the petition was filed. The amended petition (tion to enforce the payment of the claim ascer was filed on the 23d day of October, 1915, to which a demurrer was filed on October 26, 1915, and the same was argued and taken under advisement by the court on the 28th day of October and was sustained on the 5th day of November, and an appeal was prayed. For all that appears in the petition or the record in this case, the respondent, as county collector, proceeded with the tax sale and advertised and sold, or offered for sale, all the property advertised on which the taxes were not paid prior to such sale, and in the natural course of events the purchasers at such tax sale have been issued certificates of sale, and are either holding the same for redemption or the different tracts sold have been redeemed. At least two tracts had been sold when the petition was filed. For all that is shown by the petition, the respondent may have concluded the sale before summons was served on him in this case. The court will refuse to grant a writ of mandamus when it is manifest it will be barren and fruitless or useless and cannot have a beneficial effect (Cristman v. Peck, 90 111. 150), or when the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstance since the com tained to be due. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 223; Dec. Dig. 105.] 2. DISTRICT AND PROSECUTING ATTORNEYS 3(1) SPECIAL STATE'S ATTORNEY THORITY. AU The authority of a special state's attorney appointed under Hurd's Rev. St. 1913, c. 14, § 6, concerning the Attorney General and state's attorneys and authorizing the courts to appoint special state's attorneys, to employ assistants to purchase supplies, must be found expressed or reasonably implied in some statute. [Ed. Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. §§ 10-12; Original petition for mandamus by the Thomas Marshall, of Chicago, for relator. Maclay Hoyne, State's Atty., of Chicago (Henry A. Berger, of Chicago, of counsel), for respondents. DUNN, J. John E. Northup was on June 2, 1913, appointed by the criminal court of Cook county a special state's attorney for the investigation and prosecution of offenses supposed to have been committed against the election laws in the general election of No mencement of the suit, can be of no substan-vember, 1912. He acted under the appointtial or practical benefit (Gormley v. Day, 114 ment, devoting his whole time to the perIll. 185, 28 Ν. Ε. 693). The prayer of the formance of the duties imposed, and on June petition could not have been granted. The 13, 1914, filed in this court, pursuant to leave petition was insufficient and without merit, and the demurrer thereto was properly sustained. granted, a petition for a writ of mandamus against the county of Cook, the president and members of the board of commissioners of The judgment of the circuit court is af- Cook county, the county clerk, and county firmed. Judgment affirmed. (274 111. 158) PEOPLE ex rel. NORTHUP ▼. COOK COUN TY et al. (No. 9610.) treasurer, commanding the county and the (Supreme Court of Illinois. June 22, 1916.) The order of appointment, on its face, purported to give the relator "power to appoint any and all assistant special state's attorneys, clerks, and investigators and other help or assistance in the performance of said duties, to the full extent as if he were the regularly elected state's attorney of Cook county, Ill." The relator appointed eight special state's attorneys and nineteen investigators and clerks, employed stenographers, and incurred other expenses amounting in the aggregate to $37,989.71, including his own compensation at $800 a month. An answer was filed, an issue of fact was made up, which was referred to a commissioner, evidence was taken, and the cause has been submitted upon the pleadings, commissioner's report, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The relator's appointment as special state's by the action of the municipal authorities attorney was made under the authority of He auditing and allowing the claim, or by the (274 111. 58) SKINNER et al. v. GLOS et al. (No. 10295.) (Supreme Court of Illinois. June 22, 1916.) 1. RECORDS9(9)-REGISTRATION OF TITLE -EVIDENCE-VACANT PREMISES. In proceedings to register title, evidence held to show premises vacant and unoccupied. [Ed. Note. For other cases, see Records, Dec. Dig. 9(9). 