« ForrigeFortsett »
Wages is sought to be garnished, and, as the act of May 11, 1905, does not in express terms provide for Such a hearing, presumably such hearing is to take place under the provisions of the general garnishment act, and if the justice or court finds there was due such officer or employé, at the time of the service of summons, any amount, as salary or wages, under the provisions of section 6 of said act, the justice or the court may direct the officer garnished to deposit the amount found due with the justice or in court, and if the officer garnished fails to deposit the money found due as ordered, he may be punished by the justice or court as for a contempt of court. We think it too clear for argument that the Legislature Was powerless to authorize a justice Or a court of record to render a judgment against an officer of a city in favor of a person to whom he was not personally indebted, for the use of another, in an attachment or garnishment proceeding, or to require the city treasurer to deposit in Court the amount found due said officer or employé as salary or wages by a contempt proceeding against the Officer refusing to make such deposit. To hold otherWise would be to hold the Legislature might authorize a justice or a court of record, by its judgment, to take from one man his property and give it to another, Which in this case would clearly be to deprive the city treasurer of his property without due process of law. The trial court did not, therefore, we think, err in quashing the Writ and dismissing the garnishment proceeding as against the city treasurer. It is contended upon behalf of the city that the effect of the act of May 11, 1905, is to amend the general statutes upon the subjects of attachment and garnishment, in violation of section 13, art. 4, of the Constitution of 1870, which provides that “no law shall be revived or amended by reference to its title only, but the law revived, or the Section amended, shall be inserted at length in the new act.” It will be observed from its reading that the title of said act purports to be the title of a complete act upon the subject with which the title deals, and, if such is the effect of the act, it is not in conflict with said constitutional inhibition, although it may have the effect to modify or repeal, by implication, existing laws. If, however, the effect of the new act is to amend the general statutes of the state upon the subjects of attachment and garnishment by intermingling the provisions of the new act with the provisions of those statutes or by adding to those Statutes new provisions, so as to create out of the general statutes heretofore in force upon the subject of attachment and garnishment and the new act a new law for the attachment and garnishment of the salaries and wages of the officers and employés of
certain municipal corporations named in the title of the act, then the new act is clearly amendatory of the old Statutes upon those subjects and in violation of said constitutional provision. In People V. Knopf, 183 Ill. 410, 56 N. E. 155, in considering the act of 1898, “for the assessment of property and providing the means therefor, and to repeal a certain act therein named,” where the same question was raised as is here presented for decision, the court, on page 415 of 183 Ill., page 157 of 56 N. E., said: “The title of the act of 1898, which has been already given, does not indiCate that the act is amendatory of any existing law, nor does the act itself profess, in terms, to amend another law by reference to its title, Or otherwise. So far as the title goes, the act purports to be a complete law in itself and to make provision for the assessment of property throughout the state and to provide the Imeans therefor. If it can be held to be such a law, Constituting a complete and entire act of legislation on the subject which it purports to deal with, it will be deemed good and not Subject to the constitutional prohibition, notWithstanding it may repeal by implication, or modify, the provisions of prior existing laws. On the other hand, if the act is merely an attempt to amend the old law for the assessment of property by intermingling new and different provisions with the old ones or by adding new provisions, so as to create out of the existing laws and this act together an act for the assessment of property, then the act is clearly amendatory of the old law, and the requirement of the Constitution is that the law SO amended must be inserted at length in the new act. The character of the act in this respect must be determined, not by the title alone nor the question whether the act professes to be an amendment of existing laws, but by an examination and comparison of its provisions with prior laws which are left in force.” In the act under COnSideration the attachlment and garnishment of the Salaries and wages of officers and employés of certain municipal corporations are the subjects dealt with, and, while the title of the act purports to be the title of a complete act, it appears from the body of the act that it is not a complete act within itself, but that the act is by itself, and when considered alone, wholly ineffective and inoperative, and that its provisions cannot be made effective and operative except by ingrafting the new act upon the attachment and garnishment acts heretofore in force in this State. In the new act no provision is made for reducing the garnishing Creditor's claim to judgment, or for exhausting his remedy against his debtor's tangible property by issuing an execution and having it returned no property found before a garishment proceeding is commenced, nor is there any method pointed out in the new act for Setting the garnishment proceeding in operation by the filing of an