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wages is sought to be garnished, and, as certain municipal corporations named in the the act of May 11, 1905, does not in express title of the act, then the new act is clearly terms provide for such a hearing, presum- amendatory of the old statutes upon those ably such hearing is to take place under subjects and in violation of said constituthe provisions of the general garnishment tional provision. act, and if the justice or court finds there In People v. Knopf, 183 Ill. 410, 56 N. E. was due such officer or employé, at the time 155, in considering the act of 1898, "for the of the service of summons, any amount, as assessment of property and providing the salary or wages, under the provisions of means therefor, and to repeal a certain act section 6 of said act, the justice or the therein named,” where the same question was court may direct the officer garnished to raised as is here presented for decision, the deposit the amount found due with the court, on page 415 of 183 Ill., page 157 of 56 justice or in court, and if the officer gar N. E., said: "The title of the act of 1898, nished fails to deposit the money found due which has been already given, does not indias ordered, he may be punished by the jus cate that the act is amendatory of any existing tice or court as for a contempt of court. law, nor does the act itself profess, in terms, We think it too clear for argument that the to amend another law by reference to its title, Legislature was powerless to authorize a or otherwise. So far as the title goes, the justice or a court of record to render a act purports to be a complete law in itself and judgment against an officer of a city in to make provision for the assessment of propfavor of a person to whom he was not per erty throughout the state and to provide the sonally indebted, for the use of another, in means therefor. If it can be held to be such an attachment or garnishment proceeding, a law, constituting a complete and entire act or to require the city treasurer to deposit of legislation on the subject which it purports in court the amount found due said officer to deal with, it will be deemed good and not or employé as salary or wages by a con subject to the constitutional prohibition, nottempt proceeding against the officer re withstanding it may repeal by implication, or fusing to make such deposit. To hold other modify, the provisions of prior existing laws. wise would be to hold the Legislature might On the other hand, if the act is merely an atauthorize a justice or a court of record, by tempt to amend the old law for the assessits judgment, to take from one man his ment of property by intermingling new and property and give it to another, which in different provisions with the old ones or by this case would clearly be to deprive the adding new provisions, so as to create out of city treasurer of his property without due the existing laws and this act together an process of law. The trial court did not, act for the assessment of property, then therefore, we think, err in quashing the the act is clearly amendatory of the old law, writ and dismissing the garnishment pro and the requirement of the Constitution is ceeding as against the city treasurer.

that the law so amended must be inserted at It is contended upon behalf of the city length in the new act.

length in the new act. The character of the that the effect of the act of May 11, 1905, act in this respect must be determined, not by is to amend the general statutes upon the the title alone nor the question whether the subjects of attachment and garnishment, in act professes to be an amendment of existing violation of section 13, art. 4, of the Con laws, but by an examination and comparison stitution of 1870, which provides that "no of its provisions with prior laws which are law shall be revived or amended by refer left in force." ence to its title only, but the law revived, In the act under consideration the attachor the section amended, shall be inserted

ment and garnishment of the salaries and at length in the new act.” It will be ob wages of officers and employés of certain served from its reading that the title of municipal corporations are the subjects dealt said act purports to be the title of a com with, and, while the title of the act purports plete act upon the subject with which the

to be the title of a complete act, it appears title deals, and, if such is the effect of the

from the body of the act that it is not a act, it is not in conflict with said constitu

complete act within itself, but that the act is tional inhibition, although it may have the by itself, and when considered alone, wholly effect to modify or repeal, by implication, ineffective and inoperative, and that its proexisting laws. If, however, the effect of visions cannot be made effective and operathe new act is to amend the general statutes tive except by ingrafting the new act upon of the state upon the subjects of attachment

the attachment and garnishment acts heretoand garnishment by intermingling the pro fore in force in this state. In the new act no visions of the new act with the provisions provision is made for reducing the garnishing of those statutes or by adding to those creditor's claim to judgment, or for exhauststatutes new provisions, so as to create out

ing his remedy against his debtor's tangible of the general statutes heretofore in force

property by issuing an execution and having upon the subject of attachment and garnish it returned no property found before a garmient and the new act a new law for the ishment proceeding is commenced, nor is there attachment and garnishment of the salaries any method pointed out in the new act for setand wages of the officers and employés ou ting the garnishment proceeding in operation

