Slike stranica

Cent. Dig. § 223; Dec. Dig. 105.]

[Ed. Note.-For other cases, see Mandamus,



The authority of a special state's attorney appointed under Hurd's Rev. St. 1913, c. 14, § attorneys and authorizing the courts to appoint 6, concerning the Attorney General and state's special state's attorneys, to employ assistants to purchase supplies, must be found expressed or reasonably implied in some statute. Prosecuting Attorneys, Cent. Dig. §§ 10-12; [Ed. Note.-For other cases, see District and Dec. Dig. 3(1).]

Original petition for mandamus by the People, on the relation of John E. Northup, against the County of Cook and others. Writ denied.

the petition was filed. The amended petition [tion to enforce the payment of the claim ascerwas filed on the 23d day of October, 1915, to tained to be due. 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 Ill. 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 commencement of the suit, can be of no substantial or practical benefit (Gormley v. Day, 114 Ill. 185, 28 N. E. 693). The prayer of the petition could not have been granted. The petition was insufficient and without merit, and the demurrer thereto was properly sustained.

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 November, 1912. He acted under the appointment, devoting his whole time to the performance of the duties imposed, and on June 13, 1914, filed in this court, pursuant to leave 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 Ill. 158)

treasurer, commanding the county and the board of commissioners to make an appropriation to cover the expenses incurred by him as such special state's attorney during the year 1913; the county clerk to draw and

PEOPLE ex rel. NORTHUP v. COOK COUN- the county treasurer to pay warrants upon

TY et al. (No. 9610.)

such appropriation; also commanding the county clerk to draw and the county treasurer to pay warrants against an appropriation of $20,000 made by the board of commissioners for such expenses for the year 1914.

(Supreme Court of Illinois. June 22, 1916.) 1. MANDAMUS 105-GROUNDS FOR RELIEF. Under Hurd's Rev. St. 1913, c. 53, § 8j, providing that where assistant state's attorneys are required in any county the number of such The order of appointment, on its face, purassistants and the salary to be paid shall be determined by the board of county commissioners ported to give the relator "power to appoint or supervisors, and Hurd's Rev. St. 1913, c. 34, any and all assistant special state's attorneys, § 35, providing that before any claim against a clerks, and investigators and other help or county is audited and allowed it must be verified assistance in the performance of said duties, by the affidavit of the claimant or his agent, and when disallowed an appeal may be taken to the to the full extent as if he were the regucircuit court, where the relator was appointed larly elected state's attorney of Cook county, special state's attorney under Hurd's Rev. St. Ill." The relator appointed eight special 1913, c. 14, § 6, concerning the Attorney General state's attorneys and nineteen investigators and state's attorney, and authorizing the appointment of special state's attorney by the and clerks, employed stenographers, and incourts in their absence, under an order of ap- curred other expenses amounting in the agpointment allowing him to employ assistants to gregate to $37,989.71, including his own comthe full extent as if he were legally elected state's attorney, mandamus will not lie for pay-pensation at $800 a month. An answer was ment of amounts claimed by relator for assis- filed, an issue of fact was made up, which tants and expenses until his claim has been au- was referred to a commissioner, evidence dited by the county board and judgment recoverwas taken, and the cause has been submitted ed against the county, since mandamus is not a proper proceeding for the collection of debts, upon the pleadings, commissioner's report, and will only lie against a municipal corpora- and exceptions thereto.

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 auditing and allowing the claim, or by the section 6 of chapter 14 of the Revised Stat- imposition, by law, of a charge without the utes. The relator insists that by this ap- action of the municipal authorities, such as pointment he became an officer for whose the salaries of officers fixed by law, jurors' salary and expenses the county of Cook was fees, or other like charges. The amounts liable, and being so liable was under a duty, claimed for assistants, stenographers, clerks, which might be enforced by mandamus, to and investigators, and for miscellaneous exmake a sufficient appropriation therefor. In penses, are unliquidated demands, which the first quarter of the fiscal year beginning must be audited by the county board or for December 1, 1913, the board of county com- which a judgment must be recovered against missioners appropriated $20,000 for "special the county before the writ of mandamus can state's attorney Northup, salary and expens- be awarded for the payment of them. es," and after the beginning of this suit that Writ denied. amount was paid over to the relator. only claimed $800 a month for his own salary, and therefore that question is no longer | SKINNER et al. v. GLOS et al. (No. 10295.) in the case if the payment of the other claims cannot be enforced by mandamus.


