acts, in the extension of the tax, and issuing his warrant for its collection, alone on such certificate. Nothing more is necessary under the statute to constitute it, as extended, a valid tax. The making of the certificate and filing it, as required by law, by the board of directors, is of itself a de termination of the amount necessary to be raised for the purposes therein indicated. And conceding, as must be done, that the determination of the amount to be raised, and the making and filing of the certificate of levy, are official acts, which alone can be performed by the board of directors acting in their corporate capacity, and that, therefore, the clerk of the board is required to keep a record thereof, the question presented is, will his failure to do so render the tax void? We have seen that the officers charged with carrying the levy forward act alone upon the certificate. They do not act upon the record of the board of directors as made by the town-clerk. The machinery of the law which is to result in realizing the money required to carry on this governmental purpose is put in motion and vitalized by the certificate thus filed and transmitted to the clerk. We are of opinion that the failure of the clerk of the board to perform the duty enjoined by the 17th section of the act, or of the board to require it of him, cannot have the effect to render the tax void. Ordinarily quasi municipal corporations speak only by their record, but it is entirely competent for the legislature to prescribe what is necessary to be done by the municipal officers to constitute valid municipal acts, and what shall be the evidence of the same. And the legislature having prescribed what shall constitute a valid levy of the tax, and what shall be done to perfect the same and realize the money levied, it must be held that the requirement that the clerk shall keep a record of the official acts of the boards of directors, in respect of the levy of such tax, is directory only. The matter of keeping a record does not go to the question of the power of the board to levy the tax. It would, if kept, only be evidence of the exercise of the power and authority vested by law in the directors, and the statute has made the evidence of such exercise of power the certificate on file in the office of the county clerk. The validity of the tax not resting upon the record made by the clerk of the board of directors, a failure to make a record thereof will not render the tax levied in accordance with the law invalid. No discussions of other portions of the bill will be necessary. None of the objections made go to the substantial justice of the tax, and we are of the opinion that the allegations of the bill do not bring the case within any of the exceptions before stated, and that the demurrer was properly sustained thereto.

We are of opinion, however, that in respect to the matter of awarding damages upon dissolution of the injunction the error is well assigned. The only evidence to sustain the suggestion of damage was that of two witnesses, one of whom testified: "Knew of the services rendered by the attorney for the defendant in this case. He heard the argument had upon the de

"

murrer of defendant to the complainant's bill, and that such services are reasonably of the value of $50." And another, who testified: "That the value of the services of defendant's counsel in this case is $50." It is to be noted that one testified who knew of the services rendered by the attorneys "in this case" and heard the arguments on demurrer, and "that such services were reasonably of the value of $50. The injunction was dissolved upon motion. The damages to he recovered upon suggestions are those occasioned by the wrongful issue of the writ. Elder v. Sabin, 66 Ill. 126. And, where the injunction is dissolved on motion, only reasonable solicitor's fees paid, or agreed to be paid, by the defendant, for his services rendered on the motion, can be recovered. Elder v. Sabin, supra; Hamilton v Stewart, 59 Ill. 330; Allbright v. Smith, 68 Ill. 181; Jevne v. Osgood, 57 Ill. 340. In cases where the bill is for injunction only, solicitors may render services "in the case" in the preparation of answer, or examination into facts not appearing on the face of the bill, and afterwards the injunction be dissolved on motion for want of equity on the face of the bill, as was here done. All such service is rendered "in the case. " It seems evident that the sum fixed by these witnesses would include all such services, but they would not be recoverable, although the defendant may have paid them, or become obligated to pay them. We are of opinion that the court erred in assessing damages upon the evidence offered. The proof should have disclosed what would have been a customary and usual charge by reputable attorneys in practice in that county, for like service as that rendered by the defendant's solicitors upon the motion to dissolve. Such services would be necessarily include the examination of the bill, the preparation of the demurrer, and its proper presentation to the court; and, if it further appeared that the defendant had agreed to pay the sum 80 proved, decree should have been rendered therefor. The decree in respect of damages will be reversed, and in all other respects affirmed, each party to pay onehalf of the costs of this court. part, and reversed in part.