78 N.L.-3

by the filing of an affidavit that the garnish eral rules, and a special statute which withing creditor has reduced his claim to judg out his consent singles his case out as one to ment, that the personal property of his debtor be regulated by a different law from that has been exhausted, and that the municipality which is applied in all similar cases would or officer sought to be garnished is indebted to not be legitimate legislation, but would be the officer or employé against whom he has such an arbitary mandate as is not within the judgment. All the provisions regulating province of free government." And, as was these matters must be found in the general pointed out by the learned judge who heard statutes upon the subject of garnishment, and the case below: "A man employed by the in the new act the grounds for attachment are city of Chicago to dig in the earth with a not stated, and the affidavit and bond, which spade for the construction of a great interare prerequisites to the issuing of a writ of cepting sewer flowing into the drainage canal attachment, are not found, but these matters and constituting a component part of one genmust also be sought in the general statutes of eral scheme for the purification of Chicago's the state regulating the issuing of writs of water supply would under this act be liable to attachment. It thus appears that the act garnishment, while his brother, doing exactly of 1905 is not a complete act within itself, and similar work for the drainage commission, dethat it amounts to nothing more than an at signed for the accomplishment of the same tempt to change the existing statutes of the general purpose and paid for by the same state upon the subject of attachment and body of taxpayers, would be exempt from garnishment, so as to make them broad enough such process." to include within their terms the attachment In Mathews v. People, 202 Ill. 389, 67 N. and garnishment of the salaries and wages E. 28, 95 Am. St. Rep. 241, 63 L. R. A. 73, it of the officers and employés of the municipal was held that section 8 of the free employcorporations named in the new act, by in ment agency act of 1899 (Laws 1899, p. 270), termingling the provisions of the new act which prohibited superintendents of the agenwith those of the old statutes upon those sub cies established under that act from furnishjects, the effect of which clearly is to bring ing workmen or lists of workmen to employthe new statute within the view expressed in ers whose men are on a strike or are locked the Knopf Case, and to render it unconstitu out, was repugnant to the Constitution as spetional and void, as amounting to amend cial legislation. On page 403 of 202 Ill., page ments of the general statutes upon the sub 33 of 67 N. E. (95 Am. St. Rep. 241, 63 L. R. jects of attachment and garnishment hereto A. 73), the court said: “The Legislature has fore in force in this state.

no power to deny to the employer whose men It is also urged that the act of May 11, are out upon a strike or are locked out the 1905, is special legislation and unconstitution right to obtain workmen from these free emal, in this, that it places certain burdens upon ployment agencies and at the same time to the municipal corporations named in the title grant such right to other employers not simiof the act from which other municipal corpor larly situated." ations of the same class are exempted, and The act in question grants a remedy to the discriminates against the officers and employés creditors of the officers and employés of counof the municipalities named in the title of the ties, cities, villages, and school districts, and act by making the salaries and wages of such denies a similar remedy to the creditors of officers and employés liable to attachment or the officers and employés of other similar garnishment, while the officers and employés municipal corporations in the state; or, to of other municipal corporations of the same state the matter in another way, it makes the class are not liable to attachment and gar salaries and wages of the officers and employés nishment proceedings. It is apparent from of counties, cities, villages, and school disthe terms of the act that it does not apply tricts liable to attachment and garnishment, to the officers and employés of all municipal and grants immunity from attachment and .corporations created under the laws of this garnishment to the officers and employés of state, and unless some valid ground can be all other municipal corporations in the state. pointed out justifying the omission from the This clearly is special legislation, and under act of the officers and employés of municipal the authority of the Mathews Case, and simicorporations of the same class with those lar cases, is unconstitutionl and void. included within the act, which we think can The judgment of the circuit court will be 2ot be done, the contention that the act is affirmed. special legislation, and therefore unconstitu Judgment affirmed. tional, would seem to be well founded. Judge Cooley, in his work on Constitutional

(222 Ill. 50) Limitations (6th Ed., p. 482), says: “The statute would not be constitutional which BRAITHWAITE et al. V. HENNEBERRY.

а class or locality and subject them to peculiar 1. SPECIFIC PERFORMANCE-DAMAGES AS ALrules or impose upon them obligations or TERNATIVE RELIEF. burdens from which others in the same local

In an action for reformation of a lease

and contract and for specific performance of the ity or class are exempt. Everyone has a

contract as reformed, and for damages in case right to demand that he be governed by gen the order of the court for performance should

not be obeyed, where it is conceded on the trial take was described as being in range 13.
that it is not a proper case for specific per The defendant was to remove the old struct-
formance, and the bill, while showing a breach
of the contract, does not clearly show that the

ure on the property and to erect thereon a complainant has suffered damage, there was no

modern sprinkled mill building covering the error in the court's refusal, after reforming the entire land, six stories and a basement in lease, to retain the case for the assessment of damages.

height, to cost not exceeding $60,000 and to [Ed. Note.-For cases in point, see vol. 44,

fulfill certain requirements. The plans and Cent. Dig. Specific Performance, SS 412-419.] specifications were to be submitted to the 2. COSTS-REFORMATION OF LEASE-DEMAND.

complainants and changed or altered as they In a suit to reform a lease and for other

might require, provided the cost of the buildrelief, where the bill did not allege that any ing and equipment should not exceed $60,000. request was made that the lease be corrected, and the other relief was denied, complainants

The rent was to be $608.34 per month, and if were properly required to pay the costs, though

the building was not completed until after the court reformed the lease.

