Andrew J. Michael and Thomas F. Michael. The substance of the bill was that Robert Michael died April 18, 1888, seised in feesimple of a certain described 80 acre tract of land, and of a number of other described tracts of land, and left surviving him the complainant Catherine L. Michael as his widow, and the other complainants and the defendants as his only heirs at law; that said Catherine L. occupied said 80acre tract of land as a homestead, and was entitled to an estate of homestead therein, and entitled to dower in all of the lands; and that each of the other parties to the suit was seised of an undivided one-seventh of said lands, subject to said homestead and dower estates. The prayer of the bill was for partition, and for assignment of dower and homestead. Afterwards an order was made allowing the bill to be amended by making said Catherine L. Michael a party defendant; and another order was entered allowing the bill to be amended by making Mary H. Smith a party defendant; and still another order was entered allowing the bill to be amended by making said Martha A. Mace a party defendant. No one of these amendments, however, was in fact made to the bill; but said Catherine L. Michael, Mary H. Smith, and Martha A. Mace all filed answers to said bill. Thereupon Mary H. Smith, Martha A. Mace, and Catherine L. Michael each exhibited crossbills, to which said Andrew J. and Thomas F. Michael, and also the complainants in the original bill, were made defendants; the cross-bills of the said Smith and the said Mace each claiming certain rights and equities in respect to the lands left by said Robert Michael, deceased, and the crossbill of said Catherine L. claiming that she was the owner in fee of the legal title to an undivided one-eleventh of said 80-acre tract, and the equitable owner in fee of an undivided two-elevenths of said tract, making in all three-elevenths of said tract. The relief prayed for in each of said three cross-bills was granted in the final decree which was entered by the court. Said Andrew J. and Thomas F. Michael did not answer either of said cross-bills, nor was any rule entered upon them to answer either of them, nor was any default or decree pro confesso entered against them in respect to either. Said Andrew J. and Thomas F. did not answer the original bill, and the summons in chancery issued against them in the cause was returned, "Not found." An affidavit was filed in the suit stating that they were non-residents of this state, and, upon information, that they were residents of Colaway, in the state of Nebraska. Notice was given by publication in a newspaper, which was as follows: "Publication Notice. State of Illinois, Vermilion county-ss. In the circuit court, October term, 1888. Catherine L. Michael, James K. Michael, John B. Michael, Martha A. Mace, Mary H. Smith, Jane Taylor v. Thomas, F. Michael and Andrew J. Michael. In chancery, No. 4107. Affidavit of the non-residence of Thomas F. Michael and Andrew J. Michael, the above defendants, having been filed in the clerk's office of the circuit court of said county, notice is hereby given to said non

resident defendants that the complainants filed their bill of complaint in said court on the chancery side thereof on the 16th day of August, 1888, and that thereupon a summons issued out of said court wherein said suit is now pending, returnable on the 1st day in the month of October next, as is required by law. A. S. W. HAWES, Clerk. Dated this 16th day of August, 1888." The certificate of the publishers of the newspaper stated that said notice was published four successive weeks, commencing on the 18th day of August, 1888, and ending on the 8th day of September, 1888. The certificate of the clerk of the court stated that he mailed a copy of the notice to the defendants "on the 17th day of August, A., D. 1888, being within ten days after the first publication of the notice."

The cause was referred to the master in chancery to take testimony, and to report the same, together with his conclusions, to the court. The master reported the testimony, and also made a report of his conclusions. He reported, among other things, that Robert Michael died seised of all the real estate described in the bill of complaint, except an undivided oneeleventh interest in the 80-acre tract; that Catherine L. Michael was entitled to the fee-simple interest of one-eleventh part of said tract, and also to a homestead estate in said tract; and that she was also entitled to dower in all the residue of the real estate of the deceased, after the assignment of homestead. No exceptions were filed by any one to the report of the master. The cause was heard by the court upon the bill, cross-bills, and answers, and the report of the master in chancery. A decree was entered by the court, which, among other things, approved and con firmed the report of the master, and decreed that said Catherine L. Michael was the owner in fee-simple of an undivided three-elevenths of said tract of land con. taining 80 acres. The present writ of error was sued out by Andrew J. Michael and Thomas F. Michael, plaintiffs in error, for the purpose of reversing the decree which was rendered by the circuit court. The facts upon which are predicated, numerous assignments of error that are noticed in the opinion of the court are omitted from this statement. Since the suing out of the writ of error, the death of said Catherine L. Michael has been suggested in the record, and it has further been suggested that by her last will she devised all her property to Martha A. Mace, one of the defendants in error.

