the cause proceeded to a hearing before the chancellor, upon which the bill was dismissed. To reverse the decree of dismissal, this appeal is prosecuted.

It is conceded that the premises in controversy were the homestead of appellees, and were of the value of about $2,500. At the time of the sale, on February 23, 1901, by the sheriff of Fulton county, under appellant's execution, there were no proceedings for assigning or setting off the right of homestead, as provided in sections 10 and 11 of chapter 52 of our statutes (Hurd's Rev. St. 1899, p. 868). By that sale the judgment became satisfied, and the only interest which appellant then had in the premises was the legal title to the excess over $1,000. v. Brand, 200 Ill. 403, 65 N. E. 780.

Krupp

prayed in appellant's bill would be to deprive appellees of their homestead without any default or laches upon their part, and to give appellant a greater title in said premises than he is entitled to under the statute.

The homestead of appellees has in no way been extinguished, and it now exists paramount to any claim appellant may have in the premises. He could only enforce a claim against the homestead premises by a bill, with proper averments, offering to pay defendants the value of their homestead, or asking the court to order the appointment of commissioners to set off the same to them. He contends that he is entitled to some such relief upon this bill under the general prayer for relief. Having failed to accept the offer of defendants to take $1,000, and filed his general replication to the bill, the relief could only be in conformity with the averments of the bill supported by the proofs. A decree in chancery cannot grant relief, though warranted by the evidence, where there are no allegations in the bill to which the proofs can be applied. Dorn v. Geuder, 171 Ill. 362, 49 N. E. 492. In that case we said (page 369. 171 Ill., page 494, 49 N. E.): "It is a fundamental rule of equity pleading that the allegations of the bill, the proof, and the decree must correspond, and that the decree cannot

dence would warrant where there are no averments in the bill to which the evidence can apply, and that, if the evidence disproves the case made by the bill, the complainant cannot be given a decree upon other grounds disclosed by the proofs, unless the court permits the complainant to amend his bill so as to present the case disclosed by the evidence." Citing a long line of authorities.

Our statute provides (chapter 52, § 4) that the only way a homestead may be released or waived is by virtue of a writing signed and acknowledged by the householder and his wife, the same as a deed, and, if this writing be a mortgage, it shall only operate as to the specific release of homestead therein contained. The appellees, by their mortgage to Jane Hand, had made this release of home-give relief that facts disclosed by the evistead as provided in this section, and it was therefore included in the foreclosure sale of August 19, 1901. From that sale, however, the appellant could redeem only by virtue of section 18 of chapter 77 of our statutes, as one interested in the premises; the only effect of his redemption, as provided in that section, being to render null and void the sale and certificate of the master. No greater right is conferred by that section. If he had redeemed as a judgment creditor, as provided in sections 20, 21, 22, 23, and 24 of the same chapter, the right acquired would have related back to the judgment or decree from which the redemption was made, and would be paramount to any title acquired subsequent to the beginning of the lien of such judgment or decree, and would in this case have covered the homestead rights of appellees. Smith v. Mace, 137 Ill. 68, 26 N. E. 1092. If appellant had permitted his execution to remain as a lien upon the premises, and had not sold the same and acquired the title by sheriff's deed, he could have redeemed under these last-named sections, and would have been entitled to the relief herein sought; but by his sale and sheriff's deed he could, as already said, only redeem by virtue of section 18, which does not give him the rights prayed for in his bill.

Under the statute the appellees had one year from the date of sale under said mortgage during which they could have redeemed and saved their homestead rights. The appellant, by his redemption 15 days before the expiration of the year, deprived appellees of this right; and now to grant the relief as

The allegations and prayer of this bill are very specific, and under the law the relief sought could not be granted. The ruling of the circuit court in dismissing the bill at complainant's cost was right, in the absence of any request by him for leave to amend his bill. We are, however, of the opinion that, in view of the equities of the case, the dismissal should be without prejudice, and the decree below will be so modified. The costs must be paid by appellant.

Decree modified and affirmed.

PEOPLE ex rel. RICE v. BURKE.
(Supreme Court of Illinois. Dec. 16, 1903.)
MUNICIPAL CORPORATIONS-ORDINANCES-EN-
ACTMENT
-LOCAL IMPROVEMENTS-SIDEWALKS.

AMENDMENT

REPUBLICATION

1. Where an ordinance for the construction of a sidewalk provided that it should be constructed on a grade established by an ordinance then on file and of record in the office of the city clerk, and such ordinance was on file and in force during the time when an abutting prop erty owner was entitled to build the sidewalk, it was immaterial that it was passed and spproved on the same day that the sidewalk ordinance was passed, and had not been actually

[ocr errors]

recorded by the clerk at the time of the passage of the latter ordinance.

