band's estate under said contract, Whether the interest, fixed by law, of the husband in the estate of a deceased wife is the same as the interest of a Wife in her deceased huSband's estate or not. The question presented here for decision is, in Substance, the Same as the question decided in the late case of Kroell, 219 Ill. 105, 76 N. E. 63, where it was held an antenuptial contract executed jointly between husband and wife, whereby each party released to the other all interest in the property of the other, both real and personal, and renounced forever all claims, in law and equity, in the property or estate of the other, worked a release of the right of a wife to a widow's award in her deceased husband's estate where there were no minor children of the deceased husband living with the widow, and the fact that under the law the interest of a husband in the property or estate of a deceased wife is not of the same kind and amount as the interest of a wife in the estate Of her deceased husband did not affect the Construction of said contract. That case we think decisive of the case at bar, and that the trial and Appellate Courts erred in holding that the appellee was entitled to a widow’s award out of her deceased husband’s estate. The judgments of the circuit and Appellate Courts Will therefore be reverSed. Judgment reversed.

(222 Ill. 112) CITY OF CHICAGO et al V. GILLEN. (Supreme Court of Illinois. June 14, 1906.) MUNICIPAL CORPORATIONS – EMPLOYES – REMOVAL–PROCEEDINGS. In the absence of notice to a municipal employé of charges against him, a trial board and civil Service commission were without authority to hear and determine them. [Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 353.]

Appeal from Appellate Court, First District.

Certiorari by Daniel J. Gillen against the city of Chicago and others, to review the action Of the Civil Service Commission. From judgment of the Appellate Court, affirming a judgment of the superior court, quashing proceedings Of the Commission, respondents appeal. Affirmed.

Cecil Page and James Hamilton Lewis, COrD. Counsel, for appellants. A. D. Gash, for appellee.

PER CURIAM. The two controlling questions in this case, namely, the jurisdiction of the court and the waiver of notice by appellee, are conclusively settled by the case of Powell v. Bullis, 221 Ill. 379, 77 N. E. 575. 'The record filed as a return to the Writ fails to show that appellee was notified of the charges against him or in any way waived Such notice. The trial board and Civil Service commission, in the absence of such notice, were Without authority to hear or determine

the charges, and the judgment must be affirmed notwithstanding the other questions urged by appellants.

Judgment affirmed.

(222 Ill. 9)




(Supreme Court of Illinois. June 14, 1906.) 1. MANDAMUS—RELIEF—COUNTY BOARDS. Where a petition by the highway commissioners of a township to the board of supervisors of the county shows a compliance with the act in regard to roads and bridges in counties under township organization, section 19, as amended by Act June 17, 1891, (Laws 1891, p. 188). providing that the supervisors shall pay one-half the cost of constructing or repairing any bridge, upon a petition showing certain facts, and the necessary facts are found to exist, the duty of the board to make the appropriation will be enforced by mandamus. 2. SAME. Where, at the time of a petition by high

way commissioners, there was no money in the county treasury out of which the appropriation could be paid, and taxes had been levied and collected to the limit fixed by law, and exhausted in the payment of ordinary expenses. and the county was indebted beyond the limit fixed by Const. art. 9, § 12, an appropriation by the supervisors could not be compelled by mandamus.

Appeal from Circuit Court, White County; P. A. Pearce, Judge.

Mandamus by the commissioners of highways of the town of Phillips, in White county, to compel the board of supervisors to appropriate a Sum of money to meet expenses of building bridges. From a judgment awarding the Writ, defendants appeal. Reversed.

Parker & Pearce, Noah C. Bainum, and S. L. Garrison, for appellants. William L. Martin, for appellee.

CARTWRIGHT, J. The commissioners of highways of the town of Phillips, in White county, filed in the circuit court of said County a petition for a Writ of mandamus to compel the board of Supervisors of said

