pressly provided. Of course, the General | other lands in the same vicinity, but it was Assembly had no intention to provide by that decided that she could have no relief because section that everything in the general rev- the new act took away the right of county enue law relating to the assessment of prop-commissioners to review the assessment. erty should remain in force except where the Section 41 provided that the county board later act provided that it should not be, should not thereafter have certain powers of which would be foolish. The evident mean- review, and the new law had not taken effect ing of that section is that the provisions of so far as its provision for a board of review the Revenue Act remain in force except was concerned. There was as yet no board where a different provision was made by of review, and section 55 was relied on as the later act. So far as the assessment of keeping in force all the provisions of the property was concerned as one of the branch-general revenue law except so far as otheres of the revenue law, the act of 1898 was wise expressly provided in the new act. Alintended as a substitute for the provisions though there was not and could not be any of the Revenue Act. Section 19 dealt with board of review until the following year, the the duty of the property owner to make a new act was regarded as the only one furschedule of his personal property, and the nishing any remedy to a property owner unpenalty for refusal, neglect, or failure to justly assessed. The act came again before make the same is as follows: the court in the case of People v. Knopf, 183 Ill. 410, 56 N. E. 155, in December, 1899. The assessment for that year had been made under the act of 1898, and if the act were held to violate the Constitution as a mere amendment of the Revenue Act, and not a complete law for the assessment of property, the assessment and levy of taxes thereunder would have been void. The state would have been without means to carry on the government and maintain its penal or charitable institutions, and all municipalities and agencies of the government would have been helpless. The question whether the act of 1898 was a complete law in itself was considered and the rules of law stated, and it was said that the questions were to be looked at in the light of the rule that an act within the legislative power is to be sustained as constitutional if it can reasonably be done, and the reason for giving the rule its utmost force in the case was especially cogent on account of the conditions, which were plainly

"The assessor shall require every person to make, sign, and swear to the schedule provided for by this act. If any person shall refuse to make the schedule herein required, or to subscribe and swear to the same, the assessor shall list the property of such person according to his best knowledge, information. and judgment, at its fair cash value, and shall add to the valuation of such list an amount equal to fifty per cent. of such valuation. Whoever in making such schedule shall willfully swear falsely in any material matter, shall be guilty of perjury and punished accordingly.'

It will be noted that the provisions of section 19 are the same as those of section 24 of the Revenue Act, with the omission of the provision making the property owner refusing, neglecting, or failing to make and swear to the schedule guilty of a misdemeanor. The settled rule is that a subsequent statute revising the subject-matter of the former one and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former to the extent to which its provisions are re-apparent to every one. The act was charvised. Illinois and Michigan Canal v. City of Chicago, 14 Ill. 334; Culver v. Third Nat. Bank of Chicago, 64 Ill. 528; Schwartz v. Ritter, 186 Ill. 209, 57 N. E. 887; State Board of Health v. Ross, 191 Ill. 87, 60 N. E. 811; 36 Cyc. 1079. It is also the rule that when a section of a statute is re-enacted and a part omitted there is a presumption of the intention on the part of the Legislature to repeal the omitted provision. The act of 1898 is peculiar in the fact that it takes a particular subject out of the general revenue act and revises that subject; but that fact furnishes no reason for a different rule of law concerning the particular subject revised. The character of the act of 1898 as covering the subject of the assessment of property has been settled by decisions of this court. The act first came before the court in the case of People v. Commissioners of Cook County, 176 Ill. 576, 52 N. E. 334, in which Hetty H. R. Green by an original petition in this court sought to have a writ of mandamus issued to the county board to review her assessment. It was admitted that her property was valued greatly higher than

acterized as patchwork legislation because it left in force various provisions closely related to the assessment of property, but it was held that the act provided for an entire new system of making the assessment and the basis of it with new methods of procedure, and that it was substantially complete in itself as constituting an entire plan for the making of the assessment. We must abide by that decision, for certainly it could not be sufficient for sustaining the act and preventing the disastrous consequences that would have resulted from overturning it, and. be deemed insufficient as a mere intermingling of different provisions of the same sections relating to the same subject.

