indemnity shall be referred to the grand lodge, is a condition precedent to the right of recovery of such indemnity. The case made by the appellee was that he became totally and permanently incapacitated to perform manual labor in consequence of personal injuries received in two railroad accidents. Three different claims for insurance for total disability were made by the appellee to the subordinate lodge, and were by the local order referred to the grand lodge, and were acted upon by that body. Counsel, however, urge that neither of such claims asked indemnity arising from personal injuries, and therefore insist that the claim on which the appellee recovered judgment had never been brought to the notice of the grand lodge or been acted upon by it. On this contention counsel base the remaining objections as to the ruling of the court in passing upon the instructions.

The appellee laid his respective claims before the subordinate lodge in some manner -whether verbally or by a written statement, or what cause was given for the disability, if any, by him in either of the claims, does not appear-and the subordinate lodge certified to the grand lodge that the appellee had applied for the indemnity. These certificates of the local lodge are in the record. Two of them make no reference to the cause of the alleged disability of the claimant, and the third contains a statement that the local lodge believes the claimant "is totally and permanently disabled from performing manual labor from the following cause: Tuberculosis, affecting principally the left lung; the disability is total and permanent." The evidence tended to show a locomotive engine on which the appellee was working as a fireman, in consequence of a washout of the track, was overturned, and he was caught between the cab and tank, and crushed and injured about the neck, breast, stomach, and other portions of the body; that he was pinioned in the wreck, and immersed in the swiftly running water; and that as a consequence of the injuries and the exposure he became afflicted with chronic catarrh and with tuberculosis of the left lung. This affliction is given in the last certificate of the local lodge to the grand lodge as the ground of the claim. It does not appear from the record but that the appellee, in the presentation of his claims to the subordinate lodge, disclosed the same and all of the causes of disability that appeared in the evidence on the trial. The appellee presented his claims in a manner satisfactory to the subordinate lodge; that body certified them, in accordance with the custom and usage of the order, to the grand lodge; the superior organization received and acted upon the claims as having been properly presented; and it cannot now be allowed to urge complaints as to the manner of the presentation of the claims. The instructions were in harmony with the views we have expressed.

The verdict and judgment included interest on the amount specified in the beneficiary certificate at the rate of 5 per cent. from the date of the rejection by the grand lodge of the claim of appellee last referred to that body. The certificate is for a specified sum of money, which appellee should receive if entitled to indemnity for total disability. That sum became due when the contingency of its payment accrued and the requirements of the by-laws as to the presentation of the claim had been complied with and payment refused. Interest was properly allowed from the date of such refusal. Massachusetts Mutual Life Ins. Co. v. Robinson, 98 Ill. 324; Supreme Lodge A. O. U. W. v. Zuhlke, 129 Ill. 298, 21 N. E. 789; Northwestern Traveling Men's Ass'n v. Schauss, 148 Ill. 304, 35 N. E. 747; Grand Lodge A. O. U. W. v. Bagley, 164 Ill. 340, 45 N. E. 538. In Railway Passenger, etc., Ass'n v. Loomis, 142 III. 560, 32 N. E. 424, and Same v. Tucker, 157 Ill. 194, 42 N. E. 398, 44 N. E. 286, the contract for indemnity was only partly in writing, and for that reason interest did not accrue under the statute.

The judgment is affirmed. The costs of the additional abstract furnished by the appellee will be taxed to the appellant lodge. Judgment affirmed.

PEOPLE ex rel. SELBY, County Treasurer, V. DYER.

(Supreme Court of Illinois. Dec. 16, 1903.) DRAINAGE DISTRICT-DEFECTIVE ORGANIZATION INCLUSION OF LAND IN ADJOINING TOWNSHIP-COLLATERAL ATTACK-COLLECTION OF ASSESSMENT.

1. The act to provide for drainage for agricultural and sanitary purposes (section 76), as amended by Laws 1901, p. 157, provides for the formation of a township drainage district. The commissioners are required to examine the lands, and their proceedings are to be placed on the drainage records, and the district is to be named and numbered. Where the lands are in two or more townships, the petition must be filed in the office of each town clerk, who shall give notice to the commissioners of his township. These commissioners are required to hold a joint meeting, and from their number to select three, who shall be the corporate authorities of the district. Held, that though a district organized only by the authorities of one township, but including lands in an adjoining township, was defectively organized, yet it constituted a de facto corporation, whose existence could not be collaterally attacked by the owner of land outside the township when a drainage assessment was sought to be enforced against him.