county to appropriate the sum of $1,000 to

meet one-half the expenses of building two bridges in said town. The facts set forth in the amended petition showed a full compliance by the commissioners with all the provisions of section 10 of the act in regard to roads and bridges in Counties under townShip organization, as amended by the act approved June 17, 1891, in force July 1, 1891. Laws 1891, p. 188. The answer of the defendants did not deny any of the facts so alleged, which were therefore admitted, but it alleged as a defense to the action the following facts: That there was no money in the treasury of Said county Out of which the appropriation asked for could be paid; that defendants had for more than two years last past caused to be levied and collected taxes for county purposes to the amount of 75 cents on each $100 valuation of property in the county; that the taxes so collected had been exhausted in the payment of the Ordinary expenses of the county, and the County was unable to raise an additional amount of money for any purpose; that the legal and Valid bonded indebtedness of the county outstanding at the time the petitions for aid were presented to the board and at the time the anSWer WaS filed announted to $196,000; that the total value of the property of the county as ascertained by the last assessment for State and county taxes was $2,869,541; that such indebtedness was above the limit prescribed by section 12 of article 9 of the Constitution, and that by reason of said indebtedness the defendants could not legally make the appropriation asked for and appoint a committee to act on behalf of the county to make contracts for building the bridges. The relators demurred to the anSWer and the demurrer Was Sustained. The defendants elected to Stand by the anSWer, and judgment was thereupon entered awarding the writ of mandamus as prayed for. The appeal in this case was prosecuted from that judgment. The averments of the petition, not denied by the answer and therefore admitted, show that the commissioners of highways Complied with the provisions of the statute which required the board of supervisors to appropriate from the county treasury a sum /sufficient to meet one-half the expenses of building the bridges, and to appoint three members of the board of Supervisors to represent the county in making all contracts necessary for the construction of such bridges. It has several times been held that where a petition to a board of supervisors shows a compliance with the statute on the part of the commissioners and the necessary factS are found to exist, it is the duty of the board to make the appropriation asked for, and the duty will be enforced by writ of mandamus. Macon County V. People, 121 Ill. 616, 13 N. E. 220. If, however, the acts enjoined by the statute cannot be performed in a particular case without a violation of the Constitution, it is neither the right nor duty of a county board to perform such acts and their performance will not be enforced by the courts. Section 12 of article 9 of the Constitution prohibits a county from becoming indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding 5 per centum on the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness. If there was no money in the treasury of White county which could be lawfully appropriated to meet Onehalf of the expenses of building these bridges and the county was indebted beyond the limit fixed by the Constitution, it would have been a Violation of the Constitution to create any further indebtedness, although the stat

ute required it to be done. The constitutional prohibition applies to all kinds of indebtedness, including that incurred for ordinary current expenses, and any municipality indebted to the limit fixed by the Constitution must carry on its business on the cash system, and not upon credit to any extent or for any purpose. Prince v. City of Quincy, 128 Ill. 443, 21 N. E. 768. It has been held that a municipality so indebted cannot enter into a contract for the purpose of performing its regular duties and exercising its chartered powers, even where monthly payments are to be made as the Work progresses. City Of Chicago v. McDonald, 176 Ill. 404, 52 N. E. 982. The facts alleged in the answer and admitted by the demurrer are, that there Was no money in the treasury out of which the appropriation could be paid; that taxes had been levied and Collected to the limit fiXed by the law, and the taxes so collected had been exhausted in the payment of ordinary expenses of the county, and that the county was intebted beyond the limit fixed by the Constitution. There being no money in the treasury out of which an appropriation could be paid, the contract for the construction of the bridges would have created an indebtedness in Violation of the provision of the Constitution. If the Legislature intended, as urged by counsel, that bridges should be built and that there Should not be a return to the primitive method of fording creeks and rivers, such intention cannot be enforced in a case Where its enforcement WOuld acCOmplish a violation of the Constitution. The Court erred in Sustaining the demurrer to the answer and entering judgment awarding the Writ. To justify a court in awarding a writ of mandamus involving an expenditure Of money it must appear that the necessary funds are On hand Or OtherWise under the control of the defendant. Hall V. People, 57 Ill. 307. The judgment of the circuit Court is reversed, and the cause remanded. Reversed and remanded.

(222 Ill. 135), CULLISON V. CONNOR. June 14, 1906.)


In an action to cancel a deed, evidence held to sustain a finding that the inclusion of an alley in the tract described was by mutual mistake of the parties. 2. SAME—RELIEF GRANTED.

Where an action is brought to cancel a deed, and the only answer was to the effect that the defendant got what he purchased, and that there was no fraud on his part, and the court found that there was a mutual mistake in the description of the tract conveyed, there was no error in canceling the deed instead of reforming it.

Error to Circuit Court, White County; P. A. Pearce, Judge.

(Supreme Court of Illinois.

Action by Rebecca M. Connor against James M. Cullison. From a decree in favor of complainant, defendant brings error. Affirmed.

