ment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace."

It is not proposed here to take or appropriate the land in question for the erection of wharves, docks, or piers, the construction of which may facilitate or aid the navigation of the waters of the lake, but the sole purpose seems to be to appropriate the submerged land for the private use of the railroad company. It is unreasonable to believe that the legislature, in the enactment of section 3 of the charter of the railroad company, ever intended to place in the hands of the company unlimited power to go on, from time to time, and appropriate to its own use parcel after parcel of the lands covered by the waters of Lake Michigan; and, if such unlimited power was contemplated, it transcended its authority. It, in effect, undertook to part with governmental powers, which it could not do.

We are, however, referred to three cases in support of the position of the railroad company: Railroad Co. v. Rucker, 14 Ill. 353; Illinois v. Illinois Cent. R. Co., 33 Fed. 730; and Illinois Cent. R. Co. v. Illinois, 146 Ill. 387, 13 Sup. Ct. 110. We do not regard the case first cited as one having a bearing on the question presented by this record. In that case, after the Illinois Central Railroad Company had located its line of road, with the consent of the city of Chicago, over the shore waters of Lake Michigan, the company applied to the county court of Cook county to appoint appraisers to assess damages to certain parties who owned land on the lake shore. The railroad having been located in front of the premises of said lake shore owners, and partly over the same, the company sought to condemn this property, but the county court refused the application. Upon petition for mandamus to this court a mandamus was awarded, and the court held: First, that the railroad company had the right, with the consent of the city, to locate its line of road over the shallow waters of Lake Michigan in the line indicated; second, that the right was not forfeited by the failure to locate prior to January 1, 1852; and, third, it was the duty of the county court to appoint appraisers. It thus appears that no question was raised or decided, as we understand the case, in regard to the right of the railroad company to go beyond the 200 feet granted and selected for right of way, and take lands covered by the waters of the lake for an engine house or for other railroad purposes named in the charter. As to the second case mentioned, that case was removed by writ of error to the supreme court of the United States; and the questions of law involved were decided in Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110. That case is also relied upon in the argument. There may be found expressions

in the opinion of the court which might seem to favor the view of appellant; but when the facts of that case are taken into consideration, and the entire opinion is examined, we do not think that the case lends support to the position of appellant in this case.

It is also set up in the bill that the rallroad company has the right, as a riparian owner, to fill in the lake, and erect its engine house on the new-made land. But this question has not been discussed in appellants' argument, and we must regard it as waived. Moreover, under the facts presented by this record, we are aware of no wellconsidered case which would sustain the proposed acts of appellant in filling in the lake, and erecting upon the newly-made land an engine house. The decree of the superior court will be affirmed. Decree affirmed.

1. In a suit against highway commissioners to determine whether a strip of ground was a public highway, the bill alleged that no highway had ever been established there, or that, if it had been, the public had lost its rights by complainant's adverse possession for more than 20 years. There was a decree dismissing the bill, and dissolving a preliminary injunction against the removal of complainant's fences, and complainant brought the case to the appellate court, assigning as errors: (1) The court erred in dissolving the injunction because the main allegations in the bill were not denied; and (2) there was nothing showing said road was ever opened or traveled south of said fence; and, as the allegations that said fence has been in that place for 25 years were not denied, the court erred in dismissing the bill. Held, that the assignments involved an issue as to the existence of a public highway, calling for a dismissal for want of jurisdiction, since a public highway is a freehold estate.

2. The supreme court can review the decision of the appellate court upon only such errors as may be properly assigned in that court.

Appeal from appellate court, Second district.

Bill by Mary Taylor against James L. Pierce and others. From an affirmance by the appellate court (71 Ill. App. 525) of a decree for defendants, complainant appeals. Reversed.

This is an appeal from the judgment of the appellate court for the Second district, affirming a decree entered in the cause in the circuit court of Iroquois county. The proceeding was in chancery. The bill alleged the appellant was the owner of the north 60 acres of the N. 1⁄2 of the N. W. 4 of section 18, township 27 N., range 11 W., of the third principal meridian, and that the appellees, who were commissioners of highways in and for Concord township, in said Iroquois county, claimed that a highway had been duly and legally established, extend

