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band's estate under said contract, whether the charges, and the judgment must be the interest, fixed by law, of the husband in affirmed notwithstanding the other questions the estate of a deceased wife is the same as urged by appellants. the interest of a wife in her deceased hus

Judgment affirmed. band'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,

(222 Ill. 9) 219 Ill. 105, 76 N. E. 63, where it was held an BOARD OF SUP'RS OF TOWN OF PHILantenuptial contract executed jointly between LIPS, WHITE COUNTY, V. PEOPLE ex husband and wife, whereby each party released rel. COMISSIONERS OF HIGHWAYS. to the other all interest in the property of the (Supreme Court of Illinois. June 14, 1906.) other, both real and personal, and renounced

1. MANDAMUS-RELIEF-COUNTY BOARDS. forever all claims, in law and equity, in the Where a petition by the highway commisproperty or estate of the other, worked a re sioners of a township to the board of super

visors of the county shows a compliance with lease of the right of a wife to a widow's

the act in regard to roads and bridges in counaward in her deceased husband's estate

ties under township organization, section 1.), where there were no minor children of the as amended by Act June 17, 1891, (Laws 1891, deceased husband living with the widow, and

p. 188). providing that the supervisors shall pay

one-half the cost of constructing or repairing the fact that under the law the interest of a

any bridge, upon a petition showing certain husband in the property or estate of a deceas facts, and the necessary facts are found to ed wife is not of the same kind and amount exist, the duty of the board to make the apas the interest of a wife in the estate of her

propriation will be enforced by mandamus.

2. SAME. deceased husband did not affect the construc

Where, at the time of a petition by hightion of said contract. That case we think

way commissioners, there was no money in the (lecisive of the case at bar, and that the trial county treasury out of which the appropriaand Appellate Courts erred in holding that tion could be paid, and taxes had been levied

and collected to the limit fixed by law, and the appellee was entitled to a widow's award

exhausted in the payment of ordinary expenses, out of her deceased husband's estate.

and the county was indebted beyond the limit The judgments of the circuit and Appellate fixed by Const. art. 9, § 12, an appropriation Courts will therefore be reversed.

by the supervisors could not be compelled by

mandamus. Judgment reversed.

Appeal from Circuit Court, White County;

P. A. Pearce, Judge. (222 Ill. 112)

Mandamus by the commissioners of highCITY OF CHICAGO et al v. GILLEN.

ways of the town of Phillips, in White coun(Supreme Court of Illinois. June 14, 1906.)

ty, to compel the board of supervisors to MUNICIPAL CORPORATIONS — EMPLOYÉS – RE

appropriate a sum of money to meet exMOVAL-PROCEEDINGS.

penses of building bridges. From a judgIn the absence of notice to a municipal ment awarding the writ, defendants appeal. employé of charges against him, a trial board Reversed. and civil service commission were without authority to hear and determine them.

Parker & Pearce, Noah C. Bainum, and [Ed. Note.-For cases in point, see vol. 36, S. L. Garrison, for appellants. William L. Cent. Dig. Municipal Corporations, $ 353.] Martin, for appellee. Appeal from Appellate Court, First Dis

CARTWRIGHT, J. The commissioners of trict.

highways of the town of Phillips, in White Certiorari by Daniel J. Gillen against the

county, filed in the circuit court of said city of Chicago and others, to review the

county a petition for a writ of mandamus to action of the Civil Service Commission.

compel the board of supervisors of said From judgment of the Appellate Court,

county to appropriate the sum of $1,000 to affirming a judgment of the superior court,

meet one-half the expenses of building two quashing proceedings of the Commission, re

bridges in said town. The facts set forth spondents appeal. Affirmed.

in the amended petition showed a full comCecil Page and James Hamilton Lewis, pliance by the commissioners with all the Corp. Counsel, for appellants. A. D. Gash, provisions of section 19 of the act in regard for appellee.

to roads and bridges in counties under town

ship organization, as amended by the act PER CURIAM. The two controlling ques approved June 17, 1891, in force July 1, 1891. tions in this case, namely, the jurisdiction of Laws 1891, p. 188. The answer of the dethe court and the waiver of notice by ap fendants did not deny any of the facts so pellee, are conclusively settled by the case alleged, which were therefore admitted, but of Powell v. Bullis, 221 Ill. 379, 77 N. E. 575. it alleged as a defense to the action the The record filed as a return to the writ fails following facts: That there was no money to show that appellee was notified of the in the treasury of said county out of which charges against him or in any way waived the appropriation asked for could be paid; such notice. The trial board and civil service that defendants had for more than two years commission, in the absence of such notice, last past caused to be levied and collected were without authority to hear or determine 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 amounted 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. (Supreme Court of Illinois. June 14, 1906.) 1. CANCELLATION

OF

INSTRUMENTS EVIDENCE.

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.