T. B. Steele, for plaintiff in error. Noah

C. Bainum, for defendant in error.

WILKIN, J. On April 17, 1905, the complainant, Rebecca Connor, filed her bill in the circuit court of White county against the defendant, James M. Cullison, in which She alleged that On April 4, 1905, She Was the owner of a part of lot 11, block 1, in Stewart's addition to Carmi, Ill., “beginning at a point nine feet north of the southeast corner Of Said lot; thence north 52 degrees east On the Southerly side of the alley parallel with Cherry street, if said alley were extended, 61 feet and 2 inches to a stake; thence South 38 degrees east 40% feet to the north end Of lot No. 27, in the second addition to Carmi; thence north On the east line of Said lot NO. 11 to a point 24 feet south of the northwest corner of Said lot No. 11; thence West 75 feet to the West line of said lot No. 11; thence south to the place of beginning;” that on the date aforesaid she conveyed Said lot to the defendant in consideration of $100, and she was then, and is now, in possession of the same; that She contracted With defendant to convey to him that part of said lot 11, block 1, of Stewart's addition to Carmi, described as follows: “Beginning 24 feet South of the northeast corner of Said lot 11; thence South on the east line of lot 11 to its intersection with the northerly side of the alley on the northerly side of lot 21, in the second addition to Carmi; thence South 52 degrees West, parallel to Cherry street and with the northerly side of said alley if extended, to the West line of lot 11; thence north to a point 24 feet South of the northwest corner of lot 11; thence east 75 feet to the place of beginning,” called her “back lot.” It is then alleged that it was agreed between the parties that One James I. McClintock, or his son, William R. McClintock, Should prepare the deed of conveyance, and that the defendant notify them to do so; that he fraudulently, and With the intent to defraud the complainant, misrepresented the contract to the said McClintock, so that the deed was so prepared as to convey the lot first above described; that the complainant is uneducated and unable to Write; that in a few days she discovered the mistake and tendered back to the defendant the $100 paid her and demanded a reconveyance to her of said lot, and afterwards that he reconvey to her that portion of the same not intended to be conveyed, but he refused to comply with either request. She prayed that the deed be canceled and held null and void, and deposited the $100 consideration in Court for the defendant. He filed his answer to the bill, alleging that on the date mentioned he purchased of Complainant that part of lot 11 first described, and that the purchase and deed were made in good faith for a Valuable consideration and

without fraud on his part. Upon a hearing the deed of conveyance was set aside at the cost of the defendant, and to reverse that deCree this Writ Of error has been Sued out. It is assigned for error that the evidence fails to support the finding and the decree of the court that the defendant fraudulently induced and caused the Scrivener to SO draw the deed as to erroneously describe the property; also, that the court erred in vacating and annulling the entire deed, but should have found that the mistake Was mutual between the parties, neither knowing the correct description of the property, and therefore the deed should have been reformed SO as to carry into effect the agreement of the parties. The abstract of the bill is meagre, and while it shows the charge in the bill to be that the defendant fraudulently procured the deed to be made as it was, it also sufficiently appear'S that the relief prayed is upon the ground of a mistake. The decree, as abStracted, does not find that the defendant was guilty of fraud, but rather that the description in the deed Was a mistake. It finds that the complainant sold and intended to convey a certain part of the lot, and when she discovered the mistake in the deed she asked the defendant to correct it, which he refused to do. We have examined the evidence produced upon the trial, and we think it clearly shows that the deed Was made to cover a portion of the lot not contemplated by the parties at the time of the sale and conveyance. There was a private alley or driveway through lot 11, and the complainant testified: “I had a talk With defendant. I told him I heard he wanted to buy that lot across the alley. He said he did. He came over, and I sold him the lot that has got the barn on it, back of my premises.” Again: “I intended to give him the back lot for the $100 consideration.” She discovered the mistake a couple of months afterwards and spoke to the defendant about it. The line ran close to her dwelling house, and defendant said he would not bother her as long as she lived. The deed included part of her kitchen and all the alley. J. I. McClintock, who made the deed, testified that the defendant called On him and Said he was about to purchase what they called the “back lot” of Mrs. Connor; that he afterwards said he understood he had bought a part of Mrs. Connor's house, but he did not intend to bother her; that he said nothing about the alley. The defendant himself testified that he agreed With the complainant to buy her back lot; that he did not know it would take part of her buildings; that he understood he was getting all of the back lot; that there was no alley but there were gates; that it was Only a private passageway back there; that it is used by several of the neighbors; that he thought he was getting all she owned of lot 11. It is manifest from this testimony that the complainant intended to sell, and the defendant understood he was purchasing, what was known as the “back lot,” which was across the private alley from her buildings, and that evidence justified the finding that there was a mutual mistake in the deed. Whether it was the result of fraud, as alleged in the bill, or an error in the description, the defendant fraudulently sought to retain the benefit of the mistake by refusing to cancel the deed. His Statement that he would not disturb her while she lived, clearly shows that he was disposed to retain the advantage which he thought he had obtained by reason of the misdescription in his deed. The contention that the Court below should have reformed the deed, and given the defendant what he really purchased, instead of setting aside the deed, would be entitled to COnSideration if the issues in the case Warranted any such relief; but the prayer of the bill was that the deed should be set aside, and the only answer which the defendant made to it was that he only got what he purChased, and that there Was no fraud On his part. If he desired a reformation of the deed SO aS to make it COnform With the real intention of the parties he should have filed a CrOSS-bill Or asked that relief in his answer. The CauSe Submitted to the Chancellor for his decision was upon the theory that the minds of the parties never agreed as to the conveyance which was actually made, and that by tendering back the money paid, the complainant was entitled to have the conveyance set aside. The evidence justified that decree, and we see no reason for disturbing it. Decree affirmed.