affidavit that the garnishing creditor has reduced his claim to judgment, that the personal property of his debtor has been exhausted, and that the municipality or officer sought to be garnished is indebted to the officer or employé against whom he has judgment. All the provisions regulating these matters must be found in the general Statutes upon the Subject of garnishment, and in the new act the grounds for attachment are not Stated, and the affidavit and bond, which are prerequisites to the issuing of a writ of attachment, are not found, but these matters must also be sought in the general statutes of the State regulating the issuing of Writs of attachment. It thus appears that the act of 1905 is not a complete act within itself, and that it amounts to nothing more than an attempt to change the existing statutes of the State upon the Subject of attachment and garnishment, SO as to make them broad enough to include Within their terms the attachment and garnishment of the salaries and Wages of the Officers and employés of the municipal corporations named in the new act, by intermingling the provisions of the new act With those of the old statutes upon those subjects, the effect of which clearly is to bring the new statute within the view expressed in the Knopf Case, and to render it unconstitutional and Void, as amounting to amendments of the general statutes upon the subjects of attachment and garnishment heretofore in force in this State. It is also urged that the act of May 11, 1905, is special legislation and unconstitutional, in this, that it places certain burdens upon the municipal corporations named in the title of the act from which other municipal corporations of the same class are exempted, and discriminates against the officers and employés of the municipalities named in the title of the act by making the Salaries and wages of Such Officers and employés liable to attachment or garnishment, While the OfficerS and employéS of other municipal Corporations of the same class are not liable to attachment and garnishment proceedings. It is apparent from the terms of the act that it does not apply to the officers and employés of all municipal corporations created under the laws of this State, and unless SOme Valid ground can be pointed out justifying the omission from the act of the officers and employés of municipal corporations of the same class with those included Within the act, which We think cannot be done, the contention that the act is special legislation, and therefore unconstitutional, would seem to be well founded. Judge Cooley, in his work on Constitutional Limitations (6th Ed., p. 482), says: “The Statute Would not be COnstitutional Which would select particular individuals from a class or locality and subject them to peculiar rules Or impose upon them Obligations Or burdens from Which OtherS in the Same locality or class are exempt. Every one has a right to demand that he be governed by gen not be obeyed, where it is conceded on the trial that it is not a proper case for specific performance, and the bill, while showing a breach of the contract, does not clearly show that the complainant has suffered damage, there was no error in the court’s refusal, after reforming the lease, to retain the case for the assessment of damages. [Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 412–419.]
eral rules, and a special statute which withOut his consent Singles his case out as one to be regulated by a different law from that Which is applied in all similar cases would not be legitimate legislation, but would be Such an arbitary mandate as is not within the province of free government.” And, as Was pointed out by the learned judge who heard the case below : “A man employed by the city of Chicago to dig in the earth with a Spade for the construction of a great intercepting Sewer flowing into the drainage canal and Constituting a component part of one general scheme for the purification of Chicago's Water Supply Would under this act be liable to garnishment, While his brother, doing exactly Similar Work for the drainage commission, deSigned for the accomplishment of the same general purpose and paid for by the same body of taxpayers, Would be exempt from Such process.” In Mathews V. People, 202 Ill. 389, 67 N. E. 28, 95 Am. St. Rep. 241, 63 L. R. A. 73, it was held that section 8 of the free employment agency act of 1899 (Laws 1899, p. 270), Which prohibited Superintendents of the agenCies established under that act from furnishing Workmen or lists of workmen to employerS Whose men are On a Strike Or are locked out, was repugnant to the Constitution as speCial legislation. On page 403 of 202 Ill., page 33 of 67 N. E. (95 Am. St. Rep. 241, 63 L. R. A. 73), the Court Said: “The Legislature has no power to deny to the employer whose men are Out upon a Strike Or are locked out the right to obtain workmen from these free employment agencies and at the same time to grant Such right to other employers not similarly Situated.” The act in question grants a remedy to the Creditors of the officers and employés of counties, cities, Villages, and school districts, and denies a similar remedy to the creditors of the Officers and employés of other similar municipal Corporations in the state; or, to State the matter in another way, it makes the Salaries and wages of the officers and employés Of Counties, cities, Villages, and School districts liable to attachment and garnishment, and grants immunity from attachment and garnishment to the officers and employés of all Other municipal Corporations in the state. This clearly is special legislation, and under the authority of the Mathews Case, and similar Cases, is unconstitutionl and Void. The judgment Of the circuit Court Will be affirmed. Judgment affirmed.