November 1, 1903, the rent was to be rebated

until it should be completed. The defendant Appeal from Appellate Court, First Dis

agreed to proceed promptly to erect the buildtrict.

ing and to complete it on or about December Action by William P. Henneberry against

15, 1903, provided there was no interference Charles W. Braithwaite and others. From a

or delay on account of strikes or the act of judgment of the Appellate Court affirming,

God. Five hundred dollars was to be paid, except as to costs, the decree of the superior and was paid, at the execution of the lease, court, complainant appeals. Affirmed.

and the complainant Charles W. Braithwaite James J. Barbour and Furber & Wakelee, and his wife executed a mortgage to secure for appellant. Sears, Meagher & Whitney

a performance of the covenants of the lease (James F. Meagher and Jesse J. Ricks, of for the first seven years of the term. The de. counsel), for appellees.

fendant had plans drawn for the building,

which were approved by the complainants, CARTWRIGHT, J. The superior court of

but the defendant represented that the build Cook county overruled the demurrer of appel

ing would cost more than $60,000. Complain. lee to the amended bill of appellants asking

ants consulted another architect, who agreed the court to correct a mistake in matter of

to furnish plans and specifications and sudescription in a lease, which included a con

perintend the erection of the building at a

cost not to exceed $60,000. Bids were obtaintract, executed by said parties, and to enforce specific performance of the contract

ed and opened on or about November 11, 1903, as reformed; and, in the event that appellee

offering to construct the building for $54,666. should refuse to obey the order of the court

Defendant made no move toward entering infor the performance of the contract, appel

to a contract for the building, but did not relants should be awarded compensation for

ject the bids and requested the architect to their outlays and such damages as they had

hold them open until he was ready to prosuffered and would thereafter suffer, and

ceed. Complainants frequently demanded that a mortgage given to secure the perform

that defendant proceed, but upon one pretext ance of the lease on their part should be can

or another he postponed or delayed action. celed. Appellee elected to stand by his de

December 15, 1903, passed and no move was murrer, and then in open court released the

made toward the construction of the building, mortgage, whereupon the court reformed the and the delay was not caused by strikes or lease and awarded costs to appellants, but

the act of God. The bill was filed December refused any further relief. Appellants ob

24, 1903, and alleged that one of the complaintained the relief they asked for so far as the

ants desired to use a part of the building, reformation of the lease was concerned, and

and its then existing lease expired May 1, appellee released the mortgage, but appel

1904; that the defendant knew that it was lants excepted to the refusal of the court to the purpose of the complainants to lease a grant further relief and appealed to the Ap large portion of the premises; that the rent pellate Court for the First District. Errors season in Chicago begins on May 1st, and unand cross-errors were assigned and the Appel

less the building should be completed prior late Court affirmed the decree except as to

to May 1, 1904, the complainants would be costs, but required appellants to pay the costs greatly damaged and inconvenienced; that in the superior court as well as the Appel the performance of the covenants and agreelate Court. From the judgment of the Appel ments of defendant would result in great late Court appellants have brought the case gains and profits to the complainants, which, by a further appeal to this court.

according to the rental value, would amount The facts stated in the amended bill and for the period of twenty years to $100,000, admitted by the demurrer are substantially and that the failure to erect the building was as follows: The defendant, being the owner wholly due to neglect, delay and inaction of two lots in Chicago, leased them on July of the defendant. Complainants paid $500 28, 1903, to complainants for 20 years, from when the lease was executed. Braithwaite November 1, 1903 to November 1, 1923. The executed the mortgage, and complainants obproperty leased was in range 14, but by mis tained a guaranty policy on the mortgaged

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premises and paid therefor $150. The de with the decree for specific performance. fendant never delivered possession of the There was a general prayer for relief, and premises to complainants.

if a bill contains averments of specific facts The superior court overruled the demurrer which authorize the granting of certain relief to the amended bill and reformed the lease it may be granted under a general prayer. In by correcting the error as to the range, and this case the building was to have been comit is now conceded that the contract was not pleted by December 15, 1903, and the bill of such a nature that the court could grant was filed nine days afterward. It alleged the prayer for specific performance of it, but that the rent was to be rebated until the it is contended that the court erred in not re completion of the building; that the rent taining the cause for the assessment of dam season commenced on May 1st; that if the ages to the complainants. The complaint as building should not be erected by May 1, 1904, to the Appellate Court is that upon the affirm complainants would be greatly damaged; that ance of the decree the court required the com the lease of one of the complainants expired plainants to pay the costs in the superior at that time, and that said complainant decourt.

