Appeal from appellate court, third district. Carter & Govert and John H. Williams, for appellant. Almeron Wheat, for appellee. MAGRUDER, J. This is an action of assumpsit brought in the circuit court of Adams lant against the appellee, to recover a balance which appellant claims to be due to him for services as county superintendent of schools. Jury was waived by agreement, and the case was tried by the court without a jury. The issues were found in favor of the county of Adams, the defendant below, and judgment was entered accordingly. This is an appeal from the judgment of the appellate court affirming such judgment of the circuit court. The plaintiff and defendant below each submitted to the trial court certain written propositions, to be held as law in the decision of the case. Those of the plaintiff were marked "Refused," and those of the defendant, except one, were held to be the law. The questions involved arise upon the exceptions of appellant to the action of the trial court in thus holding and refusing the propositions so submitted. the verdict, or any proceeding prior to the verdict; and there is no occasion, therefore, for awarding a venire facias de novo. The case of Martin v. Barnhardt, 39 Ill. 9, is in point. It there appeared that no error had intervened prior to the verdict, and that the verdict itself was sufficient to sustain a judg-county at the March term, 1887, by the appelment, but that no sufficient judgment had been rendered. Upon that state of the record, it was held that all that was necessary to do in order to correct the error was to reverse the judgment and remand the cause, with leave to the plaintiff to move for a proper judgment on the verdict; it being deemed unnecessary to award a venire facias de novo. In Cole v. State, 10 Ark. 318, which was a prosecution for an assault with intent to murder, the verdict was delivered in the presence of the defendant, the irregularity complained of consisting simply in pronouncing sentence in his absence; and it was held that the consequence would not necessarily be the awarding of a new trial, but only a reversal of the judgment and a remanding of the cause, with instructions to the trial court to proceed to pronounce judgment in accordance with the verdict, after having inquired of the defendant whether he had anything further to say why the judgment of the court should not then be pronounced. In Kelly v. State, 3 Smedes & M. 518, which was an indictment for the murder of a slave, it did not appear that the prisoner was present at the time of pronouncing sentence, and the judg-adopted a report of the committee on finance, ment was further defective in not setting forth the time from which the commencement of the imprisonment should date; and it was held that for those errors the judgment should be reversed, without disturbing the verdict, and the cause remanded, with instructions to pronounce judgment in accordance with the verdict, after having inquired * superintendent of schools, $800.00 of the defendant as above stated. We are per annum." In pursuance of this action of not disposed to hold, as seems to have been the board, appellant has received, as superheld in the 'two cases last cited, that it is es- intendent of schools, for the four years for sential to the validity of the sentence that which he was elected, the sum of $3,333.33, the defendant should be inquired of as there besides the commissions on sales and moneys stated; but, on the authority of those decis-disbursed, as allowed by section 27 of the ions, as well as the other cases above cited, we hold that the judgment must be reversed, with instructions to the circuit court to pronounce sentence upon the defendant in accordance with the verdict, the defendant being for that purpose personally present in court to receive such sentence. (130 III. 558) JIMISON v. ADAMS COUNTY.1 (Supreme Court of Illinois. Oct. 31, 1889.) SCHOOL SUPERINTENDENT-COMPENSATION. School Law Ill. 1885, § 20, which provides that in counties having not more than 100 schools the county board may limit the time of the county superintendent, does not authorize the superintendent of a county having more than 100 schools, who was in office when said act was passed, to receive any other compensation than that previously fixed by the board of his county. In November, 1882, appellant was elected county superintendent of schools of Adams county for the term of four years, beginning on the first Monday of December, 1882. At the meeting of the board of supervisors of Adams county in September, 1882, the board in the following words: "We, your committee on finance, to whom was referred the matter of fixing salaries of the several county officers for their terms commencing the first Monday in December, A. D. 1882, would recommend that they remain as heretofore established, viz.: County judge, $2,000 per annum; "Fees and Salaries Act." He has, therefore, been paid more than the annual compensation of $800, fixed by the board of supervisors. Appellant claims that, under an act of the legislature approved June 26, 1885, in force July 1, 1885, amending sections 13, 20, and 71 of the school law, (3 Starr & C. Ann. St. 494,) he performed certain additional services as such superintendent, between July 1, 1885, and December 1, 1886, for which he is entitled to be