2. RECORDS 9(7)-REGISTRATION OF TITLEPROCESS. In proceedings to register title, where the proof is unquestioned that applicant has a feesimple title, a defendant duly served with process and appearing in the case cannot complain that the publication proceedings as to other non [1, 2] As to the pay of the assistant state's attorneys, stenographers, and clerks, and the other expenses incurred by the relator, he has no right to a writ of mandamus. In his brief the relator says that the attorneys, investigators, clerks, and stenographers employed by him are not presenting any claim against the county, but that their claims are merely an indebtedness of the relator to them, and that this proceeding is brought only for his own compensation and expenses. It is his position that these claims stand on the same footing as his own compensation [Ed., Note. For other cases, see Records, and that the board of county commissioners Dec. Dig.9(7) was under the same obligation to appropriate 3. RECORDS 9(12)-REGISTRATION OF TITLE. money for their payment. If the relator had authority to employ attorneys and other assistants and fix their compensation and purchase supplies, such authority must be found expressed or reasonably implied in some statute. The order of his appointment only authorized him to employ assistants to the same extent as if he were the state's attorney of Cook county. No such authority as is claimed exists in the state's attorney. The statute provides that, where assistant state's attorneys are required in any county, the number of such assistants and the salary to be paid shall be determined by the board of county commissioners or supervisors, as the case may be. Hurd's Stat. 1913, p. 1252. In regard to the purchase of supplies and the incurring of other expense against the county, the board of county commissioners is authorized to examine and settle all accounts, and by section 35 of chapter 34 of the Revised Statutes it is provided that before any claim against the county is audited and allowed it must be verified by the affidavit of the claimant or his agent, and when disallowed an appeal may be taken to the circuit court. Mandamus is not a proper proceeding for the collection of debts. It will only lie against a municipal corporation to enforce the payment of a claim ascertained to be due. resident defendants were fatally defective, under Chancery Act (Hurd's Rev. St. 1915–16, с. 22), §§ 7, 12, as to notice to unknown owners and affidavit thereof. Objections not made before the examiner and the lower court and for the first time raised in the Supreme Court cannot be considered. [Ed. Note.-For other cases, see Records, Dec. Dig. 9(12). Appeal from Circuit Court, Cook County; Frederick A. Smith, Judge. Proceedings to register title by Alice M. Skinner and others against Jacob Glos and another. From a decree for applicants, de fendants appeal. Affirmed. John R. O'Connor and Alben F. Bates, both of Chicago, for appellants. James P. Graham, of Chicago (Joseph R. Fahy, of Chicago, of counsel), for appellees. DUNCAN, J. Appellees filed an application in the circuit court of Cook county on September 17, 1914, to register title in fee simple to lots 17, 18, and 19 in subblock 1 of block 1 in Canal Trustees' subdivision of the east half of section 31, township 39 north, range 17 east of the third principal meridian, in said county. Jacob Glos, who claimed title to said premises under a tax deed, August A. Timke, trustee in a trust deed given by Glos to secure the holders of notes for the sum of $100,000, and the unknown owners of said notes were all made defendants. It was averred in the application that the property People v. Reddick, 181 Ill. 334, 54 N. E. 963. was vacant and unoccupied. Defendants This ascertainment may be by a judgment, Glos and Timke filed an answer denying that appellees were owners of the land and the Chancery Act, on unknown owners on denying generally the allegations of the pe- an affidavit made nine or ten months before tition. The unknown owners of the notes publication was had, appellants are in no were served by publication and defaulted. position to avail themselves of such an obThe cause was referred to one of the exam-jection. In this character of proceeding, iners of title, who made a report finding that appellees were the owners in fee of the premises. Objections were filed to the report and overruled and ordered to stand as exceptions. The court overruled the exceptions, approved the report, and entered a decree for the registration of the title in fee and canceling said tax deed and trust deed as clouds on appellees' title upon payment of $172.76 to appellant Glos and $5 to appellant Timke, and all costs of suit. [1] Appellants first insist that the decree should be reversed because the proof does not support the allegation of appellees' petition and the findings of the court that the premises were vacant and unoccupied. The decree cannot be sustained unless proof of that allegation be found in the record. August Tidholm, a real estate man, testified that he had examined said lots, and had been there several times, was familiar with them and the subdivision in which they are located, and gave their dimensions and location. He further testified that he, as agent, had paid the taxes on them for the last ten years and that they are vacant lots, bare ground; that the last time he was there was in January, 1916, and that he was ac where the proof is unquestioned that the applicants have a fee-simple title or a title good as against the world, a defendant duly served with process and appearing in the case cannot complain