2. Where a city charter provided that the style of ordinances should be, "Be it ordained by the city council of the city of Carlinville." an ordinance containing an enacting clause, "Be it ordained by the city of Carlinville," was not void for want of a literal compliance with the charter.

3. An ordinance for the construction of sidewalks, requiring "property crossings for the use of property owners,' was not void for failure to designate the location, number, or method of construction of such crossings.

4. Where a sidewalk ordinance provided for the construction of a sidewalk with paving brick, and the ordinance as published contained an error in the size of the brick, which was subsequently amended, and the amendatory ordinance was published more than 30 days before the construction of the sidewalk by the city, such amendment did not require a republication of the entire ordinance.

Appeal from Macoupin County Court; J. B. Vaughn, Judge.

Application by the people, on the relation of E. T. Rice, the county collector of Macoupin county, against Don A. Burke, for judgment for delinquent special taxes. From a judgment sustaining defendant's objections to the tax, the collector appeals. Reversed.

A. J. Duggan, for appellant. Rinaker & Rinaker, for appellee.

CARTWRIGHT, J. The county court of Macoupin county sustained objections to the application of the county collector of said county for judgment for delinquent special taxes levied by the city of Carlinville against lots and lands of appellee in said city for the construction of brick sidewalks along said property, and refused to enter such judgment. There were two separate sidewalks constructed under separate ordinances, one called the "Plum street sidewalk" and the other the "West Main street sidewalk." The ordinances were passed under the sidewalk act of 1875 (Laws 1875, p. 63), providing for construction by the owners of lots within 30 days, and that the city would pay to an owner constructing the same in front of his property one-third of the cost thereof. If constructed by the city, it was provided that two-thirds of the cost of constructing the same should be levied as a special tax upon the lots and parcels of land abutting thereon. It was admitted by the appellee that the sidewalks were constructed under the ordinances, and it was not denied that his property received the full benefit of the improvement. There was no pretense that he was misled in any way to his injury by anything that was done, or that the ordinances were not sufficiently specific, so that he could have constructed the sidewalks if he had been so disposed. The ordinances provided that, if he did so, the city would pay him one-third of the cost of construction.

Special taxes must be imposed by lawful authority, and in substantial conformity with

[blocks in formation]

the power conferred; but a natural and reasonable construction is to be given to ordinances, and a substantial compliance with the law is all that is required. The objections in this case were without substantial merit. Each ordinance provided that the sidewalk should be built on a grade established for such street by an ordinance of the city. The ordinance for the sidewalk on Plum street provided that it should be constructed on a grade established by an ordinance then on file and of record in the office of the city clerk. One objection is that the ordinance establishing the grade and the sidewalk ordinance were passed and approved on the same day, and that the ordinance fixing the grade had not been actually recorded by the clerk when the sidewalk ordinance was passed. It is not disputed that the ordinance was on file in the office of the city clerk, and was in force, and furnished to appellee all the information necessary to enable him to construct the sidewalk on the grade fixed by the ordinance. The ordinance fixing the grade was in forcé during the time when he was entitled by law to build the sidewalk, and it was referred to in the sidewalk ordinance, and that was sufficient. Parker v. Vilage of La Grange, 171 Ill. 344, 49 N. E. 550.

The ordinance for the sidewalk on West Main street required it to be upon the grade established by an ordinance on file in the office of the city clerk. The ordinance so referred to was adopted and in force before the adoption of the sidewalk ordinance, and the objection to it is that it is void because the enacting clause was in this form: "Be it ordained by the city of Carlinville," while the charter provides that the style of ordinances shall be as follows: "Be it ordained by the city council of the city of Carlinville." In the case of Law v. People, 87 Ill. 385, where the enacting clause said "common council" instead of “city council," as required by the charter, it was decided that the ordinance was not void; and this is in accordance with the general rule that provisions as to the form of the enacting clause of ordinances are directory merely, and a failure to follow a prescribed form will not render the ordinance void. 21 Am. & Eng. Ency. of Law (2d Ed.) 975.