paid in addition to the commissions and the sum of $3,333.33, already received by him. It is compensation for such additional services which he seeks in this suit. Section 5, art. 8, Const. provides as follows: "There may be a county superintendent of schools in each county, whose qualifications, powers, duties, compensation, and time and manner of election, and term 1 Reported by Louis Boisot, Jr., of the Chicago of office, shall be prescribed by law." This bar. provision vests the power of fixing the com as may be designated by the county board in counties of first and second class," are eliminated from section 27, so that it should read: "For all other duties required by law to be performed by them, the sum of $4 per day." If the construction thus contended for be correct, then appellant would be entitled to be paid, during the year and five months of his term after July 1, 1885, the sum of $4 per day for each day on which he rendered services as superintendent to the county, and would not be limited to compensation at the rate of $4 per day for 200 days in each year. For example, under the view of the appellant, he might receive $1,200, or $4 per day for 300 days during the year from July 1, 1885, to July 1, 1886, instead of $800, or $4 per day for 200 days, as fixed by the resolution of the county board. We regard the position of the appellant upon this question as wholly untenable, so far as it relates to the compensation of the superintendents who were in office when the amendatory act was passed, and whose compensation had been fixed before the passage of that act. pensation of county superintendents of there are more than 100 schools in the counschools in the legislature of the state. There- ty; in other words, that, by the amendment fore such superintendents do not belong to of 1885, the words, "for such number of days that class of county officers whose compensation is to be fixed by the county board, as provided in section 10, art. 10, Const. By section 27 of the "Act concerning fees and salaries, etc., in force July 1, 1872, the legislature provided that county superintendents of schools should have 3 per cent. commissions on certain sales, 2 per cent. commissions on certain moneys distributed, paid, or loaned out, and "for all other duties required by law to be performed by them, for such number of days as may be designated by the county board, in counties of first and second class, the sum of $4.00 per day," etc. It is admitted that Adams county is a county of the second class. Said section 27 was in force in September and December, 1882. It will be noted that the board of supervisors in September, 1882, did not designate a specific number of days for which the superintendent was to be paid, but fixed his salary at $800 per annum. But both appellant and the board seem to have regarded the fixing of the salary at $800 per annum as being the same thing as a designation of 200 days in each year as the time for which the superintendent was to be paid, the statute fixing the per diem at $4. Whether this view be correct or not, it is sufficient, for the purposes of the present suit, that both the parties to it agree to treat the action of the board as a designation of 200 days in each year to be paid for at the statutory rate of $4 per day. Section 20 of the school law, as amended in 1885, provides that "the county superintendent shall visit each school in the county at least once a year; and in the performance of this duty he shall spend at least half the time given to his office, and more, if practicable, in visiting ungraded schools. In counties having not more than 100 schools, the county board may limit the time of the county superintendent; provided, that in counties having not more than 50 schools the limit of time shall not be made less than one hundred and fifty days a year; in counties having from 51 to 75 schools, not less than two hundred days a year; and in counties having from 76 to 100 schools, not less than two hundred and fifty days a year." It is admitted that there are more than 100 schools in the county of Adams. No part of section 20 as amended, expressly repeals any part of section 27 of the fees and salaries act. If the one repeals the other, it is by implication only. Repeals by implication are not favored by the law. The implication is that, because the county board may limit the time of the superintendent in counties having not more than 100 schools, it may not do so in counties having more than 100 schools. But such repeal by implication, even if it exists, can have no application to the case of this appellant. It is a general rule that a statute will be construed to be prospective, and not retroactive, in its operation, unless it clearly appears that the legislature intended it to have a retrospective effect. In the absence of a clear manifestation of such legislative intent, statutes will be so construed as not to prejudice or affect past transactions. Thompson v. Alexander, 11 Ill. 54; Conway v. Cable, 37 Ill. 82; Knight v. Begole, 56 Ill. 122; In re Tuller, 79 Ill. 99. Before appellant went into office, the county board had fixed his compensation for each year of the four years of his term, and he had performed the duties of his office, for the compensation so fixed, for nearly three years before the amendments of 