that the publication proceedings as to other nonresident defendants were fatally defective. McDonnell v. Glos, 266 Ill. 504, 107 N. E. 897; Gibson v. Glos, 271 Ill. 368, 111 Ν. Ε. 123; O'Laughlin v. Covell, 222 III. 162, 78 N. E. 59. [3] It is finally insisted that the judgment should be reversed because the witness Tidholm described and located the lots in question as being on Ashland avenue, while the record contains a plat of the property showing that said lots face on Reuben street, and that Ashland avenue does not appear at all on said plat. It appears that said plat was made in 1848, when the subdivision was first laid out, and it may be that the name of Reuben street has since been changed to that of Ashland avenue. But whether it has or not is of no special significance. The property. is described in the petition without reference to any street whatever. The examiner found from the evidence that the applicants were the owners in fee of the premises described in the application, and no specific quainted with their condition September 17, objection was raised before the examiner or 1914, the date the application was filed; that they were then vacant lots, without any improvements on them or around them, just bare ground. On cross-examination he testi fied that he did not see the premises September 17, 1914; that he was there two years before he testified, in August, 1913, and about January 1, 1915; and that he does not remember any special occasion that he was there between August, 1913, and January, 1915. In the absence of rebutting testimony we must hold that the witness was, as he testified, familiar with the condition of the property on September 17, 1914, and that it had no improvements on it or around it and was vacant and unoccupied. Miller v. Glos, 271 Ill. 285, 111 N. E. 113; Harts v. Glos, 271 Ill. 376, 111 N. E. 125; Foulkes v. Glos, 272 Ill. 364, 112 Ν. Ε. 60. [2] It is next argued that as the petition, including the statement therein that the legal holder or holders, owner or owners, of the said notes for $100,000 are unknown, etc., was sworn to November 28, 1913, and was not filed until September 17, 1914, the affidavit was stale, and that it failed to give the court jurisdiction of the persons of the unknown owners, as the affidavit, under section 12 of the Chancery Act, is jurisdictional, and that section must be complied with. If it be conceded that legal service by publication cannot be had, under sections 7 and 12 of the lower court that the witness had failed to properly describe the property he had testified was vacant and identified as the property described in the petition. It is clear from the evidence that the witness was describing the property properly, as he stated where it was, on what street and between what streets it was located, and the character of buildings on the lots adjoining it. Had he been mistaken, some notice of the matter would undoubtedly have then been taken and proper objections saved to his testimony. Objections that were not made before the examiner and the lower court and are for the first time raised in this court cannot be considered. Teninga v. Glos, 266 III. 121, 107 N. E. 126. The decree of the circuit court is affirmed. Decree affirmed. (273 111. 501) PEAR v. CITY OF EAST ST. LOUIS et al. (No. 10677.) (Supreme Court of Illinois. June 22, 1916.) 1. JUDGMENT 713(2) - MATTERS INCLUDEDMATTERS WHICH MIGHT HAVE BEEN LITI GATED. A city ordinance offering certain rights to a water company was accepted, and the city later attempted to repeal it, whereupon the water company secured a federal court decree against the city by judging the repealing ordinance invalid and enjoining a violation of the ordinance contract. Held, that a taxpayer's suit to declare >For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the ordinance void because not legally passed | Louis and as a taxpayer upon said prop is precluded, since that issue might have been raised in the federal litigation. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1241; Dec. Dig. 713(2). 2. JUDGMENT 702-PERSONS CONCLUDED erty in said city. The city of East St. Louis, the mayor, other city officers and the aldermen of said city, and the City Water Company of East St. Louis and Granite City were made defendants to the bill. It was PERSONS REPRESENTED BY PARTIES TO SUIT. not alleged that the ordinance was oppres The complaining taxpayer was represented in the federal litigation by the city and is concluded by that suit. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1227; Dec. Dig. 702.] Error to City Court of East St. Louis; R. H. Flannigen, Judge. Bill by John R. Pear against the City of East St. Louis and others. Decree dismissing the bill, and complainant sues out a writ of error. Decree affirmed. Silas Cook, of East St. Louis, and William K. Koerner, of St. Louis, Mo., for plaintiff in error. Barthel, Farmer & Klingel, of Belleville, for defendants in error. sive or unreasonable or that the city was without power to pass it, but that it was not legally passed. The allegations of the bill upon this question in substance are that on January 5, 1914, the ordinance was presented to the city council and referred to the water committee. It was not again brought before the council until July 6, 1914, at a regular meeting of the council, when the water committee reported recommending its passage at that meeting, and it was adopted by a vote of 12 for and 3 against. The bill alleges that when the report of the water committee was read Aldermen Gavin and Haggerty requested that any further action upon the report be deferred until the next regular meeting of the council. Their request for postponement was not granted, and the ordinance was put upon its passage and passed, as before stated. The minutes of the clerk of the meeting of July 6, 1914, were read at the council meeting held July 13th and approved. They did not show the objection of the two aldermen to further action upon the report of the water committee at the meeting held July 6, 1914. On the 20th of July the city clerk addressed a FARMER, J. The bill in this case was filed by plaintiff in error (hereafter referred to as complainant) to have a certain ordinance of the city of East St. Louis, known as Ordinance No. 1972, declared void on the ground that it had never been legally passed by the city council, and to enjoin the appropriating or paying of any money, by city warrant or otherwise, under the provisions of said ordinance, to defendant in error the City Water Company of East St. Louis and Granite City, its successors or assigns. The communication to the mayor and council, ordinance alleged to be void, consisting of six sections, is set out in the bill, and authorizes the City Water Company of East St. Louis and Granite City to maintain and operate its waterworks system as now constructed in the city of East St. Louis or as may hereafter be enlarged or extended; to stating the minutes of July 6th were incorrect in omitting to state that Aldermen Gavin and Haggerty requested the postponement of final action on the report of the water committee until the next regular meeting of the council. The communication stated said aldermen did object to final ac lay and remove, repair and maintain, watertion at the July 6th meeting, and requested that such action be deferred until the next regular meeting. The consent of the council was asked for the correction of the minutes. No correction was made, however, until December 7th, when a resolution was adopted directing the correction of the minutes to show the request of two aldermen at the meeting held July 6th that no action be taken upon the report of the water committee and the ordinance until the next regular meeting. pipes, mains, fire hydrants, fixtures, and appurtenances in the present and future streets, alleys, and public places in the city of East St. Louis, and to supply water in said city for domestic, public, manufacturing, and other purposes. The license was for a period of 30 years, and fixed the charges authorized to be made by the water company for its service in furnishing water, and other details not necessary to be set out in this opinion. The ordinance provided for its acceptance in writing by the water company It is the theory of the bill that the ordibeing filed with the city clerk and the pay-nance was never legally passed and is void. ment by said company to the city of the sum of $75,000 within 20 days from the passage and approval of the ordinance. The ordinance purports to have been passed July 6, 1914, and within 20 days it was accepted in writing by the water company, and the payment of $75,000 made by it to the city. This contention is based upon section 15 of article 3, c. 24, Hurd's Statutes of 1913, which reads as follows: "Any report of a committee of the council shall be deferred, for final action thereon, to the next regular meeting of the same after the report is made, upon the request of any two aldermen present." The bill in this case was filed in the city court of East St. Louis February 6, 1915. It The City Water Company of East St. Louwas filed by complainant as an owner of real is and Granite City was the only defendant and personal property in the city of East St. I answering the bill. The answer set out the ror. The four principal questions raised by the pleadings and argued in the briefs are: (1) Whether a suit of this kind can be maintained on behalf of and in the name of one individual taxpayer; (2) whether the Ordinance No. 1972 was legally passed; (3) whether, upon equitable grounds and principles, the city and the taxpayers residing therein are now estopped to question the validity of the ordinance; (4) whether the decree of the federal court pleaded is res judicata of the issues here involved. [1, 2] The first three propositions we shall not discuss or determine, as it seems certain that the decree of the federal court is conclusive against complainant here. Complainant was not