Each ordinance provided for the construction of the sidewalk with necessary crossings, which plainly referred to crossings over the sidewalk for the use of property owners. It was agreed on the trial that the term "property crossings" meant that part in the line of the sidewalk over which the owner would travel with a wagon or other vehicle in going from the street upon his property or leaving the same. Appellee objected that the location, number, or method of construction of such crossings was not fixed by the ordinances. It is manifest that it would be impossible, in an ordinance for a sidewalk, to provide the exact location or number of such crossings necessary or convenient for

the property owner in going to and from the street. It would be unreasonable to require an ordinance to specify that such a crossing should be put at a given point, but the necessities of the situation would determine the location and number of such crossings. There was no objection and no evidence that crossings were not put in where necessary, or were constructed where unnecessary. It was agreed that the custom in the city of Carlinville was to construct crossings by placing bricks edgewise instead of fat, as the rest of the walk was laid. If there were no other provision than the general description of the sidewalk, the ordinance would not be void as lacking in matter of description, but the agreement was sufficient to show the meaning of the ordinance as to the construction of the crossings.

The ordinance for the sidewalk on West Main street was passed October 2, 1899, and contained an apparent mistake in the size of the brick, which were required to be four inches by four inches by eight inches-not the form of paving brick. The ordinance was published, and was subsequently amended so as to make the description of the brick two inches by four inches by eight inches, and the amendatory ordinance was published more than 30 days before the construction of the sidewalk by the city. It is objected that the whole sidewalk ordinance, as amended, was not again published. Counsel do not point out any requirement that an ordinance so amended shall be again published, or cite any authority to that effect, and we know of none.

None of the objections were sufficient to defeat the collection of the tax, and the court erred in sustaining them.

The judgment is reversed, and the cause remanded. Reversed and remanded.

FOOTE V. LAKE COUNTY. (Supreme Court of Illinois. Dec. 16, 1903.) COUNTY TREASURER-DUTIES-COMPENSATION -DUTIES AS SUPERVISOR OF ASSESSMENTS.

1. Act Feb. 25, 1898 (Hurd's Rev. St. 1899, p. 1444, c. 120, § 2), provides that in counties of less than 125,000 the county treasurer shall be ex officio supervisor of assessments; that he shall have an office furnished by the county board, which he shall keep open during specified hours; and that he may appoint deputies and clerks, whose compensation shall be fixed by the county board and paid by the county. Held, that the statute did not create a new office, so as to entitle the county treasurer to compensation for his duties performed under the statute; the term "ex officio" implying that the county treasurer shall be supervisor of assessments by virtue of his office as county treasurer, and as appurtenant thereto.

Appeal from Appellate Court, Second District.

Action by Anna F. Foote against Lake County. From a judgment of the Appellate

Court affirming a judgment in favor of defendant, plaintiff appeals. Affirmed.

R. W. Coon, for appellant. S. Delano Talcott, State's Atty. (Leslie P. Hanna, of counsel), for appellee.

CARTWRIGHT, J. On September 23, 1898, the county board of Lake county fixed the salary of the county treasurer of said county for the term beginning on the first Monday of December, 1898, at $1,500 per year and necessary clerk hire. John M. Foote was elected to said office at the November election, 1898, and entered upon the duties thereof on the first Monday of December of said year. He continued to hold the office and perform its duties until his death, on April 27, 1901. During that time he filled the office and performed the duties of supervisor of assessments of said county in pursuance of the provisions of the act entitled "An act for the assessment of property and providing the means therefor, and to repeal a certain act therein named," in force July 1, 1898. Hurd's Rev. St. 1899, p. 1444, c. 120. After his death, appellant, Anna F. Foote, executrix of his will, presented to the county board a claim against the county for $1,208.34 for his salary as supervisor of assessments during the time he filled that office. The county board allowed $425 of the claim, and disallowed the balance. An appeal was taken to the circuit court, and, a jury having been waived, the case was tried by the court. Plaintiff introduced evidence that the services performed by John M. Foote as supervisor of assessments were reasonably worth from $500 to $600 per year. Defendant offered no evidence, and plaintiff then tendered to the court the following propositions, and asked the court to hold the same as the law:

"The court holds as a proposition of law that 'An act for the assessment of property and providing a means therefor, and to repeal a certain act therein named,' approved February 25, 1898, created and provided a new office designated as supervisor of assessments, with duties, obligations, and compensation as therein named, and the duties and obligations were not simply added duties to the office of county treasurer.

"The court holds, as a proposition of law, that the office of supervisor of assessments created by the act of 1898 is an office with a salary attached to it, payable out of the county treasury; and such salary, unless otherwise agreed upon, is a reasonable compensation for the duties and services required by the law creating the office."

The court refused both of the propositions, and plaintiff excepted. The claim was disallowed by the court, and judgment was entered against the plaintiff for costs. The plaintiff sued out a writ of error from the Appellate Court for the Second District, and, on a review of the judgment by that court, it

was affirmed, and a certificate of importance was granted, under which it was brought to this court by appeal.