ing over and upon a certain strip of ground along the north side of the said tract of land, and that a certain fence belonging to the complainant was within the limits of said highway; that no highway had been established where such fence was located, or, if it had been, the public had lost all rights therein by adverse possession of the complainant for more than 20 years; that said commissioners had removed the fences from said portion of the said tract within the limits of the alleged highway; that appellant had replaced the fences, and the commissioners had removed them, whereupon appellant again placed them back upon the line from which they had been so removed; that two or more suits had been instituted between the parties growing out of the question; and that the said appellees, as commissioners, were threatening to again remove the fence, and to institute suits against the appellant for obstructing the alleged highway, etc. The prayer of the bill was that the court should hear and determine the contention whether the locus in quo was a public highway, and should restrain the commissioners from removing the fences, or instituting further suits against the appellant, until the rights of the public and of the appellant in the strip of land in question could be heard and determined by the court. A preliminary injunction was granted by the master. The decree of the circuit court was that the injunction should be dissolved and the bill dismissed. The appellant, by writ of error, brought the decree of the circuit court into the appellate court of the Second district for review. The appellate court affirmed the decree of the circuit court, and the appellant has brought the record into this court by appeal from the judgment of the said appellate court for further review.

Robert Doyle, for appellant. Kay & Kay, for appellees.

BOGGS, J. (after stating the facts). We are urged in the brief of counsel for appellant to reverse the judgment of the appellate court upon three grounds only, viz.: First, it did not appear from the record that a highway legally existed covering the said strip of ground; second, that if any highway had been legally established there it had been lost by nonuser and the adverse possession of the appellant; and, third, that the circuit court erroneously entered the decree dissolving the injunction, and without hearing the evidence of either party.

The first and second of these contentions involve the issue of the existence of a public highway. A public highway is a perpetual easement and a freehold estate. Chaplain v. Commissioners, 126 Ill. 264, 18 N. E. 765; Village of Crete v. Hewes, 168 Ill. 330, 48 N. E. 36. A freehold is involved where a freehold is so put in issue that a

decision of the case necessarily involved a decision of that issue. Sanford v. Kane, 127 Ill. 591, 20 N. E. 810.

The appellate court is lacking in jurisdiction and power to consider and determine a contention involving a freehold estate. We can, on appeal from a judgment rendered by the appellate court, only review the decision of that court upon errors over which it had jurisdiction to pass. Indiana Millers' Mut. Fire Ins. Co. v. People, 170 III. 474, 49 N. E. 364. If the appellant desired to have reviewed that part of the decree of the circuit court which involved a freehold estate, she should have brought the record directly from the circuit court to this court. In such cases, the court will consider and decide all assigned errors, as well those which involve a freehold as those which do not.

It was within the power and jurisdiction of the appellate court to decide the third contention, but it appears from the record that the subject-matter thereof was not assigned as for error in that court. The only assignments of error in that court were as follows: First, the court erred in dissolving said injunction, because the main allegations in said bill are not denied, but admitted, by said answer; second, there is nothing in said record showing said road was ever opened or traveled south of said fence, and, as the allegations that said fence has been in that place for 25 years are not denied, therefore the court erred in dismissing the bill. These assignments did not present to the appellate court the question whether the circuit court heard or should have heard the evidence of the parties. In Indiana Millers' Mut. Fire Ins. Co. v. People, supra, we said: "Clearly, this court can review the decision of the appellate court only upon errors there properly assigned and insisted upon." As the only errors assigned in the appellate court were such as involved the issue as to the existence of a freehold, that court should have dismissed the writ of error for want of jurisdiction. The appellate court not having jurisdiction of the errors assigned, its judgment must be reversed, and the cause remanded to that court, with direction to dismiss the writ of error for want of jurisdiction. Reversed and remanded, with directions.

published," etc., was insufficient to confer jurisdiction of a proceeding for judgment against such delinquent lands and lots, because unintelligible in failing to state what was published.

2. Under Revenue Act, § 186 (Rev. St. 1893, p. 1209), requiring a certificate, under oath, by the printer, publisher, or financial officer or agent of the newspaper publishing the delinquent list, a recital in such certificate, describing the person making it as the publisher of such newspaper, was insufficient, as such fact must affirmatively appear, and be sworn to.

3. Const. art. 6, § 18, provides for the election of a clerk of the county court, and article 10, 8, for the election of a county clerk; and Rev. St. 1893, p. 340, c. 25, § 2, provides that the county clerks of the several counties shall be clerks of the county courts of their respective counties. Revenue Act, § 186 (Rev. St. 1893, p. 1209), requires a copy of the newspaper containing the delinquent list, with the certificate under oath attached thereto, to be filed "as a part of the record of the court." Held, that such copy, bearing only the file mark of the "county clerk," was inadmissible in evidence, on an application for judgment, as such statutory direction was mandatory, and the two offices in question were separate and distinct, though filled by the same person.