It is claimed that the notice by publication was insufficient, because it failed to state the place of holding court. Section 12 of the chancery act provides that such publication shall contain notice of the pendency of the suit, the names of the parties thereto, the title of the court, and the time and place of returning summons in the case. Here the notice was dated August 16, 1888, and the venue stated therein was state of Illinois and Vermilion county, and it was entitled of the October term, 1888, of the circuit court; and it gave information that the bill had been filed in the circuit court of the county

named in the caption, that the suit was pending in said court, and that a sum. mons had been issued out of said court returnable on the 1st day of October then next. Section 20 of chapter 37 of the Revised Statutes provides that the circuit courts of the several counties of this state shall be held in the court-houses of such counties, except as otherwise provided by law. The summons was legally required to be returned to the court from which it emanated. The notification was that that court was the circuit court of Vermilion county, in the state of Illinois, and said court, in the absence of provision of law otherwise, was necessarily in the courthouse of Vermilion county, at the county-seat of Vermilion county. While the place of return of the summons in the case was not formally mentioned in the notice, yet the publication made substantially contained notice of such place. A construction so strict that it would endanger the validity of titles and the stability of legal proceedings should not be placed upon the statute. The real question is, and should be, not whether the notice given was formally and technically accurate, but whether or not the object and intent of the law was substantially attained thereby. We think that the conclusion we have reached on this point is in conformity with the decision of this court in Goudy v. Hall, 36 Ill. 313, and Clark v. Marfield, 77 Ill. 258. The certificate of the publisher states that the first publication of the notice was on August 18, 1888, and the certificate of the clerk states that he mailed copies of the notice to the defendants on August 17, 1888, and within 10 days after the first publication of the notice. It is impossible that the clerk could have mailed the copies a day before they were in existence. The stat. ute made it the duty of the clerk to mail the copies within 10 days after the first publication, and it makes his certificate of that fact evidence. He expressly certified the mailing "within ten days after the first publication," and the presumption is in favor of the performance of his official duty in that regard. The insensible statement that he mailed the printed notice prior to the time it was printed should be rejected, and the sensible and pertinent statement, and which is in conformity with the requirements of law and of duty, and in consonance with the regularity of legal proceedings, should be allowed to stand. See, in connection herewith, Schaefer v. Kienzel, 123 111. 430, 15 N. E. Rep. 164. Our conclusion is that the service by publication was such as conferred upon the circuit court jurisdiction over the persons of the plaintiffs in error.

It is objected that plaintiffs in error were not ruled to answer the original bill. The entry of such rule was unnecessary. There having been one service upon them by publication, and more than 40 days having intervened between the first publication and the first day of the term, they were by the chancery act required to except, demur, or plead to the bill, or answer the same, on or before the returnday of the summons issued in the cause. Rev. St. c. 22, §§ 13, 16. No formal default

was entered against the defendants, but the decree recites that, they "failing to plead, answer, or demur to said bill, it is ordered, adjudged, and decreed by the court that the same be taken pro confesso against the said Thomas F. Michael and Andrew J. Michael." This was amply sufficient. Grob v. Cushman, 45 Ill. 119; School Directors of Dist. No. 5 v. School Directors of Dist. No. 10, 73 Ill. 249; Savage v. Berry, 2 Scam. 545.