(274 Ill. 58)

(Supreme Court of Illinois. June 22, 1916.) 1. RECORDS 9(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).]


proof is unquestioned that applicant has a feeIn proceedings to register title, where the simple title, a defendant duly served with process and appearing in the case cannot complain resident defendants were fatally defective, under that the publication proceedings as to other nonChancery Act (Hurd's Rev. St. 1915-16, c. 22), §§ 7, 12, as to notice to unknown owners and affidavit thereof.

[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 and that the board of county commissioners Dec. Dig. 9(7).] [Ed., Note.-For other cases, see Records,was under the same obligation to appropriate 3. RECORDS 9(12)-REGISTRATION OF TITLE. money for their payment. If the relator had Objections not made before the examiner and 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 stat-another. ute 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.

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 From a decree for applicants, defendants 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.

In regard to the purchase of supplies and DUNCAN, J. Appellees filed an applicathe incurring of other expense against the tion in the circuit court of Cook county on county, the board of county commissioners is September 17, 1914, to register title in fee authorized to examine and settle all accounts, simple to lots 17, 18, and 19 in subblock 1 of and by section 35 of chapter 34 of the Re- block 1 in Canal Trustees' subdivision of the vised Statutes it is provided that before any east half of section 31, township 39 north, claim against the county is audited and al- range 17 east of the third principal meridian, lowed it must be verified by the affidavit of in said county. Jacob Glos, who claimed tithe claimant or his agent, and when disal- tle to said premises under a tax deed, Aulowed an appeal may be taken to the circuit gust A. Timke, trustee in a trust deed given court. Mandamus is not a proper proceeding by Glos to secure the holders of notes for the for the collection of debts. It will only lie sum of $100,000, and the unknown owners of against ? municipal corporation to enforce said notes were all made defendants. It was the payment of a claim ascertained to be due. 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

In this character of proceeding,

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. 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 acquainted with their condition September 17, 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 testified 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 N. E. 60.

[2] It is next argued that as the petition, including the statement therein that the le

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 N. E. 123; O'Laughlin v. Covell, 222 Ill. 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 objection was raised before the examiner or 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 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 Ill. 121, 107 N. E. 126.

The decree of the circuit court is affirmed. Decree affirmed.

(273 111, 501)

gal holder or holders, owner or owners, of PEAR v. CITY OF EAST ST. LOUIS et al.

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

(No. 10677.)


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 valid and enjoining a violation of the ordinance the city by judging the repealing ordinance incontract. 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 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 CONCLUDEDPERSONS REPRESENTED BY PARTIES TO SUIT. The complaining taxpayer was represented in the federal litigation by the city and is con

cluded 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 missing the bill, and complainant sues out a writ of error. Decree affirmed.

of East St. Louis and others. Decree dis

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.

Louis and as a taxpayer upon said prop-
erty in said city. The city of East St. Louis,
the mayor, other city officers and the alder-
men of said city, and the City Water Com-
pany of East St. Louis and Granite City
were made defendants to the bill.
not alleged that the ordinance was oppres-
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.
bill alleges that when the report of the wa-
ter committee was read Aldermen Gavin
and Haggerty requested that any further ac-
tion 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 com-
mittee at the meeting held July 6, 1914. On
the 20th of July the city clerk addressed a
communication to the mayor and council,
stating the minutes of July 6th were in-
correct in omitting to state that Aldermen
Gavin and Haggerty requested the post-
ponement 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-
tion 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 De-
cember 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

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 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 lay and remove, repair and maintain, water pipes, mains, fire hydrants, fixtures, and appurtenances in 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.

The bill in this case was filed in the city court of East St. Louis February 6, 1915. It was filed by complainant as an owner of real and personal property in the city of East St.

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 al dermen present."

The City Water Company of East St. Louis and Granite City was the only defendant answering the bill. The answer set out the

dismissed the bill for want of equity, and certified that the validity of an ordinance was involved, and the public interest required it to be passed upon by this court, and complainant has sued out this writ of error.

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 action. The trial court, after the hearing, was legally passed. The answer further averred that the water company filed its acceptance of the ordinance on July 10, 1914, that it paid to the city of East St. Louis $75,000, which was retained by the city, and 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 treat- suit in the federal court involved the quesing 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 in Ordinance No. 1972, from treating said ordinance as invalid or repealed, and from any action, by ordinance or resolution, to 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

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

tion whether the city was bound by ordi-
nance No. 1972, and the decision of that
question depended upon whether it
a legal ordinance, and whether it had the
power to repudiate and repeal it. This was
a matter of general interest to all the tax-
payers 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 pres-
ent. The issues in that case involved the
right of the taxpayers to be relieved of the
obligations imposed by the ordinance, which
is the same question involved in this case.
It is not claimed complainant has sustained
or will sustain any wrong or injury differ-
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

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