(222 Ill. 63)

KAMMANN v. CITY OF CHICAGO. (Supreme Court of Illinois. June 14, 1906.)

1. CERTIORARI — JURISDICTION – CIVIL SERVICE COMMISSIONERS–PROCEEDINGS-REVIEW. The circuit and supreme courts have jurisdiction to award a Writ of certiorari to review proceedings of the civil service commissioners removing a city employé from his position. [Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 38, 46–50.]

2. MUNICIPAL CORPORATIONS – IEMPLOY#S — REMOVAL–CAUSE—CIVIL SERVICE COMMISSION. Hurd's Rev. St 1905, c. 24, § 457, provides that employés in the classified civil service may be removed for cause, if found guilty on an investigation of written charges before the civil service commission or board appointed by the commission to conduct the examination. Held that, the statute being silent as to what constitutes “cause,” the right to determine such question was within the jurisdiction of the commission. 3. SAME—CAUSES FOR REMOVAL-SPECIFICATION.—RULES. Such section does not require the civil service commission to specify in written rules every case which shall be deemed cause for removal. 4. SAME—RULES—CONSTRUCTION. A rule of the Chicago civil service commission provides that any officer or employé in the classified service of the city, who shall absent himself from duty for a period of 10 days with

out permission in writing from his superior officer, shall be considered as discharged, but that such officer or employé within 5 days may obtain a reinstatement in the discretion of the commission. Held, that such rule was intended to provide for a contingency, where an employé in the classified service apparently abandoned his position, and did not prevent the commission from discharging an employé who was found guilty after trial, as authorized by Hurd's Rev. St. 1905, c. 24, § 457, of being three days absent from duty without permission. 5. CERTIORARI—WRIT-RETURN—REVIEW. When a return is properly made to a writ of certiorari, the superior court tribunal tries the case, not on the allegations of the petition nor on any issue of fact, but on the record alone as disclosed by the return.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Certiorari. §§ 176, 177.]

Error to Appellate Court, First District.

Certiorari by William T. Kammann to reView a determination of the civil Service Commission of the city of Chicago, removing petitioner from his position as mechanical and electrical engineer for being absent for a Space Of three dayS Without leave. From a judgment quashing the record of conviction, reversed by the Appellate Court, petitioner bringS error. Affirmed.

A. D. Gash, for plaintiff in error. Michael F. Sullivan (James Hamilton Lewis, Corp. Counsel, of counsel), for defendant in error.

SCOTT, C. J. This Was certiorari in the circuit court of Cook county. Plaintiff in error was a duly qualified civil service employé, and Was by Written complaint charged before the civil service commission with being absent from duty, without permission, three days, Viz., January 1, 2, and 3. 1904. The commission, upon a trial, found him guilty as charged, and he was removed from the service. On the trial in the circuit court a judgment was entered quashing the record of the connmission. The city appealed to the Appellate Court, and the case was there assigned to the branch court, where the judgment of the circuit Court Was reversed, On the ground that the circuit Court had no jurisdiction to review, by certiorari, the record of the civil service commission made in trying an employé. The CauSe Was not remanded. I\ammann brings the record to this court by Writ of Cl'I'Or.