We do not deem it necessary to pass upon the effect of the fact that while leave was given to amend the bill by making three of the complainants therein, Catherine L. Michael, Mary H. Smith, and Martha A. Mace, parties defendant, yet that no amendment thereto was in fact made. We will assume, for the purpose of the decision, that the persons named became and were defendants to the original bill, and as such were entitled, after an swering the same, to exhibit their respective cross-bills. They, having filed their several cross-bills, were entitled to call upon the defendants thereto to answer the same in such time as should be prescribed by the court. Rev. St. c. 22, § 30. No rule was entered against plaintiffs in error to answer either of said cross-bills, nor was any default taken against them on either of the cross-bills, nor was any order entered taking either of the cross-bills for confessed as against them. No statutory or other duty was imposed upon plaintiffs in error to answer said cross-bills until called upon by the complainants therein and by rule of court so to do. They were in no wise in default in respect thereto, and, as above stated, the court did not assume to default them thereon, or to take the cross-bills as confessed; yet the court in its final decree took from them their interest in a three-elevenths part of 80-acre tract of land of which the original bill alleged their father died seised. This part of the decree was predicated upon the cross-bill of Catherine L. Michael, and was in the very teeth of the averments of the original bill. So, also, by said decree, relief was granted to Smith and Mace upon their cross-bills, and by which action of the court plaintiffs in error were deprived of valuable rights and interests. We think that in these respects there was manifest and substantial error in the proceedings and decree of the court. The decree that was rendered by the court was contradictory to and inconsistent with itself. It expressly found that the allegations in the original bill of complaint were true, and that partition and division ought to be made as prayed for therein. It then proceeded to adjudge an undivided three-elevenths part of the tract of land containing 80 acres to Catherine L. Michael in fee-simple. The cause had been referred to the master in chancery to take testimony and report his conclusions. He reported that Robert Michael died seised of all the real estate described in the bill of complaint, except one-eleventh of the homestead tract of 80 acres, and that Catherine L. Michael was the owner in feesimple of said one-eleventh. No exceptions were taken to this report, and with its conclusions the parties were presuma.

bly content. The court heard the cause upon the pleadings and upon said report, and heard no additional testimony. It made an order expressly approving and confirming said report, and yet decreed three-elevenths of said 80 acres of land to said Catherine L. in fee-simple. One of the errors assigned is that the decree is contrary to the evidence. It is insisted by defendants in error that parties against whom a bill has been taken for confessed cannot complain and assign for error that the proofs are insufficient, citing in that behalf Farnsworth v. Strasler, 12 III. 482, and other authorities. The rule suggested has but little, if any, application to the case at bar. Almost all of the evidence found in the record had reference only to the cases made by the cross-bills. As we have already seen, the cross-bills were not taken for confessed against plaintiffs in error, and could not properly have been so taken. It cannot justly be claimed that they, by default or otherwise, have ever confessed the allegations of the crossbills to be true. We have examined the testimony. As we understand it, it tends strongly to show that Catherine L. Michael was the owner of an undivided oneeleventh part of the homestead tract The evidence to show a resulting trust in respect to an undivided two-elevenths interest therein, in addition, seems to be vague and unsatisfactory. Said Catherine L. was the principal witness to establish the same, as against plaintiffs in error, who defend as the heirs of their deceased father. It is also evident that they should have an opportunity to defend against the claims of said Catherine L. There are various other alleged errors assigned upon the record, but the irregularities so complained of can readily be remedied upon the remandment of the cause. For the errors indicated in this opinion the decree is reversed, and the cause remanded.

(137 II. 585)

PEOPLE ex rel. WOODBURY et al. v. PAVEY, Auditor, et al.

(Supreme Court of Illinois. May 11, 1891.) COUNTY BONDS IN AID OF RAILWAYS-MANDAMUS TO COMPEL PAYMENT-PETITION.

Priv. Laws Ill. 1867, vol. 2, p. 750, provides that Wayne county may issue bonds to aid in constructing a railroad, but does not provide for the payment thereof. Priv. Laws 1869, p. 308, §§ 10, 14, amendatory thereof, require that the authorities of the county shall "provide in due time to pay the principal at maturity," and certify the amount to be raised for such purpose to the auditor of public accounts. Held that, although the state treasurer has money in his hands belonging to Wayne county, mandamus to compel the auditor to issue his warrant, and the treasurer to pay for such bonds, will not lie when the petition fails to allege that the above statutory provisions have been complied with.