2. As the illegality went to the organization of the district as a whole, the attack could not be justified as not made on the organization of the district, but only on the validity of the assessment on the lands outside the township.

Appeal from Moultrie County Court; E. D. Hutchinson, Judge.

Proceedings by the people for the collection of a drainage assessment against the land of Jasper Dyer, in which Dyer files objections. From a judgment sustaining the objections, the people appeal. Reversed.

W. K. Whitfield, State's Atty., and Marion Watson, for drainage district. Eden & Martin and A. W. Lux, for appellee.

CARTWRIGHT, J. A petition to the commissioners of highways of the township of Lowe, in Moultrie county, signed by owners of lands in said township upon which ditches had been constructed by the voluntary action of such owners, was filed with the towu clerk of said township, asking for the formation of a drainage district to include all the lands to be benefited by maintaining such ditches, in pursuance of the provisions of section 76 of the act to provide for drainage for agricultural and sanitary purposes, as amended by an act in force July 1, 1901 (Laws 1901, p. 157). The petition included only lands situated in the township of Lowe, and the town clerk notified the commissioners of its receipt, and proceeded under the provisions of said section in relation to the formation of a drainage district of the township. Upon examining the lands to be benefited by reason of the proposed improvement of the ditches, the commissioners of highways concluded that the lands of the appellee in the adjoining township of Lovington would be benefited; and they proceeded to organize Drainage District No. 5 by user of the township of Lowe, including the lands of appellee, situated in the adjoining township. They classified the lands and assessed the same for benefits. The assessment against the lands of appellee was unpaid, and the county collector applied to the county court for judgment. The appellee appeared and filed his objections that the drainage district was organized, includ ing lands in two townships, by the commissioners of highways of the township of Lowe without the co-operation of the commissioners of highways of the township of Lovington; that his lands were located in the township of Lovington; and that he never voluntarily connected his drainage with any ditch or ditches constructed by said drainage district. The court overruled a motion to strike the objections from the files, and, the parties having made an agreed statement of facts as above, the objections were sustained by the court, and judgment was refused.

Section 76, as amended in 1901, provides for the formation of a drainage district of a township by petition addressed to the commissioners of highways, where the owners of adjoining lands have by voluntary action constructed ditches which form a continuous line or lines and branches. The commissioners are required to examine the lands which will be benefited or damaged by reason of the improvement, and their proceedings are to be placed on the drainage records of the township, and the district is to be named and numbered. The section also provides for the formation of a district where the lands affected are in two or more townships, and in that case the petition must be filed in the office of the town clerk of each township,

who shall give notice to the commissioners of highways of his township, and cause notice to be given to the owners of land situated therein. For such a district the commissioners of highways of the several townships are required to hold a joint meeting, and from their number select three, who shall be the corporate authorities of the district, and designate the supervisor of one of the townships as treasurer of the district. In this case the district was organized without complying with the provisions of the law. It included lands in the townships of Lowe and Lovington, and was organized as a drainage district of the township of Lowe. But although the district was not legally organized, it was a de facto drainage district, and the legality of the action of the commissioners in organizing it could not be inquired into upon the application of the county collector for the purpose of collecting the assessment. There was a valid law in existence, under which such a drainage district might have been lawfully organized, and there was an attempted organization and user of the franchises pertaining to a drainage district. The acts of its officers did not constitute a mere usurpation of power without the authority of any law, but there was an attempt to organize a district which might, in law, have been organized, and an actual user of the corporate franchise. American Loan & Trust Co. v. Minnesota & Northwestern Railroad Co., 157 Ill. 641, 42 N. E. 153; 8 Am. & Eng. Ency. of Law (2d Ed.) 748. In Trumbo v. People, 75 Ill. 561, it was found that a new school district was not legally formed because its boundary was nearer than one mile to a school house in another district, in direct violation of the law authorizing the formation of a new district, but it was held that the legality of the organization could not be inquired into in the collateral proceeding for the collection of a tax. The same rule was declared in Osborn v. People, 103 Ill. 224; Blake v. People, 109 Ill. 504; Evans v. Lewis, 121 III. 478, 13 N. E. 246; and other cases.