2. COSTS-REFORMATION OF LEASE—DEMAND. In a suit to reform a lease and for other relief, where the bill did not allege that any request Was made that the lease be corrected, and the other relief was denied, complainants were properly required to pay the costs, though the court reformed the lease.
Appeal from Appellate Court, First District.
Action by William P. Henneberry against Charles W. Braithwaite and others. From a judgment of the Appellate Court affirming, except as to costs, the decree of the Superior Court, complainant appeals. Affirmed.
James J. Barbour and Furber & Wakelee, for appellant. Sears, Meagher & Whitney (James F. counsel), for appellees.
CARTWRIGHT, J. The superior court of Cook county overruled the demurrer of appellee to the amended bill of appellants asking the court to correct a mistake in matter of description in a lease, which included a contract, executed by said parties, and to enforce specific performance of the contract as reformed; and, in the event that appellee Should refuse to obey the Order of the court for the performance of the contract, appellants should be awarded compensation for their outlays and such damages as they had suffered and would thereafter suffer, and that a mortgage given to secure the performance of the lease on their part should be canceled. Appellee elected to stand by his de murrer, and then in open court released the mortgage, whereupon the court reformed the lease and awarded costs to appellants, but refused any further relief. Appellants obtained the relief they asked for so far as the reformation of the lease was concerned, and appellee released the mortgage, but appel lants excepted to the refusal of the court to grant further relief and appealed to the Appellate Court for the First District. Errors and cross-errors were assigned and the Appellate Court affirmed the decree except as to costs, but required appellants to pay the costs in the superior court as well as the Appellate Court. From the judgment of the Appellate Court appellants have brought the case by a further appeal to this court.
The factS Stated in the amended bill and admitted by the demurrer are substantially as follows: The defendant, being the owner of two lots in Chicago, leased them on July 28, 1903, to complainants for 20 years, from November 1, 1903 to November 1, 1923. The property leased Was in range 14, but by mis
Meagher and Jesse J. Ricks, of
take was described as being in range 13. The defendant was to remove the old structure on the property and to erect thereon a modern sprinkled mill building covering the entire land, Six Stories and a basement in height, to cost not exceeding $60,000 and to fulfill certain requirements. The plans and specifications were to be submitted to the Complainants and changed or altered as they might require, provided the cost of the building and equipment should not exceed $60,000. The rent was to be $608.34 per month, and if the building was not completed until after November 1, 1903, the rent was to be rebated until it should be completed. The defendant agreed to proceed promptly to erect the building and to complete it on or about December 15, 1903, provided there was no interference or delay on account of strikes or the act of God. Five hundred dollars was to be paid, and was paid, at the execution of the lease,
and the complainant Charles W. Braithwaite
and his Wife executed a mortgage to Secure a performance of the covenants of the lease for the first seven years of the term. The de. fendant had plans drawn for the building, Which were approved by the complainants, but the defendant represented that the build. ing would cost more than $60,000. Complain. ants consulted another architect, who agreed to furnish plans and specifications and Superintend the erection of the building at a cost not to exceed $60,000. Bids were obtained and opened on or about November 11, 1903, offering to construct the building for $54,666. Defendant made no move toward entering into a contract for the building, but did not reject the bids and requested the architect to hold them open until he was ready to proceed. Complainants frequently demanded that defendant proceed, but upon one pretext or another he postponed or delayed action. December 15, 1903, passed and no move Was made toward the construction of the building, and the delay was not caused by strikes or the act of God. The bill Was filed December 24, 1903, and alleged that one of the complainants desired to use a part of the building, and its then existing lease expired May 1, 1904; that the defendant knew that it was the purpose of the complainants to lease a large portion of the premises; that the rent season in Chicago begins on May 1st, and unless the building should be completed prior to May 1, 1904, the complainants would be greatly damaged and inconvenienced; that the performance of the covenants and agreements of defendant Would result in great gains and profits to the complainants, which, according to the rental value, would amount for the period of twenty years to $100,000, and that the failure to erect the building was wholly due to neglect, delay and inaction Of the defendant. Complainants paid $500 When the lease Was executed. Braith Waite executed the mortgage, and complainants Obtained a guaranty policy on the mortgaged premises and paid therefor $150. The defendant never delivered possession of the premises to complainants. The Superior court overruled the demurrer to the amended bill and reformed the lease by correcting the error as to the range, and it is now conceded that the contract was not of such a nature that the