Appeal from circuit court, Sangamon county.

Saunders & Bowers, for appellants. George Hunt, Atty. Gen., for appellees.

SCHOLFIELD, C. J. This was a petition filed in the circuit court of Sangamon county for mandamus. The only facts averred in the petition are that the county of Wayne, Ill., has a valid bonded indebted

ness, so declared by the state supreme court, amounting to $200,000; that said bonds are duly registered by the state auditor, and that the same are past due; that it was the duty of said auditor to levy a tax sufficient to pay said bonds as they became due; that relators are the holders and owners of bonds Nos. 21, 52, 59, 60, 61, 93, 94, 97, 98, and 99, for $1,000 each, due January 1, 1890; that the same were legally issued, and that there is now in the hands of the state treasurer of the state of Illinois sufficient money to pay said bonds and interest thereon; that demand was made on said state auditor for a warrant on the treasurer for the payinent of said bonds and interest, and upon the treasurer for payment of the same, which was refused. The prayer is that the auditor be commanded to issue his warrant for the alleged indebtedness, and that the treasurer be commanded to pay the same. The circuit court sustained a demurrer to the petition, and the case is before us on the appeal of the relator from that decision.

These bonds are claimed by the relator to have been issued under the provisions of an act entitled "An act to incorporate the Illinois Southeastern Railway Company." Priv. Laws 1867, vol. 2, p. 750. That act contains no provision for the registration or payment of such bonds; but an act amendatory of that act, approved February 24, 1869, (Priv. Laws 1869, p. 308,) provides in its tenth section that the county making the donation" shall, by its proper corporate authorities, annually levy and collect a sufficient tax on its assessed property to pay the interest on its bonds issued as aforesaid as the interest becomes due, and provide in due time to pay the principal at maturity." Section 14 of the same act provides" that the holders of $20,000 or upward of the bonds of any county or city, issued in pursuance of this act, or the act to which this is an amendment, may at any time file the same with the auditor of public accounts for registration and for the collection and payment of principal and interest, and all the provisions of An act relating to county and city debts, and to provide for the payment thereof by taxation in such counties and cities,' approved February 13, 1865, so far as the same relates to registration, collection, and payment of interest according to the tenor of said bonds, shall be in force and applied for the benefit of all such bonds so registered; and whenever the proper county or city authorities shall provide for the payment of principal of such bonds the amount annually to be raised for that purpose shall be certified by the proper authorities of such county or city to the auditor of public accounts, and the provisions of said act shall apply to the collection and payment of the principal of said bonds as so provided by said county or city authorities." Thus, by this provision, the act of February 13, 1865, is made applicable so far as it relates to registration, collection, and payment of interest only; but to authorize the collection of principal it is necessary that the county or city authorities shall provide for the payment of the principal, and

certify the amount to be raised to the auditor of public accounts. There is no allegation in the petition of any compliance with this requirement. The allegations in the petition utterly fail to show by proper averments that the money in the hands of the treasurer is money which it is his duty, under any law, to pay to the relator. Although there may be sufficient money in the hands of the state treasurer, belonging to Wayne county, to pay these bonds, it does not follow that it is his duty to pay that money out upon them. They are entitled to be paid only out of moneys in his hands levied and collected for their payment, pursuant to law; and this must be conclusively shown by the relator. For aught that here appears, it may be the duty of the treasurer to pay this money on other indebtedness of Wayne county, or to the treasurer of that county. The judgment is affirmed.

Act Ill. Feb. 21, 1861, created as a body corporate the board of water commissioners of the city of Springfield, and gave them authority to establish, maintain, and regulate a water supply for the city, and provided that they should be elected at such times as the city council should determine. The general act relating to the incorporation of cities and villages (1 Starr & C. Ann. St. 111. p. 452) confers on the city councils general authority in regard to water supply, limits the term of office of water commissioners to two years, and provides from the time of the organization of a city under its provisions all acts inconsistent therewith should cease to be applicable. Held that, when the city of Springfield was organized under the latter act, the former was thereby repealed, and the board of water commissioners ceased to exist.