Affirmed in

(136 Ill. 660) CHICAGO, B. & Q. R. Co. v. PEOPLE ex rel. KREITZ, Treasurer, etc.1

(Supreme Court of Illinois. March 30, 891.) RAILROAD COMPANIES-TAXATION.

1. Under Rev St. Ill. c. 120, § 42, which de fines the "railroad track," which must be assessed by the state board of equalization, as the "right of way, including the superstructure, of main, side, and second track and turn-outs, and the station and improvements of the railroad company on such right of way," city lots which have been bought by a railroad company with the intention of using them as a site for its station, when it should acquire title to other adjoining lots, but which it has held for four or five years without attempting to acquire title to such other lots, form no part of its "railroad track."

2. The fact that the railroad company falsely returned said lots as part of its "railroad track, and paid the tax levied thereon in pursuance of

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

an assessment by the state board, does not exempt the lots from assessment by the town assessor, since the double assessment is caused by the company's own act.

Appeal from Adams county court; WILLIAM MARSH, Judge.

J. F. Carrott and O. F. Price, for appellant. W. G. Feigenspan and Carter, Govert & Pape, for appellee.

BAILEY, J. This was an appeal from a judgment of the county court of Adams County against certain delinquent town lots belonging to the Chicago, Burlington & Quincy Kailroad Company for taxes claimed to be due thereon for the year 1889. The taxes in question were levied on said lots upon an assessment made by the local assessor, and, upon application by the county collector for judgment, said railroad company appeared and filed objections, which being overruled, judgment was rendered against said lots for the amount of said taxes. Said objections were, in substance, that said lots constituted a part of the property of the appellant denominated by the revenue law “railroad track,” and that the assessment thereof by the local assessor was without authority of law and void; that the appellant, in the year 1889. duly returned said lots to the county clerk of said county as a part of its right of way and “railroad track;" and that upon such return said lots were duly assessed by the state board of equalization; and that taxes for that year were duly extended upon such assessment, and had been paid by the appellant. The determining question in the case is whether said lots constituted a part of the appellant's "railroad track," within the meaning of sections 41 and 42 of the revenue law. If they did, the local assessor had no power to assess them, and the taxes levied upon such assessment are invalid. If, on the other hand, they were not a part of said “railroad track," the local assessor was the proper officer to make the assessment, and it is difficult to see how the taxes levied on his assessment can be affected by the fact that the appellant improperly and falsely returned said lots as a part of its "railroad track," and thus caused their assessment by the state board of equalization, and their taxation upon that assessment. Section 41 of the reveaue law (Rev. St. c. 120) requires railroad companies to make out and file with the county clerks of the various counties in which their railroads may be located a statement or schedule, "showing the property held for right of way, and the length of the main and all side and second tracks and turn-outs in such county, and in each city, town, and village in the county through or into which the road may run, and describing each tract of land, other than a city, town, or village lot, through which the road may run, in accordance with the United States surveys, giving the width and length of each strip of land held in each tract, and the number of acres thereof." Section 42 is as follows: "Such right of way, including the superstructures of main, side, and second track and turn-outs, and the station and improvements of the railroad company on such