sired to remove to new quarters on that date. It is the rule that when a court of equity The only covenant that had been broken was acquires jurisdiction over a cause requiring the covenant to complete the building by any equitable relief, the court may retain December 15, 1903, and the most that the the cause for all purposes, and establish legal court could have done would have been to have rights and provide legal remedies which allowed damages for the breach of that covewould otherwise be beyond the scope of its nant if any had been averred. It would have authority. In such a case the court will not been just as consistent with the averments of ordinarily limit itself to the execution of the bill to say that complainants suffered no partial justice and turn the parties over to damage as to say that they suffered any. a court of law, but will go on and dispose of There was no averment that defendant ever all the matter at issue so as to do adequate refused to erect the building, but counsel say and complete justice between all the parties.

that when he released the mortgage in open Whether the court will so proceed to a final court that act showed that he did not intend determination of legal rights is a matter for to perform the contract and authorized the the exercise of sound discertion, which is court to assess damages. We can only regard subject to review, and which will ordinarily that act as showing a willingness of the debe exercised by retaining the cause and grant- fendant to release the mortgage or that he did ing any necessary legal remedies. In this not care to retain it, and we do not see how case we think the superior court did not err the act could affect or change the issues. We in refusing to retain the cause for the do not see upon what theory the court could assessment of damages, because of the nature have assessed damages so as to do adequate of the bill and the want of necessary aver and complete justice between the parties, and ments upon which to base such action. The think the court did right in refusing to retain prayer of the bill was that the court should the cause for that purpose and leaving the enforce the specific performance of the con parties to their legal remedies. tract as reformed, and the only prayer for Appellee has assigned a cross-error that damages was that if the defendant should the superior court erred in overruling his decline or refuse to obey the order of the demurrer and reforming the lease. The bill court, the complainants might be awarded contained no averment that the defendant, compensation and damages and have the who was competent to correct the mistake, mortgage released, and have a lien on the had been requested or had an opportunity to premises for their outlays and damages. The do so, and no excuse was offered for the failbill was drawn upon the theory that the con ure to make such request. The bill alleged tract was still in force, and it prayed for that the mistake was mutual and the parties a specific performance of the contract. It were ignorant of it, and it is insisted that in alleged that the defendant had not, complied a case where no equitable relief is demanded with complainants' request to proceed, but except the correction of a mistake, there must had on one pretext or another postponed first be a demand and refusal to correct it, action; that the failure to erect the building or the bill must show facts from which it was wholly due to such neglect and inaction, appears that a demand would be useless or and that the defendant had requested the impossible. Counsel, however, say that they architect to hold the bids open until he should do not want the cross-error passed upon unbe ready to proceed with the erection of the less we should hold that the case was one building. It was not alleged that the de where the court ought to have assessed fendant had rescinded the contract or aban damages. As we have decided that the court doned it or refused to perform it, and the did not err in that particular we do not concomplainants did not ask the court for a sider or decide the question raised by the rescission and an award of damages, but cross-error. As to the costs, we are of the asked for specific performance. There is no opinion that regardless of the question averment under which damages could be re whether one party to a mutual mistake may, covered for a breach of the entire contract, upon discovering it, resort to a court of unless there should be a refusal to comply equity and subject the other party to the ex

pense and inconvenience of a suit without advising him of the mistake or giving him an opportunity to correct it, the Appellate Court did not err in requiring complainants to pay all the costs. So far as appears, the bill was filed without any necessity against a party to a mutual mistake who may have been entirely willing to correct it.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(222 Ill. 56)

CASE V. CITY OF SULLIVAN et al. (Supreme Court of Illinois. June 14, 1906.) 1. MANDAMUS-SHOWING NECESSARY TO OBTAIN WRIT.

Before a party will be coerced by a writ of mandamus to perform an act, it must clearly appear from the petition that it is his legal duty to perform such act.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, SS 1, 37.] 2. MUNICIPAL CORPORATIONS LOCAL IM


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. Il eld, 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 ordinance. 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 hus no power to consider constitutional questions, the right to raise a constitutional question is waived.

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 assessment 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 certifi. cate, 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

Appeal from Appellate Court, Third District.

Petition by Maurice E. Case against the city of Sullivan and others. From a judg . ment of the Appellate Court affirming a judgment for defendants, plaintiff appeals. Af. firmed.

Jack, Irwin, Jack & Danforth, for appellant. John E. Jennings and F. M. Harbough, for appellees.

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