1885 were passed. Under the law as it existed prior to the passage of the amendments, the county of Adams had an arrangement for receiving the services of appellant for four years, at $4 per day, for 200 days of each year. Did the legislature intend, by those amendments, that the county should be charged with a greater sum than that fixed by its board and accepted by appellant? We think not. Appellant claims that, inasmuch as section 20 as amended only gives the county board the power to limit the time of the superintendent in counties having not more than 100 schools, it has taken away the power of the board to fix any limit in counties having more than 100 schools; that the foregoing provision in section 20, as amended in 1885, repeals so much of section 27 of the fees and salaries act as authorizes the county board to designate the number of days for which superintendents are to be paid, leaving their The amendments of 1885 to sections 20 and compensation to be $4 per day, in counties 71 of the school law, were made by the same of the first and second class, for the number act, and approved on the same day, to-wit, of days they are actually employed, where June 26, 1885. Section 71, as amended, pro HART v. BURCH.1 (130 I11. 426) (Supreme Court of Illinois. Oct. 31, 1889.) PARTITION-Dower. 1. A tenant in common of land has no such title in the interest of his co-tenant as to make a deed by the co-tenant's widow before her dower is assigned take effect as a release of dower. 2. A purchaser of land at partition sale does not, before confirmation of the sale, acquire such title as will enable him to acquire a release of an unassigned right of dower. 3. After partition has been decreed and part of the land sold, a widow who has a dower interest in the land, and who, though not a party to the partition suit, consents to the decree and sale, and elects to take her dower interest in money, may establish her rights by cross-bill, without making the purchasers at the partition sale parties thereto. Appeal from circuit court, Morgan county: CYRUS EPLER, Judge. John D. Hart and others filed a bill in vides that county superintendents "elected compensation than that fixed by the county hereafter" shall receive, etc., "$4 a day for board. The judgment of the appellate court such number of days as shall be spent in the is affirmed. actual performance of their duties, not exceeding the number fixed by the county boards in counties in which the boards are given power to fix the number of days by section 20 of this act," etc. Inasmuch as section 71, as thus amended, gave $4 a day for such number of days as should be spent in the act ual performance of their duties to those superintendents only in counties having more than 100 schools, who should be elected after the passage of the amendments, it will be presumed that the legislature did not intend, by section 20, to give such compensation to superintendents who had been elected in such counties before the passage of the amendments. The reference in se tion 71 to section 20, as above quoted, indicates that both sections were intended to refer to superintendents to be thereafter elected. If the amendatory act of 1885 increases or diminishes the compensation of county superintendents of schools during their terms of of- chancery against Elizabeth Hart and others, fice, it is, in that regard, unconstitutional. to assign dower to Elizabeth Hart, as the Section 11, art. 9, Const., provides that "the tition of the other real estate described among widow of David Hart, deceased, and for parfees, salary, or compensation of no municipal the other parties to the suit, as the heirs at officer, who is elected or appointed for a defi- the other parties to the suit, as the heirs at law of David Hart, deceased. Benton Hart, nite term of office, shall be increased or diminished during such term." In our pres-father, leaving his widow, Lucy A. Hart, one of the heirs of David, died after his ent constitution counties are recognized as who subsequently married Mr. Burch, and municipal corporations. Wulff v. Aldrich, 124 Ill. 591, 16 N. E. Rep. 886. Section 12, she is the appellee. Her rights as widow art. 9, for instance, uses the following lan- were set out on the face of the bill, but by mistake she was not made a party, and no guage: "No county, city, township, schooldistrict, or other municipal corporation," notice of her dower interest was taken in the etc.; and again: "Any county, city, school-orders. Dower was allotted Mrs. Elizabeth district, or other municipal corporation," etc. Part of the land was sold January 29, 1886, It follows that a county superintendent of schools must be regarded as a municipal officer, within the meaning of section 11, art. 9. Appellant, however, contends that the prohibition of the constitution, when applied to a case like the present, is merely directed against a change in the per diem, and not against a change in the number of days to be designated by the county board. But such a construction cannot be correct. It would Hart, and the other lands were ordered sold. and the sale was approved. August 5, 1886, the remainder of the land was sold to John D. ber term, 1886, and approved. August 29, Hart. This sale was reported to the Novem1886, Lucy A. Burch, then Hart, sold and quitclaimed by deed all