right of way, shall be held to be real estate for the purposes of taxation, and denominated railroad track,' and shall be so listed and valued; and shall be described in the assessment thereof as a strip of land extending on each side of such railroad track, and embracing the same, together with all the stations and improvements thereon, commencing at a point where such railroad track crosses the boundary line in entering the county, city, town, or village, and extending to the point where such track crosses the boundary line leaving such county, city, town, or village, or to the point of termination of the same, as the case may be, containing acres, more or less, (inserting name of county, township, city, town, or village, boundary line of same, and number of acres and length in feet,) and when advertised or sold for taxes, no other description shall be necessary. Section 48 requires railroad companies, at the time of filing their schedules with the county clerks, to return to the auditor of public accounts sworn schedules of their property denominated "railroad track," and subsequent sections require those schedules to be laid before the state board of equalization, and authorize and provide for the assessment of the property thus scheduled by said board. Section 46 provides that "all real estate, including the stations and other buildings and structures thereon, other than that denominated 'railroad track,' belonging to any railroad, shall be listed as lands or lots, as the case may be, in the county, town, village, district, or city where the same are located." Section 47 requires the county clerk to return to the assessor of the town or district, as the case may require, a copy of the schedule of the real estate, other than “railroad track," and of the personal property, other than rolling stock, pertaining to a railroad, and provides that such real and personal property shall be assessed by the assessor. It further provides that "such property shall be treated in all respects, in regard to assessment and equalization, the same as other similar property belonging to individuals, except that it shall be treated as property belonging to railroads, under the terms of lands, lots, and personal property." It appears from the evidence adduced at the hearing of the appellant's objections that the main track of the appellant's railroad runs along Front street, in the city of Quincy; that blocks 2 and 3, in Pease's addition to Quincy, adjoin Front street on the east; that in 1884 or 1885 the appellant obtained by purchase the title to lots 1, 2, 3, 4, the south 30 feet of lot 5, lot 6, and the south 30 feet of lot 7, in said block 2, and lots 4, 5, 6, and 7, in said block 3; that said lots were purchased with the view of ultimately acquiring the title to the remaining portions of said blocks, either by purchase or condemnation, and of locating and erecting on said property a passenger station; that the title to the residue of said blocks had not been acquired by purchase because the owners thereof were asking prices which the appellant deemed too high, and that no steps had been taken to acquire title

thereto by condemnation; that none of said lots had ever been in fact used for railroad purposes; that at the time they were purchased a warehouse, and perhaps some other buildings, were standing thereon, and that since said purchase said buildings had been in the occupancy of third persons by appellant's permission, who had paid the appellant rent therefor

It seems to us to be very clear that whatever appropriation the appellant intends to make, or may hereafter make, of said lots, when it has succeeded in acquiring title to the residue of its proposed depot grounds, said lots cannot now be said to be, in any proper sense, a part of its "railroad track." They are not, and never have been, actually appropriated by the appellant as a part of its right of way, and so do not come within the definition of “railroad track," as given by said section 42 of the revenue law Even if the title to the residue of the site for the proposed passenger station had been acquired and the station built, that alone would not necessarily constitute the lots in question a part of the appellant's "railroad track." Where stations and other improvements are erected on "the right of way" of a railroad company, they may be regarded as a part of the "railroad track," within the meaning of section 42 of the revenue law; but section 46 clearly contemplates the pos sibility of stations and other buildings and structures of railroad companies not being on their right of way, and therefore not a part of their" railroad track." No railroad tracks have ever been constructed upon the lots in question here, and there is no proof in the record that the appellant contemplates the construction of any of its tracks thereon. It is not easy to see, then, how the construction by the appellant of its passenger station on a piece of land adjoining this right of way will ipso facto have the effect of constituting said land a part of the right of way. But there has so far been no appropriation of said lots as a site for a passenger station. The evidence merely shows an intention to make such appropriation whenever the complainant succeeds in obtaining title to the residue of the property necessary for the purpose. That may or may not happen, and, until it does, the lots which the appellant now holds cannot be regarded as having been definitely appropriated to any railroad purpose. There is no view of the case, then, in which said lots can now be regarded as a part of the appellant's "railroad track."

But it is said that the former decisions of this court sustain a different view from the one here expressed. The case of Rail. way Co. v. Miller, 72 Ill. 144, to which we are referred, arose upon demurrer to a bill, it being alleged in the bill that the city lots there in question were used by the railroad company as a part of its right of way, and as such had been returned to and assessed by the state board of equalization as a part of its "railroad track." The averments of the bill being admitted by the demurrer, no question was presented as to whether said lots were or were not in fact a part of the "railroad track," but, upon the case as admitted, it was