The state's attorney contends that section 24 of the Revenue Act and section 19 of the act of 1898 relate to different subjects, so that the rule concerning the repeal does not apply. His argument, in the first place, is that the addition of 50 per cent. to the value of the property as ascertained by the assessor is merely a method of ascertaining the value of the property. To say that the value shall be ascertained and 50 per cent. added

No freehold is involved in a case if the de

fendant may arrest the proceeding, defeat the
object of the suit, and prevent a disturbance of
his title by making payment or doing some act
to arrest the sale.

Dig. 88 557, 568; Dec. Dig. 219(12) Ap-
peal and Error, Cent. Dig. §§ 118, 119, 167.]
5. COURTS 219(33)-APPELLATE JURISDIC-
TION-FREEHOLD-FORECLOSING MORTGAGE.

[Ed. Note.-For other cases, see Courts, Cent.

and the total is still the value would be a 14. COURTS 219(12)-APPELLATE JURISDICcontradiction of terms. The 50 per cent. is TION-FREEHOLD. added as a penalty and has been so regarded by this court. People v. Meacham, 241 Ill. 415, 89 N. E. 691; Monticello Seminary v. Board of Review, 249 Ill. 481, 94 N. E. 938. The state's attorney, in the second place, insists that, regarded as a penalty, the addition of 50 per cent. violates the constitutional provision that the General Assembly shall provide revenue by levying a tax by valuation so that every person and corporation shall pay a tax in proportion to his, her, or its property. It is true that taxes are extended upon the addition as well as the value of the property and the penalty is collected in the form of a tax; but it is immaterial whether the penalty is collected in that way or in some other. The provision has the advantage of making the penalty fit the crime and satisfy the wrong done to the public by the measure of the public injury, so that the refusal to made a schedule in the case of a large estate would impose a greater penalty than in the case of a small estate, where the loss to the public would be trifling.

The provisions of section 24 making the property owner refusing, neglecting, or failing to list his personal property guilty of a misdemeanor having been omitted from section 19 of the act of 1898 covering the same subject, was repealed.

The judgment is affirmed.
Judgment affirmed.

(273 111. 560)

BECKER et al. v. FINK et al. (No. 10718.) (Supreme Court of Illinois. June 22, 1916.) 1. COURTS 219(12)-APPELLATE JURISDICTION-FREEHOLD.

A freehold is involved within the Constitution and statutes only when the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 557, 568; Dec. Dig. 219(12); Appeal and Error, Cent. Dig. §§ 110, 111, 118, 119, 167.]

2. COURTS 219(12)-APPELLATE JURISDICTION-FREEHOLD.

Where the litigation in a certain contingency may result in the loss of a freehold, but does not necessarily do so, a freehold is not involved.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 557, 568; Dec. Dig. 219(12) Appeal and Error, Cent. Dig. §§ 118, 119, 167.] 3. COURTS 219(12)-APPELLATE JURISDIC

TION-FREEHOLD-LIEN.

Where the question of a freehold depends upon the existence of a lien on land, no freehold is involved, even though the litigation may

result in the loss of a freehold.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 557, 568; Dec. Dig. 219(12): Appeal and Error, Cent. Dig. §§ 118, 119, 167.]

No freehold within the Constitution and statutes was involved in a mortgage foreclosure ority of liens, although a defendant lienor had suit, since it involved only enforcement or priforeclosed and secured a master's deed, and the suit was partly to set aside such deed, since such setting aside was a mere incident to the payment of a prior lien, and had no bearing on the real controversy between the parties.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 570; Dec. Dig. 219(33); Appeal and Error, Cent. Dig. §§ 110, 111, 118, 119, 131, 134, 167.]

Appeal from Circuit Court, St. Clair County; George A. Crow, Judge.

Suit by Gustave A. Becker, trustee, and others, against Henry J. Fink and others. From a decree for complainants, respondent the East St. Louis Lumber Company appeals. Cause transferred.