personally made a party defendant to the bill in the suit in the federal court, and on that ground, as well as upon the contention that the validity of Ordinance No. 1972 was not necessarily involved in and decided by that case, it is insisted the decree is not binding upon the complainant. passage of the ordinance and averred that it faction. The trial court, after the hearing, was legally passed. The answer further dismissed the bill for want of equity, and averred that the water company filed its certified that the validity of an ordinance acceptance of the ordinance on July 10, 1914, was involved, and the public interest requirthat it paid to the city of East St. Louis ed it to be passed upon by this court, and $75,000, which was retained by the city, complainant has sued out this writ of erand which has been expended and disbursed for various municipal purposes, and that it has since been, and now is, operating its plant in the city of East St. Louis under said ordinance. The answer further averred that on August 17, 1914, the city council directed the mayor to file a complaint on behalf of the city against the water company before the State Public Utilities Commission with a view to modifying the rates, charges, and practices theretofore in force as specified in schedules on file with the utilities commission, and asking that the said utilities commission require a reduction of the rate charged per 1,000 gallons for water, and make some other changes in the customs and practices of the water company in the exercise of its license; that the water company, the city of East St. Louis, and a committee of citizens representing a citizen's organization of said city reached an agreement as to all the matters in controversy, made and filed a schedule with the utilities commission of rates, charges, etc., which schedule was approved by said commission and is now in force and on file as required by law. The answer averred that by reason of the facts (set out in much more extensive detail than we have stated them) the city of East St. Louis, and every citizen and taxpayer of said city, are estopped from complaining that the ordinance is invalid. The answer further averred that in October, 1914, the city passed an ordinance (No. 1983) purporting to repeal the license ordinance (No. 1972). Thereupon the water company filed its bill in the United States District Court for the Eastern District of Illinois to enjoin the city of East St. Louis from disregarding and treating Ordinance No. 1972 as repealed, from interfering with the water company's rights under said ordinance, and asking that the repealing ordinance be declared void. The city of East St. Louis, the only defendant to the bill, did not answer and was defaulted. A decree was entered by the United States District Court adjudging and declaring the repealing ordinance (No. 1983) unconstitutional, illegal, and void, and enjoining the city of East St. Louis, its officers, agents, and servants, from doing any act or thing in violation of the provisions of the contract between the parties as contained The power of the city to adopt the ordinance is not questioned, and no facts pleaded show the city or its inhabitants have suffered any wrong or injury, other than the allegation that the ordinance was not legally adopted. If it was a valid ordinance, its acceptance by the water company made a valid and binding contract between it and the city and imposed the duty upon the city of performing its part of the obligation. After the ordinance was accepted and acted upon by the water company the city denied it was bound by it, and passed an ordinance purporting to repeal it. The suit in the federal court involved the question whether the city was bound by ordinance No. 1972, and the decision of that question depended upon whether it was a legal ordinance, and whether it had the power to repudiate and repeal it. This was a matter of general interest to all the taxpayers of the city, and, though complainant was not personally made a party to that suit, his rights as a taxpayer will be deemed to have been as effectually presented and protected as if he had been personally present. The issues in that case involved the right of the taxpayers to be relieved of the obligations imposed by the ordinance, which in Ordinance No. 1972, from treating said is the same question involved in this case. ordinance as invalid or repealed, and from It is not claimed complainant has sustained any action, by ordinance or resolution, to or will sustain any wrong or injury differ repeal or interfere with the validity of said Ordinance No. 1972. The bill, the ordinances, and the decree of the United States District Court are set out in full in the answer, and the decree is relied upon as a bar to this ent from that sustained by the taxpayers of the city generally. The precise questions raised in this case were or might have been adjudicated in the case in the federal court. Complainant was a party to that suit by |