held that the assessment by the state board of equalization was the proper one. In Railroad Co. v. People, 98 Ill. 350, the question was whether two lots of land in the city of Bloomington, containing something over 32 acres, were a part of the "railroad track" of the Chicago & Alton Railroad Company. It appeared that the main tracks of said company run across said land, occupying a strip of land 100 feet in width, and that upon the residue of said land were situated the car-shops, machine-shops, blacksmith shops, foundry, round-house, freight depot, stock-yards, paint-shops, etc., of said company, and that the entire tract was covered with railroad tracks continually in use for the purpose of running cars and engines over them, and for switching cars, making up trains, loading and unloading cars, and for various other purposes in the transaction of the company's business as common carriers. Although it is not so specifically stated in the report of the case, we may assume, from our general knowledge of such establishments, that said company's railroad tracks run through or into most, if not all, of said shops and buildings; and therefore that the whole of said land, including that covered by said buildings, as well as the rest, was practically and substantially occupied by said tracks, and used as a road-way for the movement of the company's engines and cars. We there held that the land in the actual use of a railroad company for side tracks, switches, and turn-outs must be regarded just as es. sentially a part of its right of way, within the meaning of the revenue law, as was the land occupied by its main tracks; and, as in that case substantially all of the land there in question was thus appropriated and used, it formed a part of the company's right of way and "railroad track, although the company had erected and was using various shops thereon for the housing, construction, and repair of its engines and cars. It is too plain for serious controversy that the rule established by that case has no application to the questions presented by the present appeal. People v. Railroad Co., 116 Ill. 181, 4 N. E. Rep. 480, presented a case of a new railroad which had been located over a given route, was in actual process of construction, had purchased the pieces of property there in question for its right of way, and was holding them for that purpose, although it had not acquired all the intervening property, but was proceeding by con. demnation and purchase to acquire it all, so as to make a continuous line of road, and so as to actually use it all for tracks and stutions. We there said that it would be a too narrow construction of the statute to hold that the property must be in the actual use of the railroad company for railroad purposes, the requirement of the statute being that the schedule filed with the county clerk should show, not that the property was actually used for right of way, but that it was "held for right of way;" that, "where property is circumstanced as all this was, the road being in process of construction, and the property in good faith acquired and held for right of way, and the delay coming

only from the non-acquirement of intervening property which was being obtained, such property is to be considered as much a part of the 'railroad track,' as denominated by the revenue law, as if tracks has actually been constructed upon it." It is clear that the doctrine thus announced can have no application to the record before us. Here the company in question is one whose right of way bas long been established and in use, and, although the lots under consideration may have been purchased with the intention of ultimately using them for the purposes of a passenger station, nothing has been or is being done by way of carrying that purpose into execution, or of acquiring the other lands necessary for that purpose, although, at the time the assessment in question was made, four or five years had elapsed since their purchase. It may be that it is the intention of the appellant to make use of said lots at some future time, in such way as to make them a part of its railroad system, and possibly of its right of way, but it is clear that it has not done so. In Railroad Co. v. People, 129 Ill. 571, 22 N. E. Rep. 864, and 25 N. E. Rep. 5, the only question was whether the land constituting the actual right of way of a side track running from the company's main track to a certain stone quarry owned by the company, and which it was working for the purpose of obtaining stone for railroad purposes, was a part of the company's right of way, within the meaning of the revenue law, so as to be properly returned and assessed as a part of its "railroad track.” On the authority of former cases, that question was answered in the affirmative. It was not disputed that the land there assessed as "railroad track" was properly appurtenant to said side track as its right of way, the question being whether a side track situated as that was, and constructed and used for the purposes there shown, was one of the side tracks or turn-outs of said railroad company, within the meaning of section 41 of the revenue law. Clearly, the questions involved in that case have no bearing up. on the present appeal. It is strenuously urged that, if the assessment in question is sustained, the appellant, having already paid the taxes on the same property levied in pursuance of the assessment made by the state board of equalization, will be subjected to a double taxation of said property. If that is the case, it is so by reason of an act for which the appellant alone is responsible. Its error in scheduling said lots, as a part of its "railroad track," in no way interfered with the right and duty of the local assessor to assess said lots, or of the proper officers to levy and extend the taxes upon such assessment. The invalid tax was that levied on the assessment of the state board of equalization, and that assessment having been brought about by the appellant's own voluntary act, and the taxes levied thereon having been voluntarily paid, such payment must be regarded as a voluntary payment, in respect to which the law gives the appellant no remedy. We are of the opinion that the objections filed by the appellant were properly overruled,

and the judgment of the county court will therefore be affirmed.