In a collateral proceeding for the purpose of collecting a tax or assessment, the court is without power to hear evidence for the purpose of determining whether a de facto corporation imposing the tax or levying the assessment was legally organized or not. Counsel for the appellee seem to concede that this is the rule, but they insist that they are not attacking the organization of the district or the right of the commissioners to levy an assessment within that part of the district in the township of Lowe, and they say they are only questioning the validity of an assessment on that portion of the lands in the drainage district which is not in the township of Lowe. They rely upon the decision in Payson v. People, 175 Ill. 267, 51 N. E. 588. In that case the district was established by the county court, which derived its jurisdiction from a statute requiring notice to the owners of lands, and the court was

without jurisdiction of one of the owners for want of such notice. There it was held that the action of the court was without jurisdiction and void, and therefore subject to collateral attack. That case we held not to be within the general rule. But there is no distinction between this case and any other attempt to question the organization of a corporation collaterally. The drainage district was organized as a whole, including lands in two townships, and the illegality affected the district as a whole. The ruling of the court in sustaining appellee's objections was in fact a holding that the district was not legally organized, and the objection that it was not so organized could not be made in this proceeding.

The judgment of the county court is reversed, and the cause remanded. Reversed and remanded.

county clerk of that county a tax levy of 2% per cent. for school purposes, and 14 per cent. for building purposes, on the taxable property of the district, for the year 1902. Appellant is the owner of property in that school district. It paid all of its taxes except the tax levied for building purposes. The county collector applied at the June term, 1902, of the county court of that county, for judgment and order of sale against the lands of appellant, among others, for delinquent taxes. Appellant filed its written objections to the tax for building purposes above mentioned, and upon a hearing the objections were overruled, a judgment and order of sale entered against its real estate for this tax, and it appeals to this court.

It is objected that the certificate of the directors was not in proper form. The certificate recites that the directors require "the amount of two and one-half per cent." to be levied for school purposes, "and one and onefourth per cent. for building purposes." The

WOLFF, County Treasurer.

(Supreme Court of Illinois. Dec. 16, 1903.) SCHOOL DISTRICTS-TAXES-CERTIFICATE TO COUNTY CLERK SUFFICIENCY BUILDING TAX-PAYMENT OF BONDS-PROPRIETY.

1. Under a statute requiring the directors of school districts to certify to the county clerk the amount of money to be raised for school purposes, leaving with the county clerk the clerical duty of ascertaining the rate at which the tax shall be extended, a certificate which states such rate, instead of the gross amount needed, though informal, will not invalidate the tax.

2. Const. art. 9, § 12, limits the amount of indebtedness which a school district may contract, and requires that it shall provide for the collection of a direct annual tax sufficient to pay interest on such debt as it falls due, and also to discharge the principal within 20 years. Hurds' Rev. St. 1901, c. 122, § 202, provides that, for supporting schools and repairing and improving schoolhouses, the directors shall be authorized to levy an annual tax, not to exceed a certain per cent., for educational, and a certain other per cent. for building, purposes. Held, that a school district could levy but two taxes-one for educational and one for building purposes-the proceeds of the latter being properly applicable to the payment of outstanding bonds issued to build a schoolhouse.

Appeal from St. Clair County Court; Jno. B. Hay, Judge.

Proceedings by the people, on the relation of Philipp Wolff, county treasurer, for the collection of a school district tax against the property of the Chicago & Alton Railway Company. From a judgment and order of sale entered against the railroad company's real estate, it appeals. Affirmed.

Chas. P. Wise, for appellant. James A. Farmer, State's Atty. (August Barthel, of counsel), for appellee.

SCOTT, J. On August 1, 1902, the directors of School District No. 4, township 2, range 10, St. Clair county, Ill., certified to the

1. See Schools and School Districts, vol. 43, Cent. Dig. § 242.

amount of money that is to be raised for their purposes, and leaves with the county clerk the clerical duty of ascertaining the rate at which the tax shall be extended; and the position of appellant is that the certificate should state the amount of money required, instead of stating the rate at which the tax shall be extended. In Chicago & Alton Railroad Co. v. People, 155 Ill. 276, 40 N. E. 602, we held that a certificate in the same form as this one was not a strict compliance with the statute, but that the informality did not invalidate the tax. We are not inclined to depart from the rule there announced.

It appears from the testimony taken in the case that there are two schoolhouses in the district. One was built between October, 1888, and January 1, 1901. The other was built in the fall of 1901. In October, 1888, bonds to the amount of $4,000 were issued in accordance with a vote of the people of the district, and the proceeds were used in erecting the first schoolhouse. Upon a like authorization, bonds to the amount of $2,200 were issued in September, 1901, and the proceeds were used in building the second schoolhouse. The greater part of all this bonded indebtedness is still outstanding. At the time of the levy of the tax for building purposes, in 1902, no building had been done by the directors since the completion of the schoolhouse. in 1901; and, so far as appears, no indebtedness of the district contracted for building purposes was in existence, except the bonded indebtedness above mentioned. No building operations were in contemplation, but the building tax was levied with the purpose of applying it upon the bonded indebtedness. The question to be determined is, can a tax be legally levied for building purposes when the intention of the directors is not to pay directly for the construction of buildings, but is to apply the tax,

when collected, to the payment of bonds of the district, the proceeds of which were used for building purposes?