court could grant the prayer for specific performance of it, but it is contended that the court erred in not retaining the cause for the assessment of damages to the complainants. The complaint as to the Appellate Court is that upon the affirmance of the decree the court required the complainants to pay the costs in the superior COUlrt. It is the rule that when a court of equity acquires jurisdiction over a cause requiring any equitable relief, the court may retain the cause for all purposes, and establish legal rights and provide legal remedies which would otherwise be beyond the scope of its authority. In Such a case the court Will not Ordinarily limit itself to the execution of partial justice and turn the parties over to a court of law, but will go on and dispose of all the matter at issue so as to do adequate and complete justice between all the parties. Whether the court will so proceed to a final determination of legal rights is a matter for the exercise of sound discertion, which is subject to review, and which will ordinarily be exercised by retaining the cause and granting any necessary legal remedies. In this case we think the Superior court did not err in refusing to retain the cause for the assessment of damages, because of the nature Of the bill and the want of necessary averments upon which to base such action. The prayer of the bill was that the court should enforce the specific performance of the contract as reformed, and the only prayer for damages was that if the defendant should decline or refuse to obey the order of the court, the complainants might be awarded compensation and damages and have the mortgage released, and have a lien on the premises for their outlays and damages. The bill was drawn upon the theory that the contract was still in force, and it prayed for a specific performance of the contract. It alleged that the defendant had not, complied with complainants’ request to proceed, but had on one pretext or another postponed action; that the failure to erect the building was wholly due to such neglect and inaction, and that the defendant had requested the architect to hold the bids open until he should be ready to proceed with the erection of the building. It was not alleged that the defendant had rescinded the contract or abandoned it or refused to perform it, and the complainants did not ask the court for a rescission and an award of damages, but asked for specific performance. There is no aVerment under which damages could be recovered for a breach of the entire contract, unless there should be a refusal to comply
with the decree for specific performance. There was a general prayer for relief, and if a bill contains avernments of specific facts Which authorize the granting of certain relief it may be granted under a general prayer. In this case the building was to have been completed by December 15, 1903, and the bill was filed nine days afterward. It alleged that the rent Was to be rebated until the completion of the building; that the rent Season Commenced on May 1st; that if the building should not be erected by May 1, 1904, complainants would be greatly damaged; that the lease of one of the complainants expired at that time, and that said complainant deSired to remove to new quarters On that date. The Only covenant that had been broken was the Covenant to complete the building by December 15, 1903, and the most that the court could have done would have been to have allowed damages for the breach of that covenant if any had been averred. It would have been just as consistent With the averments of the bill to Say that complainants Suffered no damage as to Say that they suffered any. There Was no averment that defendant ever refused to erect the building, but counsel say that when he released the mortgage in open Court that act showed that he did not intend to perform the contract and authorized the court to assess damages. We can only regard that act as Showing a Willingness of the defendant to release the mortgage or that he did not care to retain it, and We do not see how the act could affect or change the issues. We do not see upon what theory the court could have assessed damagos so as to do adequate and complete justice between the parties, and think the court did right in refusing to retain the cause for that purpose and leaving the parties to their legal remedies. Appellee has assigned a cross-error that the superior court erred in overruling his demurrer and reforming the lease. The bill Contained no averment that the defendant, Who Was competent to Correct the mistake, had been requested or had an opportunity to do so, and no excuse was offered for the failure to make such request. The bill alleged
that the mistake was mutual and the parties
were ignorant of it, and it is insisted that in a case where no equitable relief is demanded except the correction of a mistake, there must first be a demand and refusal to Correct it, Or the bill must ShoW facts from which it appears that a demand would be useless or impossible. Counsel, however, say that they do not Want the CrOSS-error passed upon unleSS We Should hold that the Case Was One Where the court Ought to have assessed damages. As we have decided that the court did not err in that particular we do not consider or decide the question raised by the cross-error. As to the costs, we are of the opinion that regardless of the question Whether one party to a mutual mistake may, upon discovering it, resort to a court of equity and subject the other party to the ex
2. MUNICIPAL CORPORATIONS — LOCAL IM
PROVEMENTS—ISSUANCE OF BONDS—APPROV
AL OF IMPROVEMENT BY COURT.