her interest in all of she filed, by leave of the court, a cross-bill, the lands to John D. Hart. Subsequently seeking to set aside this deed, and asking to give rise to schemes for evading a wholesome be endowed out of the proceeds of the sale, give rise to schemes for evading a wholesome and the court granted the relief asked for, provision of the fundamental law. The per and set aside and annulled the deed. From diem is merely the rate of compensation. this order John D. Hart appeals. The compensation itself is the per diem mul SHOPE, C. J. tiplied by the number of days designated. T. Layman, for appellee. Morrison & Whitlock, for appellant. M. Appellant's compensation, as fixed, was not $4; it was $4 multiplied by 200 for each year of the four years. The principal question arisIf the per diem of $4 should remain the same, yet any statute ing upon this record is whether the quitclaim which permitted the county board to increase deed of August 29, 1886, from Lucy A. or diminish the number of designated days lease her dower in the lands of which her husBurch, appellee, to appellant, operated to reduring the term of office to which such per diem should be applied would increase or diminish the compensation of the officer, and therefore would be subject to the constitutional prohibition above quoted. We are of the opinion that the amendatory act of 1885 did not have the effect of so changing section Upon the death of her husband, Wesley B. 27 of the fees and salaries act as to authorize 1Reported by Louis Boisot, Jr., of the Chicago appellant to receive any other or different bar. band died seised. It is not questioned that this deed was in every way sufficient for that purpose, if the grantee therein stood in such relation to the estate that a release thereof to him would unite the dower with the fee. Hart, appellee's right of dower in the undi- | here lies, not in ascertaining the rule of law, vided one-eleventh part of the land of which but in the relation appellant sustained to the David B. Hart died seised, and of which her title by virtue of his purchase. A sale by husband died seised as tenant in common master in chancery, or other person authorwith his brothers and sisters, became con- ized to execute the decrees in chancery, is summate, and the right of action accrued to not, until confirmed by the court, a “sale,” her to have the same assigned. The right of in the legal sense. Until confirmed, the dower, when consummate, is, before assign- | bargain is incomplete, and confers no right ment, a right resting in action only. It can in the land upon the purchaser. "Until exist only in the person upon whom it is then," says Mr. Rorer, (Jud. Sales, 2d Ed., cast by operation of law, and a deed or con- § 106,) "it is a sale only in a popular, and veyance of it will pass no title, and can only not in a judicial or legal, sense. The chanbe effective as a release and extinguishment cellor has a broad discretion in the approval of the right. Such right of dower is not the or disapproval of such sale. • The accepted subject of transfer or sale, and cannot be re- bidder * * * acquires, by the mere acleased to one not in privity with the title un- ceptance of his bid, no independent right der which the dowress claims. 1 Washb. * * * to have his purchase completed; ' Real Prop. 247, 252, 301; 1 Scrib. Dower, but is merely a preferred proposer, until con478; Summers v. Babb, 13 Ill. 483; Dock Co. | firmation of the sale by the court, as agreed v. Kinzie, 49 Ill. 289; Reiff v. Horst, 55 Md. to by itsministerial agent.'" See Young 42; Kitzmiller v. Van Rensselaer, 10 Ohio v. Keogh, 11 Ill. 642; Ayers v. Baumgarten, St. 63. 15 Ill. 444; Rawlings v. Bailey, Id. 178; Busey v. Hardin, 2 B. Mon. 407; Hays' Appeal, 51 Pa. St. 58. In the case last cited the court says: "Even the highest bidder, whose bid has been returned to the court as the best offered, has acquired no right which debars the heirs or their counsel from endeavoring to have his bid rejected and a resale ordered. * * 39 His bid, though the highest, was but an offer to purchase, subject to the approval or disapproval of the court, and in approving sales made in partition it is the duty of the court to regard primarily the interests of the heirs." But if the authorities were not comparatively uniform in this respect, it would seem no doubt would remain upon reading the statute of this state in respect thereto. Sections 29, 30, c. 106, Rev. St. It will be seen that the matter of the sale and purchase is left in fieri, until the court shall render its order of approval. Confirmation is final consent, and the court, being, in fact, the vendor, may consent or not, in its discretion. Rorer, Jud. Sales, §§ 122-132. The purchaser, therefore, acquires no interest in or right to the land, and, being a mere offerer to purchase, stands in no such relation to the title that a purchase in of a dower interest therein would unite it with the fee. It follows that appellant, by virtue of his purchase at such master's sale, acquired no such interest in the land as would enable him to take a release of dower. While it is not necessary that the releasee should hold the fee, yet he must be the legal or equitable owner of the title, or stand in such relation thereto that the dower right, upon execution of the release, will unite