MAGRUDER, J., (concurring specially.) I concur in the conclusion reached by this opinion, but not in the views expressed in it, for the reasons stated in dissenting opinion in Railroad Co. v. People, 129 Ill. 571, 22 N. E. Rep. 864, and 25 N. E. Rep. 5.

(133 III. 443)` WILSON V. BOARD OF TRUSTEES OF SANITARY DISTRICT OF CHICAGO et al.1 (Supreme Court of Illinois. June 12, 1890.) MUNICIPAL CORPORATIONS - SANITARY DISTRICTTAXATION-MUNICIPAL INDEBTEDNESS - CONSTITUTIONAL LAW.

1. It is within the power of the general assembly to authorize the formation of sanitary districts as municipal corporations, without regard to the existence and boundaries of previously created municipalities, there being no provision in the Illinois constitution to the contrary. MAGRUDER, J., dissenting.

2. Const. Ill. art. 9, § 9, which provides that the general assembly may vest the corporate authorities of cities, villages, and towns with power to make local improvements by special assessment or special taxation, or otherwise, and that all municipal corporations may be vested with authority to assess and collect taxes for all other corporate purposes, and Id. art. 4, § 31, as amended in 1878, which provides that the general assembly may vest the corporate authorities of drainage districts with power to levy special assessments, do not prohibit the general assembly from investing the corporate authorities of sanitary districts with the power of general taxation for sanitary purposes. MAGRUDER, J., dissenting.

3. Under Const. Ill. art. 9, § 12, which provides that "no county, city, township, schooldistrict, or other municipal corporation shall be allowed to become indebted" beyond a certain amount, the corporate authorities of a sanitary district are not affected as to the amount of indebtedness which they may incur by the indebtedness of other municipal corporations covering part of their territory. MAGRUDER, J., dissenting.

4. Const. Ill. art. 4, § 22, which prohibits the incorporation of "cities, towns, and villages" by local or special legislation, does not prevent the general assembly from incorporating a sanitary district by special act.

5. Const. Ill. art. 4, § 22, which prohibits special legislation in all cases where a general law can be made applicable, is addressed solely to the general assembly, and does not render any special act subject to judicial review.

Appeal from circuit court, Cook county; O. W. HORTON, Judge.

Bill by Marshal J. Wilson against the Board of Trustees of Sanitary District of Chicago, and the individual members of said board, to restrain the defendants from issuing bonds. The circuit court dismissed the bill on demurrer for want of equity, and the complainant appeals. Complainant's bill proceeded upon the theory that the act of May 29, 1889, (Rev. St. Ill. c. 24, § 343 et seq.) was unconstitutional. The provisions of this act are stated in the case of People v. Nelson, post, 217.

A. M. Pence, for appellant. Wilson & Moore, for appellees. Edward Osgood Brown, amicus curiæ.

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

SCHOLFIELD, J. The contentions in the present case, on behalf of appellant, as formulated by his counsel, are: "(1) That the sanitary district is a drainage district within the meaning of section 31, art. 4, of the constitution, and that such provision of the constitution is a limitation upon the powers of the general assembly to authorize such improvement to be made in any other way than as provided therein, viz., by special assessment. (2) That the improvement in question is a local improvement, and under section 9, art. 9, of the constitution, the corporate authorities of cities, towns, and villages alone can make same; that the municipal corporation in question is neither a city nor a town nor a village, nor do the officers thereof exercise the powers of any city, town, or village, or of any number thereof, in combination. (3) The second paragraph of said section 9, art. 9, although it | gives all municipal corporations power to assess and levy taxes for all other corporate purposes, necessarily excludes from such corporations the power to raise revenue by general taxation for the purpose of a local improvement, which this is. (4) The indebtedness due from the cities, villages, and towns included within the boundaries of this district is much beyond 5 per cent. of the value of the taxable property therein, as ascertained by the last assessment for state and county taxes. Complete power is given to the city of Chicago, under its charter, to prosecute and make the improvement contemplated, and it is manifest that this new corporation was created for the sole purpose of evading section 12, art. 9, in regard to the limit placed upon the indebtedness of such city. (5) The act in question is a local law, as is apparent. This is not objectionable if the power of the assembly to pass this act is referred to the drainage section of the constitution, but, if not governed by the drainage section, then it is obnoxious to section 22, art. 4, in regard to special legislation. It is an amendment of the city incorporation act, and it grants privileges and franchises to a corporation by special act."