Action by Rebecca M. Connor against James ! without fraud on his part. Upon a hearing M. Cullison. From a decree in favor of com the deed of conveyance was set aside at the plainant, defendant brings error. Affirmed. cost of the defendant, and to reverse that de

cree this writ of error has been sued out. T. B. Steele, for plaintiff in error. Noah

It is assigned for error that the evidence C. Bainum, for defendant in error.

fails to support the finding and the decree of

the court that the defendant fraudulently inWILKIN, J. On April 17, 1905, the com

duced and caused the scrivener to so draw plainant, Rebecca Connor, filed her bill in

the deed as to erroneously describe the propthe circuit court of White county against

erty; also, that the court erred in vacating the defendant, James M. Cullison, in which

and annulling the entire deed, but should she alleged that on April 4, 1905, she was the

have found that the mistake was mutual beowner of a part of lot 11, block 1, in Stewart's addition to Carmi, ill., “beginning at a

tween the parties, neither knowing the cor

rect description of the property, and therepoint nine feet north of the southeast corner

fore the deed should have been reformed so of said lot; thence north 52 degrees east on the southerly side of the alley parallel with

as to carry into effect the agreement of the

parties. Cherry street, if said alley were extended,

The abstract of the bill is meagre, and 61 feet and 2 inches to a stake; thence south

while it shows the charge in the bill to be 38 degrees east 4012 feet to the north end of

that the defendant fraudulently procured the lot No. 27, in the second addition to Carmi;

deed to be made as it was, it also sufficiently thence north on the east line of said lot No.

appears that the relief prayed is upon the 11 to a point 24 feet south of the northwest

ground of a mistake. The decree, as abcorner of said lot No. 11; thence west 75 feet

stracted, does not find that the defendant was to the west line of said lot No. 11; thence

guilty of fraud, but rather that the descripsouth to the place of beginning;" that on the

tion in the deed was a mistake. It finds that date aforesaid she conveyed said lot to the defendant in consideration of $100, and she

the complainant sold and intended to convey

a certain part of the lot, and when she diswas then, and is now, in possession of the

covered the mistake in the deed she asked the same; that she contracted with defendant to

defendant to correct it, which he refused to convey to him that part of said lot 11, block 1,

do. We have examined the evidence proof Stewart's addition to Carmi, described as

duced upon the trial, and we think it clearly follows: “Beginning 24 feet south of the

shows that the deed was made to cover a northeast corner of said lot 11; thence south on the east line of lot 11 to its intersection

portion of the lot not contemplated by the with the northerly side of the alley on the

parties at the time of the sale and conveynortherly side of lot 21, in the second addi

ance. There was a private alley or driveway tion to Carmi; thence south 52 degrees west,

through lot 11, and the complainant testified:

“I had a talk with defendant. I told him I parallel to Cherry street and with the northerly side of said alley if extended, to the

heard he wanted to buy that lot across the west line of lot 11; thence north to a point

alley. He said he did. He came over, and I 24 feet south of the northwest corner of lot

sold him the lot that has got the barn on 11; thence east 75 feet to the place of be

it, back of my premises.” Again: "I intendginning," called her "back lot.” It is then

ed to give him the back lot for the $100 conalleged that it was agreed between the par

sideration.” She discovered the mistake a ties that one James I. McClintock, or his son,

couple of months afterwards and spoke to William R. McClintock, should prepare the

the defendant about it. The line ran close to deed of conveyance, and that the defendant

her dwelling house, and defendant said he notify them to do so; that he fraudulently,

would not bother her as long as she lived. and with the intent to defraud the complain

The deed included part of her kitchen and ant, misrepresented the contract to the said all the alley. J. I. McClintock, who made McClintock, so that the deed was so prepared

the deed, testified that the defendant called as to convey the lot first above described ;

on him and said he was about to purchase that the complainant is uneducated and un

what they called the "back lot” of Mrs. Conable to write; that in a few days she discov

nor; that he afterwards said he understood ered the mistake and tendered back to the

he had bought a part of Mrs. Connor's house, defendant the $100 paid her and demanded

but he did not intend to bother her; that he a reconveyance to her of said lot, and after

said nothing about the alley. The defendant wards that he reconvey to her that portion

himself testified that he agreed with the comof the same not intended to be conveyed,

plainant to buy her back lot; that he did not but he refused to comply with either request.

know it would take part of her buildings; She prayed that the deed be canceled and

that he understood he was getting all of the held null and void, and deposited the $100 back lot; that there was no alley but there consideration in court for the defendant. He

were gates; that it was only a private pasfiled his answer to the bill, alleging that on sageway back there; that it is used by severthe date mentioned he purchased of com al of the neighbors; that he thought he was plainant that part of lot 11 first described, getting all she owned of lot 11. .and that the purchase and deed were made in It is manifest from this testimony that the good faith for a valuable consideration and complainant intended to sell, and the defend

ant understood he was purchasing, what was out permission in writing from his superior known as the "back lot,” which was across

officer, shall be considered as discharged, but

that such officer or employé within 5 days may the private alley from her buildings, and that

obtain a reinstatement in the discretion of the evidence justified the finding that there was

commission. Held, that such rule was intended a mutual mistake in the deed. Whether it to provide for a contingency, where an employé was the result of fraud, as alleged in the bill,

in the classified service apparently abandoned or an error in the description, the defendant

his position, and did not prevent the commis

sion from discharging an employé who was fraudulently sought to retain the benefit of

found guilty after trial, as authorized by Hurd's the mistake by refusing to cancel the deed. Rev. St. 1905, c. 24, § 457, of being three days His statement that he would not disturb her

absent from duty without permission.