Section 12, art. 9, of the Constitution of the state of Illinois, so far as applicable, is as follows: "No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness. Any county, city, school district or other municipal corporation, incurring any indebtedness as aforesaid, shall before, or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same." Section 202, c. 122, Hurd's Rev. St. 1901, so far as applicable, provides: "For the purpose of establishing and supporting free schools for not less than six nor more than nine months in each year, and defraying all the expenses of the same of every description, for the purpose of repairing and improving school houses, of procuring furniture, fuel, libraries and apparatus, and for all other necessary incidental expenses in each district, village or city, anything in any special charter to the contrary notwithstanding, the directors of such district and the authorities of such village or city shall be authorized to levy a tax annually upon all the taxable property of the district, village or city, not to exceed two and one-half per cent. for educational and two and one-half per cent. for building purposes (except to pay indebtedness contracted previous to the passage of this act), the valuation to be ascertained by the last assessment for state and county taxes."

The position of appellant is that there are three legal ways by which school boards may impose taxes-one under the constitutional provision for the purpose of paying interest and principal of bonded indebtedness, one for educational purposes under the statute, and one for building purposes under the statute-and that the tax here involved having been levied for building purposes, when it should have been levied to pay principal and interest of bonded indebtedness, cannot be sustained, even though that bonded indebtedness was incurred for building purposes. Language is found in the case of Baltimore & Ohio Southwestern Railway Co. v. People, 195 Ill. 423, 63 N. E. 262, which perhaps lends support to this view; but what was there said upon which appellant relies was unnecessary to the disposition of the question then before the court, and was, and should be treated as, mere obiter. There the school board levied one tax for school purposes, another tax for building purposes, and

The

still another for interest and sinking fund, which latter tax was to be applied upon the principal and interest of a bonded indebtedness incurred in obtaining money to be used for building purposes. The tax levy for building purposes in that case was held invalid, for reasons unnecessary to repeat here. tax for interest and sinking fund was sustained. That tax had not been objected to in the court below, and in fact had been paid by the objector before the filing of the objections. The county court, however, deeming it illegal, held that it should not be paid. It was properly sustained by this court for the reason that it had been paid, and because no objections had been filed to it. While it is true that the section of the Constitution from which we have quoted is self-executing, it is equally apparent that the Legislature intended, by the language of section 202, supra, to limit the levy of taxes by school officers to the rates fixed by that section of the statute, and that enactment is not in conflict with the constitutional provision under con sideration. If a bonded indebtedness has been incurred for educational purposes, the tax to meet it must be levied as an educational tax; and, if such indebtedness has been incurred for building purposes, the tax levied to meet it must be levied for building purposes, and the tax levied for either purpose, whether or not it includes any sum to be applied upon bonded indebtedness, cannot exceed the rate fixed by the statute for such purpose. We therefore hold that a school board can levy but two taxes-one for building purposes and one for educational purposes-and that bonded indebtedness must be paid out of the taxes so levied, and that the levy cannot exceed the rates provided by the statute. The term "educational," as used In section 202, supra, and the term "school." as used in the form for the certificate of the levy, which is found in the succeeding section of the statute, were intended by the Legislature to describe and refer to the same tax.

The judgment of the county court will be affirmed. Judgment affirmed.

MARIE M. E. CHURCH v. TRINITY M. E. CHURCH.

(Supreme Court of Illinois. Dec. 16, 1903.) STATUTE OF FRAUDS-ORAL TRUST-RESULTING TRUST-CHURCH MISSION-CAPACITY AS BENEFICIARY-FAILURE TO FURNISH MON

EY.

1. Under the statute of frauds, requiring all declarations or creations of trusts to be evidenced by some writing, and declaring all other express trusts utterly void, an oral agreement by the trustee of a church, to whom a mission property had been conveyed, to convey it to another church, to be held until the mission is incorporated, and then to be conveyed to the mission, is ineffectual to create a trust in behalf of the mission when incorporated.