with the fee. An attempted conveyance to one not standing in such privity is ineffectual to release dower. Some months before the execution of the deed by the dowress, a considerable portion of the land had been sold at the master's sale under the decree in partition, to strangers, and the deeds confirmed. Afterwards, but still before the making of the deed by the dowress, the residue of the land was sold by the master in chancery, in further execution of the decree in partition, to appellant; but no report of the sale had been made, or confirmation thereof had, nor a conveyance by the master made, until some months after the execution of the deed by the dowress to appellant. Did appellant, by virtue of his purchase at the master's sale, acquire such interest in the land as would enable him to take a release of dower? It is clear he did not as to all that portion which had previously been sold to others. The title to so much had passed into others, with whom he had no connection. Whatever right he may have had in these lands had been extinguished by the sale, and deeds made in pursuance thereof. Nor did he stand in the relation of warrantor in the chain of title so as to bring him within the rule that a warrantor may purchase in the It is also urged that appellant was owner, as dower outstanding, and thus relieve himself tenant in common with the other heirs at law from liability upon his covenants of warranty. of David Hart, deceased, of an undivided interIn respect of the portion purchased by appel- est in all the land set off to Mrs. Elizabeth lant, it is contended that, although the sale Hart, widow of said David, for her dower, as was not complete until approved, he was, well as in all the land of which said David died nevertheless, the equitable owner of the seised. It is true that appellant owned the title, and might purchase in the dower of ap- undivided one-eleventh of all of said land as pellee. This, we think, is an erroneous tenant in common with his brothers and view. It is true that the release may be sisters, or the heirs of such as were deceased. made to the equitable owner of the land, for The children and heirs-at-law of Wesley B. he could not assert it against the fee owner, Hart, also, as representing their father's but upon its release to him would become share, were seised of a like interest in commerged and extinguished. The difficulty mon. It is said that appellant, as tenant in common, the dower must be assigned in common; she, being entitled pro tanto of her husband's estate, cannot have it otherwise than her husband had it. 1 Cruise, Dig. tit. 6, c. 3, § 10; title 20, § 25. That is, she, being by the statute endowable of the lands of which her husband died seised, is let into the estate as he possessed it at his decease, and not otherwise. So that, the dower of his mother having been assigned, the heirs of Wesley B. Hart held in common one-eleventh of the residue, subject to the dower of appellee therein; and she would be entitled to onethird of one-eleventh for her life, in common, and the heirs at law of Wesley B. Hart to two-thirds of one-eleventh thereof during the continuance of her life-estate. In case of partition, as we have seen, such dower interest would follow the portion assigned to the heirs of Wesley B. Hart. See, also, French v. Lord, 69 Me. 537. It must be apparent that this dower right was not an incumbrance upon the estate held in common. Appellant had no interest in or right, legal or equitable, to the undivided portion of the land out of which appellee's dower arose, and upon which it was alone dependent. A conveyance to him would therefore no more unite it with the fee vested in the heirs at law of Wesley B. Hart than would a conveyance to any stranger to the title. common in said lands, might purchase in the It is also insisted that relief was improperly granted without the filing of an original bill by appellee, to which the purchasers at the first sale were made parties. The original bill filed by appellant by apt averment set out the dower interest of appellee, and prayed for its assignment, and its allegations were ample upon which to base the decree. The fund derived from the sale was in the control of the court for distribution; and although she had not been served, and the cause had proceeded to decree and sale without further notice of her dower right, yet appellee, while the court had jurisdiction, came into court, consented to the decree and sale, and elected to take her dower interest in money. The land had been reported not susceptible of division. There is no pretense the land had not sold for its full value, and we can see no impropriety in the decree rendered. Nor were the purchasers at the first sale at all necessary parties. It would have been inequitable to have burdened them with the expense of independent litigation. By the decree rendered, their interests are in no way affected. Finding no error in the record, the decree is affirmed. (130 I11. 406) PEOPLE ex rel. BOARD OF EDUCATION v. (Supreme Court of Illinois. Oct. 31, 1889.) MUNICIPAL CORPORATION-TAXATION FOR EDUCA TIONAL PURPOSES-MANDAMUS. Act Ill. June 3, 1879, amending the school law, which provides that school directors and village or city authorities may levy a tax, not to ex1Reported by Louis Boisot, Jr., of the Chicago |