5. CERTIORARI-WRIT-RETURN-REVIEW. while she lived, clearly shows that he was

When a return is properly made to a writ disposed to retain the advantage which he

of certiorari, the superior court tribunal tries thought he had obtained by reason of the the case, not on the allegations of the petimisdescription in his deed.

tion nor on any issue of fact, but on the record The contention that the court below should

alone as disclosed by the return.

[Ed. Note.For cases in point, see vol. 9, have reformed the deed, and given the de

Cent. Dig. Certiorari. $$ 176, 177.] fendant what he really purchased, instead of setting aside the deed, would be entitled Error to Appellate Court, First District. to consideration if the issues in the case war

Certiorari by William T. Kammann to reranted any such relief; but the prayer of the

view a determination of the civil service combill was that the deed should be set aside,

mission of the city of Chicago, removing peand the only answer which the defendant titioner from his position as mechanical and made to it was that he only got what he pur

electrical engineer for being absent for a chased, and that there was no fraud on his space of three days without leave. From a part. If he desired a reformation of the deed judgment quashing the record of conviction, so as to make it conform with the real in reversed by the Appellate Court, petitioner tention of the parties he should have filed a brings error. Affirmed. cross-bill or asked that relief in his answer.

A. D. Gash, for plaintiff in error. Michael The cause submitted to the chancellor for his

F. Sullivan (James Hamilton Lewis, Corp. decision was upon the theory that the minds

Counsel, of counsel), for defendant in error. of the parties never agreed as to the conveyance which was actually made, and that SCOTT, C. J. This was certiorari in the by tendering back the money paid, the com circuit court of Cook county. Plaintiff in plainant was entitled to have the conveyance error was a duly qualified civil service exset aside. The evidence justified that decree, ployé, and was by written complaint charged and we see no reason for disturbing it. before the civil service commission with being Decree affirmed.

absent from duty, without permission, three days, viz., January 1, 2, and 3. 1991. The

commission, upon a trial, found him guilty as (222 Ill. 63)

charged, and he was removed from the service. KAMMANN v. CITY OF CHICAGO.

On the trial in the circuit court a judgment (Supreme Court of Illinois. June 14, 1906.) was entered quashing the record of the com1. CERTIORARI — JURISDICTION CIVIL SERV mission. The city appealed to the Appellate ICE COMMISSIONERS-PROCEEDINGS-REVIEW.

Court, and the case was there assigned to the The circuit and supreme courts have jurisdiction to award a writ of certiorari to review

branch court, where the judgment of the cirproceedings of the civil service commissioners cuit court was reversed, on the ground that removing a city employé from his position. the circuit court had no jurisdiction to re

[Ed. Note.-For cases in point, see vol. 9, view, by certiorari, the record of the civil Cent. Dig. Certiorari, $$ 38, 46-50.]

service commission made in trying an employé. 2. MUNICIPAL CORPORATIONS — EMPLOYÉS

The cause was not remanded. Kammann REMOVAL-CAUSE-CIVIL SERVICE COMMIS

brings the record to this court by writ of SION.

Hurd's Rev. St 1905, c. 24, $ 457, pro error. vides that employés in the classified civil serr In the recent case of Powell v. Bullis, 221 ice may be removed for cause, if found guilty

Ill. 379, 77 N. E. 575, we determined that the on an investigation of written charges before the civil service commission or board appointed

circuit and superior courts have jurisdiction by the commission to conduct the examination. to award the writ of certiorari to review Field that, the statute being silent as to what

such proceedings of civil service commisconstitutes "cause," the right to determine such question was within the jurisdiction of the

sioners as are here involved, and there is no commission.

occasion to discuss that proposition further. 3. SAME-CAUSES FOR REMOVAL-SPECIFICA In the circuit court a return was made to the TION-RULES.

writ showing that Kammann had been chargSuch section does not require the civil serv

ed and found guilty as above stated, and ice commission to specify in written rules every case which shall be deemed cause for re

that he had been removed from his position moval.

of mechanical and electrical engineer pursu4. SAME-RULES-CONSTRUCTION.

ant to the finding. Upon the application of A rule of the Chicago civil service commis

Kammann the circuit court required the resion provides that any officer or emplove in the classified service of the city, who shall absent

turn to be amended by inserting therein a himself from duty for a period of 10 days with- | printed copy of the civil service rules show

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, 103 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.

ing 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. Kammann 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 commission 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

78 N.E.--2

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(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-PROOF-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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