The questions of law in the case arise from the refusal of the above propositions of law by the trial court, and the exception of the plaintiff thereto.

It is contended that the act of 1898 for the assessment of property creates a new office, designated as "supervisor of assessments," with duties, obligations, and compensation pertaining thereto as an independent office; that the duties are not simply added duties to the office of county treasurer; that the office is one with a salary, payable out of the county treasury; and that, if the salary is not agreed upon between the officer and the county board, he may recover what the services are reasonably worth. The county board had fixed the compensation of John M. Foote as county treasurer after the act of 1898 was in force, and before his election; and if that act does not create a new office, but merely annexes new duties to the existing office of county treasurer, there could be no recovery in the case. Section 10 of article 10 of the Constitution requires the county board, except as provided in a previous section relating to Cook county, to fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses, and provides that the compensation of no officer shall be increased or diminished during his term of office. Section 38 of chapter 34 of our statutes (Hurd's Rev. St. 1899, p. 494) provides that the time to fix the compensation of county officers whose compensation is to be fixed by the county board shall be at the meeting of such board next before the election of such officer whose compensation is to be fixed, or the next regular or special meeting to be held thereafter. In this case the compensation of the county treasurer was fixed, in accordance with the statute, at the meeting preceding the election, and it covered his entire compensation for duties performed by virtue of his office of county treasurer. Section 2 of the act of 1898 provides that in counties under township organization, of less than 125,000 inhabitants, the county treasurer shall be ex officio supervisor of assessments in his county; that he shall have a suitable office, to be provided and furnished by the county board, which he shall keep open during certain specified hours; and that he may, with the advice and consent of the county board, appoint necessary deputies and clerks, their compensation to be fixed by the county board and paid by the county.

Hurd's Rev. St. 1899, p. 1444. c. 120, § 296. As supervisor of assessments, he is charged with certain duties by the act, and is required, before he enters upon the duties of his office, to give a bond, with sureties, and to take and subscribe an oath to discharge the duties of the office. Section 46 of the act contains the following: "The salary

of the county assessor, supervisor of assessments, and members of the board of assessors and board of review shall all be paid out of the county treasury on bills duly certified and approved by the county board." Hurd's Rev. St. 1899, p. 1455, c. 120, § 340.

We think it clear that the act of 1898 did not create a new office. The provision is that the county treasurer shall be ex officio supervisor of assessments in his county. The term “ex officio" implies that the county treasurer shall be supervisor of assessments from or by virtue of his office as county treasurer, and as appertaining to such office. His authority to act as supervisor of assessments, under the statute, is derived from his official character as county treasurer; and the duties of supervisor are annexed to his official position as a consequence thereof, without any other appointment or authority than that conferred by the office of county treasurer. By the revenue act of 1845 (Rev. St. 1845, p. 441, c. 89, § 27) it was provided that the sheriff of each county should be ex officio the collector of taxes; and it was decided in Wood v. Cook, 31 Ill. 271. that thereby it became one of the duties of the sheriff to collect the taxes; that the law simply imposed the duties of collector upon the sheriff, and the fact he was required to give an additional bond to secure the performance of the new duties did not change the character of the office. Section 144 of the act of 1872 for the assessment of property and the lev and collection of taxes provides that the treas urers of counties under township organization shall be ex officio county collectors of their respective counties; and in Kilgore v. People, 76 Ill. 548, it was decided that no new office was thereby created, but that new duties were imposed upon existing officers, who were required to give new bonds for the performance of additional duties. It was therefore held that an allowance of compensation to a county treasurer necessarily included the duties performed by him as collector. It is true that one person may, in the absence of any prohibition, hold two offices, and that the language of an act may show that such was the legislative intent. That was the case in People v. Lippincott, 67 Ill. 333, where the court passed upon the act of January 29, 1869 (Pub. Laws 1869, p. 49), requiring circuit judges to observe defects and omissions in the statute, and report the same, with their views as to amendments, and to prepare bills in conformity with such views. The duties imposed by that act were not judicial or pertaining to the office of circuit judge, and it was held that the designation of the circuit judges as commissioners for the revision of the laws was merely descriptio persona. They were not required to perform such duties ex officio, as pertaining to the office of circuit judge, while in this case the language indicates that the new duties merely resulted from holding the office of county treasurer. The assessment and collection of taxes both relate to the revenue, and are intimately connected with each

other. They are but different steps in the statutory scheme of taxation.