4. A judgment in a proceeding for the collection of delinquent taxes, ordering "that judgment of sale be, and is hereby, entered against the property of said objectors in favor of the people of the state of Illinois, and it is further ordered that the property of said objector be sold as the law directs to satisfy the amount of said judgment," was invalid, in view of the requirements of Revenue Act, § 191 (Rev. St. 1893, p. 1210), providing that the court shali give judgment for such taxes as shall appear to be due against the tracts or lots of land for the sum annexed to each, and shall direct the clerk to make out and enter an order for the sale of such real property, substantially in the form therein prescribed.

5. Recitals in the record are not conclusive where the bill of exceptions shows a state of facts inconsistent therewith, as, in such case, the bill of exceptions must prevail.

Appeal from Cook county court; O. N. Carter, Judge.

Application, on the relation of D. H. Kochersperger, treasurer and ex officio collector of Cook county, for judgment of sale against certain delinquent lands and lots. From a judgment in favor of relator, A. B. McChesney appeals. Reversed.

F. W. Becker, for appellant. Charles S. Thornton, Corp. Counsel, and John A. May, for appellee.

CARTWRIGHT, J. On application by the county collector of Cook county for judgment against delinquent lands and lots, appellant entered a special appearance for the purpose of questioning the jurisdiction of the court, and filed objections challenging the sufficiency of the notice by publication, the certificate of such publication, the filing of the delinquent list and the collector's report. The same objections were made as each item of evidence to sustain the jurisdiction was offered, and they were overruled, after which the court overruled the objections filed, and entered judgment. The certificate of publication admitted in evidence is in the words and figures following:

William Penn Nixon, publisher of the InterOcean, do hereby certify that the foregoing list of lands and lots contained in the newspaper known as the Inter-Ocean, to which this certificate is attached, is a list of all the delinquent lands and lots upon which remains due and unpaid the taxes levied and assessed for the year 1896, etc., and also a list of the delinquent lands and lots upon which remains due and unpaid special assessments and special taxes levied and assessed by the following corporate authorities [describing them], with notices hereto attached, were published and advertised once in the Inter-Ocean, a newspaper printed and published in the county of Cook and state of Illinois; and the whole of said advertisement was contained in one edition of said newspaper, being a newspaper of general circulation throughout said county, and the date of the newspaper containing the same was the 18th day of June, A. D. 1897, etc. In witness whereof I have hereunto set my hand this 18th day of June, 1897. William Penn Nixon.

"State of Illinois, County of Cook-ss.: Subscribed and affirmed to before me this 18th day of June, A. D. 1897. Fred W. Uhl, Notary Public. [Seal.]"

There is

This certificate is unintelligible. no subject of the verbs "were published and advertised." The person making the certificate states what the list is, with notices thereto attached, but wholly fails to say what was published, and no presumption can be indulged in for the purpose of supplying the omission of the certificate. No other evidence of publication was offered. The certificate is also defective in failing to certify to the relation of the person making it to the newspaper. Section 186 of the revenue act requires a certificate under oath by the printer, publisher, or financial officer or agent of the newspaper publishing the list. Courts do not take judicial notice who are the publishers of newspapers; and no proof was offered, outside of the certificate, that William Penn Nixon was publisher of the Inter-Ocean. The statute means that the fact shall be sworn to, and the recital or description of the person making the certificate as publisher of the Inter-Ocean was no part of his declaration. Perjury could not be assigned upon the affidavit in that respect, as he does not certify to the fact. No presumption is to be indulged in, but the fact must affirmatively appear. Haywood v. Collins, 60 Ill. 328. In Steinbach v. Leese. 27 Cal. 295, an affidavit of publication, required to be made by the printer, his foreman or principal clerk, describes the person making it as principal clerk in like manner with the description here, and the court said: "That affiant is one of the three is itself a substantive fact, and must be proved as such before the court in which the action is pending can proceed to render judgment

ed to be given. In the affidavit now in question the affiant swears to nothing except to the matters set forth after the word 'deposes.' He names himself as principal clerk, but he does not swear that that was his position in fact." The certificate must be under oath, and all the requisite facts must be certified to, and the certificate was insufficient. Pentzel v. Squire, 161 III. 346, 43 N. E. 1064; Hill v. Hoover, 5 Wis. 354; Iverslie v. Spaulding, 32 Wis. 394; Miller v. Railroad Co., 58 Wis. 310, 17 N. W. 130.