Appeal from circuit court, Sangamon county.

Connolly & Mather and Palmer & Shutt, for appellant. Noah H. Turuer, State's Atty., (Patton & Hamilton and Conkling & Grout, of counsel,) for appellee.

BAKER, J. This was an information in the nature of a quo warranto prosecuted in the Sangamon circuit court by the state's attorney, on the relation of the city of Springfield, against the Board of Water Commissioners of the City of Springfield, composed of Rheuna D. Lawrence, Obed Lewis, and Hiram O. Bolles, calling upon it to show by what authority it exercises the liberties, privileges, and franchises of a board of water commissioners of the city of Springfield. The fourth count of the information fully sets forth the case of the relator, and the pleas of the defendant to the first, second, and third counts of the information fully set forth and exhibit the title and defenses of the defendant below, appellant here. The cir cuit court overruled a demurrer to the fourth count, and sustained the demurrer filed to the pleas to the first, second, and third counts. Appellant stood by its demurrer to the fourth count, and by its

pleas to the other counts, and thereupon judgment of ouster and for a fine of one dol. lar and for costs was rendered against it. Appellant justifies under an act of the leg. islature, approved February 21, 1861, entitled "An act to incorporate the Springfield Water-Works Company. Priv. Laws 1861, p. 285. The claim is that said act was a complete, independent, and disconnected act of the general assembly; that it was not an amendment to, and did not become a part of, the charter of the city of Springfield; that it created certain persons therein named, and their successors in office, a body politic and corporate by the name and style of the "Board of Water Commissioners of the City of Springfield," with the powers designated in said act, and with the right of perpetual succession: that the object of the act was a permanent and continuing one; and that the subsequent organization, in April, 1882, of the city of Springfield, under the general act for the incorporation of cities and villages, (1 Starr & C. Ann. St. p. 452,) did not have the effect to repeal said act of 1861, or to render its provisions "no longer applicable." Prior to the incorporation of the city under the general law, its charter did not consist of one act of the legislature only, but of a number of acts. The principal act was that of March 2, 1854; and, in addition thereto, there were the acts of February 14, 1855, (Priv. Laws, p. 75;) of February 18, 1857, (Priv. Laws, p. 1229;) of Februa ry 16, 1857, (Priv. Laws, p. 1050;) of February 21, 1861, (Priv. Laws, p. 277;) of March 29, 1869, (2 Priv. Laws, p. 241;) of February 18, 1859, (Priv. Laws, p. 269,) creating Oak Ridge cemetery; of March 27, 1869, (2 Priv. Laws, p. 239, ) creating the board of education; and perhaps other acts. Each of the acts above mentioned purported in its title to be an amendment to the city charter. The Springfield water-works act, however, did not purport in its title to be an amendment to said charter. We think though, after a careful examination of its provisions, that it was in legal effect, and to all intents and purposes, an amendment or addition to the city charter. title, "An act to incorporate the Springfield Water-Works Company," was somewhat misleading. That which it did in fact and in the body of the act incorporate was "a board of water commissioners for the city of Springfield," to be known by the name and style of the "Board of Water Commissioners of the city of Springfield." On the day of the approval of the act another act was also approved, which latter act made provision for the submission of the water-works act to a vote of the qualified voters of the city of Springfield at a special election, the city clerk to give notice of said election, and the city council to designate the judges and clerks and the voting places in each ward, and the ballots to be canvassed and returned in like manner as votes for city officers of said city; and also provided that the water-works act should not take effect and should in no wise be in force unless approved by a majority of the voters. The three persons