In the recent case of POWell V. Bullis, 221 Ill. 379, 77 N. E. 575, we determined that the circuit and superior courts have jurisdiction to award the Writ Of Certiorari to review such proceedings of civil service commisSioners as are here involved, and there is no Occasion to discuss that proposition further. In the circuit court a return Was made to the writ showing that Kammann had been charged and found guilty as above stated, and that he had been removed from his position of mechanical and electrical engineer pursuant to the finding. Upon the application of IXammann the circuit court required the return to be amended by inserting therein a printed copy of the civil service rules showing all the rules of the commission; section 3 of rule 14 being in words following: “Absence from Duty,+Any officer or employé in the classified service of the city who shall absent himself from duty for the period of ten days without permission, in writing, from his superior officer, shall be considered as discharged from the service of the city. Such officer or employé may, within five days after such discharge, make an application, in Writing, to this commission for reinstatement, and the commission shall thereupon give him a hearing, and may grant Said reinstatement if it deems the same to be for the interest of the service. If said application for reinstatement is refused the discharge shall be final.” The question whether these rules were a proper part of the record of the commissioners is not before uS. Rammann COntended, and the circuit Court held, that the commission had exceeded its jurisdiction in discharging him for absence from duty three days without permission, while the commission had in full force and effect a rule which provided that, in the event of absence from duty 10 days without permission, the 'employé should be considered as discharged that as great a penalty could not be visited upon him for three days' absence as the rules provided for 10 days’ absence. Section 457 of chapter 24 of Hurd's Revised Statutes of 1905 provides that employés in the classified civil service may be removed for cause if found guilty upon an investigation of written charges before the civil service COmniSSion Or before SOme Officer Or board appointed by the commission to conduct the investigation; the finding and decision of such officer or board being subject to the approval of the commission. The statute is silent as to What constitutes “cause.” Manifestly the right to determine that question is left With the civil service commission, and we have held that this statute does not require the commission to specify, in written rules, every case which shall be deemed cause for removal. Joyce v. City of Chicago, 216 Ill. 466, 75 N. E. 184. Further, we do not think the rule above quoted bears the construction plaintiff in error places thereon. The purpose of that rule evidently was to provide for a contingency where one employed by the city in the classified civil service had apparently abandoned his position. If absent for 10 days his place shall be considered vacant and another may be appointed in his stead. That rule does not contemplate a trial upon written charges, where an opportunity shall be given the employé to be heard. Its purpose is to authorize the appointment of a successor of One Who has absconded or otherwise left the employment of his own accord. We are of the opinion that, notwithstanding that rule, the commission had the right to discharge Kammann from the classified service of the city after he had been found guilty of being three days absent from duty without per

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mission, upon a trial conducted in accordance With Section 457, Supra.

It is also urged that certain averments contained in the petition for the writ show that the plaintiff in error should not have been found guilty by the commission. In this state, when the return is properly made, the superior tribunal tries the cause, not upon the allegations of the petition nor upon any issue of fact, but by the record alone as disclosed by the return. Whittaker v. Village of Venice, 150 Ill. 195, 37 N. E. 240; Drainage Com'rs V. Volke, 163 Ill. 243, 45 N. E. 415; Behrens v. Com’rs of Highways, 169 Ill. 558, 48 N. E. 578.

The ground upon which the judgment of the branch Appellate Court was based did not warrant the conclusion reached by that court, but inasmuch as that judgment, for reasons hereinabove stated, correctly determined the rights of the parties to this controversy, it Will be affirmed.

Judgment affirmed.

(222 Ill. 41.) VANEK v. SENFT. (Supreme Court of Illinois. June 14, 1906.)

1. APPEAL – REVERSAL – REMAND-PROCEEDINGS AFTER REMAND. Where an order sustaining a demurrer to a bill is reversed on appeal, and the cause remanded with directions to proceed in accordance with the views of the Supreme Court while the usual practice on the redocketing of the cause is for the superior court to overrule the demurrer and enter a rule on the defendant to answer the bill, such practice is not necessary in the absence of a request by defendant for leave to anSWer. 2. SAME—DISCRETION-REVIEW. Where an order sustaining a demurrer to a bill is reversed on appeal and the cause is remanded, whether defendant shall be ruled to answer is a question of discretion of the trial court which will not be reviewed on appeal. 3. SAME – PROCEEDINGS AFTER REMAND MORTGAGES — FORECLOSURE – BILL TO REDEEM-PRO OF-DECREE. Where an order sustaining a demurrer to a bill to secure an equitable redemption from a foreclosure sale was reversed on appeal to the Supreme Court which found the relative value of the lots owned by complainant and defendant, and held that complainant was entitled to redeem his lot by paying $237.64, it was not error for the trial court on remand, in the absence of any request by defendant to answer or that the case be referred to the master to take testimony, to enter a decree authorizing such redemption on payment of the amount stated Without formal proof.

Appeal from Appellate Court, First District.

Suit by John Senft against Jakub Vanek. From a decree in favor of complainant, affirmed by the Appellate Court, defendant appeals. Affirmed.

On April 4, 1900, appellee filed his bill in chancery in the Superior court of Cook county against appellant and others, in which he alleged that the defendant Jakub Vanek was the owner of lot 2 and the complainant the OWner of a part of lot 1 in a certain subdivi

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