In an order made before the hearing, requiring parties interested to file objections by a time fixed, the court recited that due notice as required by law had been given of the application for judgment. The bill of exceptions, on the contrary, shows that all the evidence upon which the court acted at the hearing and based its finding that notice had been given was this certificate, and the recital in the record in favor of its jurisdiction is not conclusive. Senichka v. Lowe, 74 Ill. 274; Hirth v. Lynch, 96 III. 409; Law v. Grommes, 158 Ill. 492, 41 N. E. 1080. The truth will be taken to be as stated in the bill of exceptions, which must prevail. Hirth v. Lynch, supra.

Said section 186 of the revenue act requires a copy of the newspaper, with the certificate under oath attached thereto, to be filed as a part of the records of the court. This direction for filing is mandatory, and an essential part of the necessary foundation for the judgment. It is essential to give the court jurisdiction. People v. Owners of Lands, 82 Ill. 408; Same v. Dragstran, 100 III. 286. The copy offered in evidence, and admitted against objection, bore the file mark: "Filed June 22, 1897. Philip Knopf, County Clerk." The constitution provides, in article 6, § 18, for the election of a clerk of the county court, and in article 10, § 8, for the election of a county clerk in connection with the county government, and the statute (Rev. St. 1893, p. 340), in chapter 25, § 2, provides that the county clerks of the several counties shall be clerks of the county courts of their respective counties. The offices are separate and distinct, although by the statute they are filled by the same person. In the different offices he has charge of two different and separate sets of records pertaining to different jurisdictions. The records in the office of the county clerk are not records of the county court, and filing a paper in that office does not make it a part of the records of that court. The file mark, as the certificate of the officer where the copy had been filed, was the legal evidence of the fact, and the objection was a specific one. Attention having been called to the fact, if the paper had been actually deposited with Philip Knopf as clerk of the county court, to be filed as part of the records of that court, his certificate of filing might have been amended; but this was not done. The objection should have been sustained.

Here, again, the record recites that a certificate of publication was filed with the clerk of the county court, and the record contained a copy of the supposed certificate so filed. The copy there appearing in the record is fatally defective. There is an omission, so that it contains no notice of the intended application for judgment, but only notice of the public sale, with no certificate of a publisher at all. It is not a certificate of publication, but, if it were, the bill of exceptions, as already stated, prevails.

Section 191 of the revenue act provides that the court shall give judgment for such taxes and special assessments as shall appear to be due, and it is to be a judgment against the tracts or lots of land for the sum annexed to each, and the court is to direct the clerk to make out and enter an order for the sale of such real property, substantially in the form given in that section. The judgment in this case is as follows: "And thereupon it is ordered that judgment of sale be, and is hereby, entered against the property of said objectors in favor of the people of the state of Illinois; and it is further ordered that the property of said objector be sold as the law directs, to satisfy the amount of said judgment." This is nothing more than an order of sale, which does not conform to the requirements of the statute. It is not a judgment, as required by the law to be entered. Gage v. People, 163 Ill. 39, 44 N. E. 819; McChesney v. Same, 171 Ill. 267, 49 N. E. 491. The judgment of the county court is reversed, and the cause is remanded. Reversed and remanded.

PEOPLE ex rel. MILLER v. LYMAN. (Court of Appeals of New York. June 24, 1898.) ASSIGNMENT OF LIQUOR TAX CERTIFICATE-INDICTMENT OF ASSIGNOR-REBATE.

1. When a liquor tax certificate has been assigned by the person to whom it is issued, as security for money advanced to him, the assignee being authorized to surrender and cancel the certificate and receive the money thereon, and the assignee afterwards applies to surrender such receipt for cancellation. and after such application, but within 30 days thereof. the person to whom it was issued is arrested or indicted for a violation of the liquor tax law, the commissioner of excise is prohibited by section 25 of the act (Laws 1896, c. 112, as amended by Laws 1897, c. 312) from paying the rebate of the tax to the assignee, and upon conviction of the person to whom the certificate was issued the rebate is forfeited.

2. The indictment, for a violation of the liquor tax law, of a member of a partnership to which a tax certificate has been issued, and by which the certificate has been surrendered, directly or through an assignee holding it for security, is an indictment of the person by whom the certificate was surrendered, within the meaning of section 25 of the law.

Parker, C. J., and Haight, J., dissenting.

Appeal from supreme court, appellate division, Fourth department.