Its

who were to constitute the first board of commissioners were designated in the act to hold their offices for three, four, and five years, respectively, they to decide by lot their respective terms. The act required them to notify the city council, in writing, of the result of such casting of lots, which was to be entered of record on the journals of the city council. Their successors were to be elected by the qualified voters of the city at the regular city elections for the election of mayor and other city officers. In case of a vacancy in the board the remaining commissioners were to nominate a qualified voter of the city to fill the same, and such person, if the nomination was confirmed by the city council, was to act until the next regular election. The city council was to fix the salaries of the commissioners, and the salary of the superintendent appointed by the board; and the commissioners were required to report in writing, at a fixed time in each year, to the council, the nature and extent of the duties assigned to each commissioner. Said commissioners were required to attend to all matters relative to supplying the city of Springfield with water from the Sangamon river, and power was given them, and it was made their duty, to furnish a full supply of water for public and private use in said city. Their power to raise money was conditional on its being deemed expedient by the city council, and all money was required to be borrowed upon the credit of the city, and city bonds were to be issued therefor, under the corporate seal of the city, and signed by the mayor and city elerk, but only upon authority given by the city council by a vote of the majority of all the aldermen by law authorized to be elected. It was made the duty of the city clerk to register these bonds "in the same manner as the other indebtedness of the city is registered." The warrants for the collection of water-rents were to be directed to the marshal or a constable of the city, and it was made the duty of the board to report and return unsatisfied warrants and delinquent property to the city council, and it was provided that the city council should take the same proceedings for collection as were provided by the charter and ordinances of the city for the collection of unsatisfied sidewalk assessments. The rules and regulations of the board in respect to the use of water were required to be reported to the city council, and the council was thereupon to pass an ordinance establishing such rules and regulations, and provide penalties for their violation. The act imposed the duty upon the board of making, under oath, a semi-annual report of their stewardship to the city council, and the same was required to be entered of record by the city clerk. The investment of surplus funds from water-rents, etc., over and above current expenses, authorized by the act, could only be made “with the approval of the mayor and committee of finance of the city council. The members of the city council were prohibited from being interested in any contract made by the board, or in the purchase of any materials to be used. Provision was made for the re

moval from office of the commissioners, or either of them, upon a petition to be vot ed by a majority of all the members of the city council; and in case of such removal from office the city council was given power to fill the vacancy or vacancies. It was made the duty of the city council to levy special taxes, if necessary, to pay interest or principal of the bonds above mentioned. The members of the city council were prohibited from making use of or borrowing for their private benefit any of the funds belonging to the commissioners, or from receiving any interest or profit whatsoever on account of the deposit of such funds. It was made the duty of the finance committee or some other committee appointed by the city council to examine at least once in three months, the register of amounts paid by the board of commissioners, and their cash accounts and returned checks and drafts; and also made the duty of the finance committee or a special committee appointed by the city council for that purpose, at the times of the presentation of the semi-annual reports of the board to said council, to make thorough examinations of the books, accounts, and vouchers of the board, and report to the city council, in writing, the results of such investigations. It was also required that all contracts made by the commissioners should be in writing, and executed in duplicate, one copy to be filed and preserved by the city clerk among the files of his office. The act recited that a contract for the building of the Springfield water-works had already been entered into between the city of Springfield and Ennis & Eastman, and it provided that nothing in the act contained should interfere with or invalidate said contract, or release or impair any of its obligations or provisions. The commissioners were required to give bonds to the city, in such sums and with such sure. ties as the city council should determine, for the performance of their duties; and the council was given power to increase the amounts of such bonds, and to require the superintendent to give such bond as it deemed necessary and expedient; and the city council was given authority to pass such ordinances, with appropriate penalties, as it deemed necessary for the preservation of the property and the water. On February 21, 1863, so much of the Springfield water-works act as required the election of commissioners at specified times was repealed, and it was provided that the city council of the city of Springfield might order an election for such commissioners "when said council may deem it expedient." Priv. Laws 1863, p. 165.

This partial analysis of the act of incorporation of the "Board of Water Commissioners of the City of Springfield" shows that said board was not such an independent and distinct corporate existence and separate legal entity as that it formed no part of the municipal government of the city of Springfield, and could not be affected by subsequent changes made by the general assembly in the charter of the city. The act was, in substance and in fact, and in legal effect, an addition to the charter of the city of Springfield, and invested the