2. A mission started by a church, at which persons attend religious services, and children

attend Sunday school, but at which no society for the purpose of religious worship has been formed, the enterprise being supported by the church, does not constitute such an entity as is capable of becoming the beneficiary in a resulting trust.

3. Evidence held to show that a church mission, claiming, after its incorporation, certain property, as the beneficiary of a resulting trust, did not pay the purchase price thereof.

Appeal from Superior Court, Cook County; Jesse Holdom, Judge.

Bill by the Marie Methodist Episcopal Church against the Trinity Methodist Episcopal Church. Decree for defendant, and plaintiff appeals. Affirmed.

Holden & Buzzell (William H. Holden, of counsel), for appellant. Walker & Payne, for appellee.

CARTWRIGHT, J. The superior court of Cook county sustained the demurrer of appellee to the amended bill of appellant, which prayed the court to declare and enforce a trust in favor of appellant in real estate of which appellee held the legal title, and to order a conveyance of the same to appellant. The bill was dismissed for want of equity, and this appeal was prosecuted from the de

cree.

The material facts alleged in the amended bill, which by the demurrer were admitted, are as follows: The Trinity Methodist Episcopal Church of Chicago and the First Methodist Episcopal Church of said city are religious corporations, which have been and are interested in the enlargement of the work of the denomination, and have solicited funds from Methodists and the public generally for the foundation of missions, which are ultimately to form churches of the denomination. In 1883 Wentworth Avenue Mission, in Chicago, was organized with the aid of members of the Trinity Methodist Episcopal Church. Harlow N. Higinbotham, who was trustee of Trinity Church, assisted in starting the mission, and contributed means for the advancement of its interests. Trinity Church and other friends of the mission undertook to obtain aid to furnish a suitable place for public worship, and for the Sundayschool and mission work; and the real estate in question in this case was selected to be purchased for the mission by a committee of Trinity Church, of which committee Higinbotham was a member. The members of the mission and its friends in Trinity Church, and some who were not members of any church, donated money to be used in the purchase of the real estate. It was purchased and the legal title conveyed to Higinbotham by deed dated February 23, 1884, and it was paid for with the funds so contributed to the mission. In April, 1884, Higinbotham and sundry members of Trinity Church, and other promoters of the mission, laid before First Church the needs of the mission and Sunday school so established under the patronage of Trinity Church, and First Church

thereupon paid $10,000 towards the contemplated building, and afterward contributed other moneys in aid of the mission. At the time of the gift by First Church, Higinbotham agreed that he would convey the real estate to said church within three years, free of incumbrance, and that First Church should hold it until there should be a legally incorporated Methodist church to take and hold it, when it should be conveyed by First Church to such new church, with the conditions usual in deeds of conveyance by First Church. A building was erected on the real estate, and there was expended in the purchase of the real estate and erection of the building over $40,000, which was wholly provided by friends and members of Trinity Church and by First Church and other contributors to the mission. On March 10, 1885, Higinbotham conveyed the property to the trustees of Trinity Church. The building was erected in part for business purposes, with a reservation for the use of the mission and its Sunday school. The building was dedicated October 18, 1885, as a church, under the name of "Marie Methodist Episcopal Chapel," and on that day the mission entered into possession. It continued in occupation as a mission under the patronage of Trinity Church. Some of the workers in the mission were workers in the church, and Higinbotham continued to be a trustee of Trinity Church, which contributed to the current expenses of the mission. Portions of the property were rented by Trinity Church, and until 1901 the rent was devoted by that church to the current expenses of the mission. Up to that time Trinity Church contributed considerable sums of money in addition to the income from the rent of the property. the year 1898 Trinity Church published a directory, in which it designated Marie Chapel as a Trinity M. E. mission, and mentioned Marie Chapel Sunday School among its societies and organizations. It also stated that Trinity M. E. Mission, a fine property on Wentworth avenue, erected at a cost of $40,000, was dedicated in October, 1885. After 1900 Trinity Church ceased to apply the rents to the expenses of the mission, or to contribute to such expenses. On February 11, 1901, the unincorporated society became incorporated under the name and style of Marie Methodist Episcopal Church of Chicago, and soon after it demanded a conveyance of the legal title. Trinity Church replied, through Higinbotham, declining to make the conveyance, but offering to make a lease of the premises occupied by the mission for a nominal consideration. Since the incorporation of the mission as a church, it has had a regularly appointed pastor and membership, and has occupied the property, except the portion rented by Trinity Church to tenants.

In

The alleged verbal agreement of Higinbotham in 1885 that he would convey the real estate to the First Church within three years,