Local Improvement Act, § 83 (Hurd's Rev.
St. 1903, c. 24), authorizes the board of local improvements to determine whether an improvement has been constructed substantially in accordance with the ordinance, and provides that if the board decides that it has, and accepts the improvement, such acceptance is conclusive in the proceeding to make the assessment, etc. Section 84, as amended in 1903 (Hurd's Rev. St. 1903, c. 24), requires boards of local improvement after the completion and acceptance of any work to file a certificate in the court where the assessment was confirmed, stating whether the improvement conformed substantially to the requirements of the original ordinance and to make an application to the court to determine whether or not the facts stated in the certificate are true, whereupon it becomes the duty of the court to give notice of a time and place for hearing upon the application; and, in case it finds that the improvement was constructed in substantial accordance with the ordinance, to approve the acceptance by the board, or, in case it finds otherwise, to procure the completion of the improvement in substantial accordance with the ordinance. II cla, that a city has no right to issue improvement bonds in payment for a local improvement until the board of local improvements has filed the certificate provided for by the statute and the court has entered an order that the improvement conforms in substance to the improvement ordiIlance. 3. APPEAL – CONSTITUTIONAL QUESTIONS –
WAIVER BY APPEAL TO APPELLATE COURT.
Where a case comes to the Supreme Court
by appeal from the Appellate Court which has no power to consider constitutional questions, the right to raise a constitutional question is Waived.
Appeal from Appellate Court, Third District.
Petition by Maurice E. Case against the city of Sullivan and others. From a judgment of the Appellate Court affirming a judgment for defendants, plaintiff appeals. Affirmed.
Jack, Irwin, Jack & Danforth, for appel
lant. John E. Jennings and F. M. Harbough, for appelleeS.
HAND, J. This was a petition filed in the circuit court of Moultrie county by the appellant to coerce the city of Sullivan, its mayor and city clerk, to issue to him improvement bonds under the local improvement act of 1897, for the Sum of $36,343.77. in payment of the contract price for improving a portion of Harrison and other Streets in said city by curbing and paving the Same, which improvement was put in by the appellant in the year 1904 under a contract with the board of local improvements of Said city, made in the month of October of that year by virtue of an odrinance of said city bearing date July 18, 1904. The appellees demurred to the petition upon the ground that the assessment for said improvement was divided into installments, and the petition failed to show a finding of the court in which Said assessment had been confirmed, that Said improvement as completed conforms Substantially to the requirements of the original ordinance providing for the construction of the improvement, as required by Section 84 of the local improvement act, as amended May 14, 1903 (Hurd's Rev. St. 1903, c. 24). The court sustained the demurrer, and, the appellant having elected to stand by his petition, dismissed the petition and rendered judgment against the appellant for costs, which judgment, upon appeal, was affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this COurt.
The petition averred that the improvement had been completed in accordance with the terms of the improvement ordinance and to the Satisfaction Of the board Of local improvements of said city, and that the improvement had been accepted by said board of local improvements. This brought the construction and acceptance of the improvement Within the terms Of Section 83 of the local improvement act of 1897. It, however, failed to ShOW that a certificate had been filed by the board of local improvements in the Court in Which the aSSeSSlment had been confirmed, within 30 days after the final completion and acceptance of the work, or at any other time, Stating Said improvement, as completed, conformed substantially to the requirements of the original Ordinance for the construction of the improvement, and applying to the court to consider and determine the truth Of the factS Stated in Said certificate, or that there had been a hearing upon said certificate or a finding by said court that the facts Stated in Said certificate Were true and that Said improvement had been completed in substantial conformity to the requirements of the original Ordinance. In Other Words, the petition failed to show that the requirements of Section 84 of the local improvement act, as amended in 1903, had been complied with at the time the petition for mandamus WaS filed.
The sole question, therefore, presented for