Application by the people, on the relation

of Edwin G. S. Miller, for writ of mandamus against Henry L. Lyman, state commissioner of excise of the state of New York. From an order of the appellate division (50 N. Y. Supp. 497) reversing an order of the special term granting the writ, relator appeals. Affirmed.

Tracy C. Becker, for appellant. Royal R. Scott, for respondent.

GRAY, J. This appeal presents a question of construction of certain provisions of chapter 112 of the Laws of 1896, as amended by chapter 312 of the Laws of 1897; being acts passed by the legislature in relation to the traffic in liquors within this state. In May, 1897, the excise department of the state issued to the firm of Floss & Stauber a liquor tax certificate, authorizing them to sell in the city of Buffalo, ales, wines, beer, and spirituous liquors; a payment being then made by them of the sum of $500, as the amount of the tax assessed under the statute. Prior to their application for this certificate, and by an instrument dated April 30, 1897, which recited the fact of the application having been made, and that Miller, this relator, had advanced certain moneys to enable them to pay the tax required, they assigned to him their rights under the tax certificate, including the right to surrender and cancel the same, and to receive any moneys due upon such surrender and cancellation. On July 1, 1897, the relator made application, as the assignee and the attorney in fact of Floss & Stauber, to the deputy excise commissioner, to surrender the said tax certificate, and he received a receipt for the same as for cancellation, in which was stated the amount of the rebate payable upon such surrender. On July 19, 1897, Henry Stauber, one of the firm of Floss & Stauber, was indicted for a violation of the statute on July 11, 1897, and on July 21, 1897, was arrested, and, upon being arraigned on July 29th following, entered a plea of not guilty. The trial under the indictment had not been had at the commencement of this proceeding.

The proceeding was instituted, upon the refusal of the state commissioner of excise, respondent herein, to pay the excise tax rebate, to obtain a peremptory writ of mandamus requiring him to do so. The answer interposed by the commissioner set up the violation by Stauber of the liquor tax law, and his arrest therefor, and claimed that by reason thereof the petitioner and the said Floss & Stauber were not entitled to the orders for the payment of the excise tax rebate. At the special term of the supreme court the application for the writ was granted; but the order granting the same was reversed by the appellate division, and the writ was dismissed. It was held at the appellate division that the violation of the liquor tax law by one of the firm of Floss & Stauber within 30 days after the surrender

of the liquor tax certificate deprived the assignee thereof of the right to the rebate. The proposition thus decided presents the principal question for our review.

The statute, of which some of the provisions are thus brought up for consideration, created a general and comprehensive system for the regulation and taxation of the traffic in liquors within this state. It prescribed the conditions under which the same may be carried on, and provided for a supervision by a state commissioner of excise, who performs the duties pertaining to his office with the aid of special deputies and agents in the va rious counties. The provisions of the statute go much beyond those of former excise laws, in that they permit the holder of a liquor tax certificate to surrender the same for cancellation, and to be allowed a rebate upon the tax paid therefor, and they permit him to make a voluntary sale, assignment, or transfer thereof during the time for which it was granted. These new provisions lend a commercial value to the certificate which is issued, in addition to the privilege conferred of trafficking in liquors; for the holder not only is able to receive a rebate upon the amount of the tax paid, if he desires to discontinue the liquor business, but the certificate is valuable to him as a means of raising money by its sale or pledge. In the system, however, created by the statute, conditions are imposed which qualify the absolute right to receive payment of the rebate upon the surrender of the certificate. The particular condition now demanding our attention in this case is as follows, viz.: "If within thirty days from the date of the receipt of such certificate by the state commissioner of excise, the person surrendering such certificate shall be arrested or indicted for a violation of the liquor tax law, or proceedings shall be instituted for the cancellation of such certificate, or an action shall be commenced against him for penalties, such petition shall not be granted until the final determination of such proceedings or action," etc. Section 25. The clause from which I have quoted continues by providing that a conviction cancels the certificate and forfeits the rebate. If, in the present case, the transaction between Floss & Stauber and Miller, the petitioner, had been that of an actual sale of the certificate to the latter, the question of his right to receive payment of the rebate upon his surrender thereof, as affected by the subsequent proceedings against Stauber for a violation of the law, might be a very different one. The transaction in question, however, was not that of a sale, but that of an assignment to secure Miller in advancing to Floss & Stauber the moneys with which to pay the tax. Instead, therefore, of occupying the situation of a purchaser of the certificate, with the attendant right to carry on the business for which it was issued, in which case, by the terms of the statute, he would stand as an original applicant for and