There being no new office, the compensation fized by the county board included payment for all the duties prescribed for the county treasurer as supervisor of assessments under the act of 1898. Whatever salary or compensation John M. Foote was entitled to under the act of 1898, or any of its provisions, was included in the compensation so fixed as county treasurer. We conclude the court was right in refusing the propositions of law.

The judgment of the Appellate Court is affirmed. Judgment affirmed.

BECKER v. BECKER.

(Supreme Court of Illinois. Dec. 16, 1903.) WILLS CONSTRUCTION-FEE-LIMITATION. 1. Where a testator devised all his realty to his wife, and, with the exception of certain specinc bequests, bequeathed to her all his personalty, declaring that she was to have full charge of the estate, without any restriction of any nature, a further provision that she was never to marry again, and that, if she did, his estate was to be divided equally between her and his brothers, did not reduce the fee theretofore given to a life estate.

Appeal from Circuit Court, Peoria County; T. N. Green, Judge.

Action by Edward Becker against Lizzie Becker. From a judgment for defendant, plaintiff appeals. Affirmed.

Ellwood & Meek (Nicholas Michaels, of counsel), for appellant. Arthur Keithley, for appellee.

BOGGS, J. A general demurrer presented to a bill in chancery filed by the appellant, praying for partition of certain real estate of which one William H. Becker died seised, was sustained, and a decree entered dismissing the bill at the cost of the complainant. Said William H. Becker departed this life April 1, 1901, leaving the following last will and testament:

"1 p. m., Peoria, Illinois, July 30, 1897. "This is my last and only will that I have made up to this date. I wish to leave all of the building known as the Niagara building, all of the mortgages, notes and stocks, horses, carriage, buggy and cart, all of the furniture in our home, also all furniture, piano, lodgeroom furniture, two large pictures and grillwork in Elks' lodgerooms, on the seventh floor Niagara building, to my wife, Lizzie Becker.

"I wish to give to George Becker, my brother, of Terre Haute, Indiana, the sum of $500; Edna Smith, of West Chazy, N. Y., $500; Edward Becker, of Chicago, Ill., $1,000; to Austin F. Johnson, of Peoria, Ill., $50, and to Emile Becker, residence unknown, the sum of $5.

"My wife, Lizzie, to have full charge of my estate after my death, without any restrictions of any nature. My wife, Lizzie, 69 N.E.-4

never to marry again, and if she does, my estate to be divided equally between my brothers, George Becker and Edward Becker, and my wife, Lizzie Becker.

"Signed at 1:30 p. m. on this 30th day of July, 1897. W. H. Becker. [Seal.]" There is no allegation in the bill that the widow has remarried.

The theory of the bill is that, under a proper construction of the will, the last clause thereof, placing a restriction on marriage by the widow, and providing for the devolution of the title to the property in the event of her remarriage, has the effect, in law, of limiting the estate taken by the widow under the will, that otherwise might have been a fee simple, to a life estate, except in the one-third interest with which the will provided she should be invested in case of her remarriage, and that appellant, as devisee under said final clause, is invested with a one-third interest, subject to the life estate of the widow. The chancellor did not err in refusing to accept this as the proper construction of the will. The first clause of the will, if standing alone, is clearly sufficient to invest Lizzie, the widow, with an absolute estate in fee simple in the real estate. It contains no technical words of inheritance, but, since the adoption of section 13 of our conveyance act, such words are not necessary to the creation of a fee. This clause is, however, to be construed with the final clause in the will, and the estate devised determined from the consideration of both clauses. Saeger v. Bode, 181 Ill. 514, 55 N. E. 129.

The growing tendency of courts has become a settled policy to adopt the construction of a will that will give an estate of inheritance to the first devisee unless other limiting or qualifying clauses in the will disclose clearly and unequivocally that it was the intention of the testator to limit or qualify the estate granted. When this will, in all its parts, is read, the intention of the testator is clearly disclosed. It was to give to his wife a fee-simple estate, subject to be defeated as to a two-thirds interest therein if she should remarry. The testator desired to vest in his wife an estate having all of the qualities of an absolute fee so long as she remained his widow, and in case of her remarriage he desired two-thirds of that estate to vest in his brothers, George and the appellant, Edward. No rule of law exists to prevent the accomplishment of such wishes of the testator. In Underhill on Wills (section 507), it is said: "No rule of law prevents the testator from giving her a fee simple in lieu of dower, which shall be defeasible and shall go to others on her remarriage. Thus, where the testator, in general terms, devises land in trust, to pay the income to the widow for an indefinite period, without words of perpetuity or inheritance [and a fortiori when it is to her and her heirs], with a proviso that, if she shall remarry, the land is to go to others, she takes

« ΠροηγούμενηΣυνέχεια »