In the view that we take of these contentions, they involve but three general questions: (1) Is it within the power of the general assembly, under our constitution, to authorize the formation of sanitary districts, disregarding the existence and boundaries of pre-existing municipal corporations, and invest their corporate authorities with powers of general taxation for sanitary purposes? (2) If this shall be answered in the affirmative, are the corporate authorities of such districts limited in the amount of indebtedness which they may incur, under section 12, art. 9, of the constitution, by the amounts of pre-existing indebtedness of other municipal corporations covering the same, or a part of the same territory? (3) Is the act under which the district, whose corporate authorities are here sought to be enjoined, was formed, local or special legislation, within the prohibition of section 22, art. 4, of the constitution? It will be most convenient for us to observe this order in considering and passing upon the

questions discussed in the arguments of counsel.

1. It has been stated, and frequently repeated, in decisions of this court, that the constitution of the state is not to be regarded as a grant of powers to the legislative department, but that, on the contrary, it is rather to be regarded as a restriction upon its powers; that, the whole legislative power of the state being conferred by the constitution upon the general assembly, every subject within the scope of civil government not withdrawn from its authority may be acted upon by that body. People v. Salomon, 51 Ill. 37; Sawyer v. City of Alton, 3 Scam. 127; Field v. People, 2 Scam. 79; Ruggles v. People, 91 III. 256; Richards v. Raymond, 92 Ill. 612; Harris v. Board, 105 Ill. 445; Association v. Lounsbury, 21 Ill. 510; Porter v. Railroad Co., 76 Ill. 561; Munn v. People, 69 Ill. 80.

Our first inquiry here, therefore, must be, is the general assembly prohibited, by our present constitution, from authorizing the formation of sanitary districts, disregarding pre-existing municipal corporations, and investing the corporate authorities thereof with powers of general taxation, within such districts, for the purposes for which such districts are authorized to be formed? The rule is, language restricting the legislative power of the general assembly must be construed strictly People v. Wilson, 15 Ill. 392. And, unless it shall then clearly appear that the legislation in question is within the terms of the restriction, it must be sustained; if it be doubtful only, whether it is or not, the doubt must go in favor of the validity of the action of the general assembly. Insurance Co. v. Swigert, 104 Ill. 653; Knickerbocker v. People, 102 Ill. 218; Wulff v. Aldrich, 124 Ill. 591, 16 N. E. Rep. 886; People v. Marshall, 1 Gilman, 672.

It is not contended that there is any express denial in the constitution of power in the general assembly to authorize the formation of sanitary districts, but the contention is that it is denied by necessary implication. Upon an examination of the constitution, it will be seen that article 10 of that instrument provides for the organization of counties and for county government, and that in other articles it is contemplated that there will be local government, for public purposes, designated as "cities," "towns," "villages," "school-districts," and "other municipal corporations;" but there is no specification of the powers that shall be conferred upon either, and no prohibition of the withdrawal of powers once conferred upon one, and thereafter conferring them upon another. In these respects the present constitution does not differ from the constitutions of 1818 and 1848. In Shaw v. Dennis, 5 Gilman, 405, and Dennis v. Maynard, 15 III. 477, which presented questions arising upon a statute enacted under the constitution of 1818, it was held that it was competent for the general assembly to arbitrarily create a district for the purpose of building and repairing a bridge, and to impose taxes therefor upon per sons and property within the district.