Keefe & Sullivan, of East St. Louis (C. P. Wise, of East St. Louis, of counsel), for appellant. Fred B. Merrills and Fred E. Merrills, both of Belleville, for appellees.

CARTER, J. On May 10, 1908, Willis F. Carl, being the owner of two lots in a subdivision in East St. Louis, in St. Clair county, Ill., made a contract with the East St. Louis Lumber Company whereby said company agreed to furnish lumber and mill materials to be used in the construction of three buildings on said lots. May 16, 1908, Carl made to Henry J. Fink, as trustee, three mortgages, each on a separate tract of land, and each to secure notes aggregating $2,500, maturing three years after date. The East St. Louis Lumber Company furnished the lumber and millwork according to its contract, to the value of $1,331.84, which were used in the erection of the three buildings on said lots. On December 31, 1909, the lumber company filed a bill for mechanic's lien against Carl, not making Fink, the trustee, or any of the holders of the notes, defendants to the suit. A decree was rendered in favor of the company for $1,441.53, and the property was ordered to be sold by the master in chancery if the amount due said lumber company, with costs of suit, was not paid by June 12, 1910. Payment not being made, the master in chancery on July 7, 1910, sold the property to the East St. Louis Lumber Company. The property not being redeemed, on October 24, 1911, the master made a deed of the property to said company. September 4, 1913, the trustee under the three mortgages, and the owners of some of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the notes filed this bill to foreclose the mortgages. Intervening petitions were filed by a number of other note holders. After the pleadings were settled the cause was referred to a master in chancery to take evidence. He reported that the trustee and the note holders had a first lien on said lots, and the East St. Louis Lumber Company had a second lien under the master's deed. On a hearing in the trial court exceptions to the master's report were overruled, and a decree was entered in accordance with the findings of the master that the trustee and note holders under the mortgages had a first lien on the property, and that the lien of the East St. Louis Lumber Company was subsequent and inferior to the mortgage liens of the note holders, and that, if Carl did not pay the sums found to be due under said notes and mortgages within a certain stated date, the property be advertised and sold according to law. From that decree this appeal was prayed by the East St. Louis Lumber Company. The cause has been brought directly to this court, apparently on the ground that a freehold is involved.

the establishing and enforcement of liens on real estate. In the determination of such questions no freehold is involved. Chicago & Great Western Land Co. v. Peck, 112 Ill. 408. Neither is a freehold involved because the decree practically authorizes the setting aside of the master's deed so far as it affects the lien of the trustee and note holders. The setting aside of the deed is a mere incident to the payment of the prior lien, and has no bearing on the real controversy between the parties. Burroughs v. Kotz, 226 Ill. 40, 80 N. E. 728. Manifestly on the facts in this case the question of title is only incidental to the chief question as to the priority of liens, and therefore, under the authorities already cited, a freehold is not involved. The following among many other authorities uphold such conclusion: Kirchoff v. Union Mutual Life Ins. Co., 128 Ill. 199, 20 N. E. 808; Adkins v. Beane, 135 Ill. 530, 26 N. E. 657; Fields v. Coker, 161 Ill. 186, 43 N. E. 616; Richie v. Cox, 188 Ill. 276, 58 N. E. 952; Haas Electric Co. v. Amusement Co., 236 Ill. 452, 86 N. E. 248, 23 L. R. A. (N. S.) 620, 127 Am. St. Rep. 297; Holinger v. Dickinson, 252 Ill. 123, 96 N. E. 896; Chicago Title & Trust Co. v. Tilton, 256 Ill. 97, 99 N. E. 897; Funk v. Fowler, 264 Ill. 21, 100 N. E. 754; Henry v. Britt, 265 Ill. 131, 106 N. E. 455.

The appeal should have been taken to the Appellate Court. The cause will be transferred to the Appellate Court for the Fourth District.

Cause transferred.

(274 Ill. 193)

BROUGHER et al. v. LOST CREEK DRAIN-
AGE DIST. et al. (No. 10556.)
(Supreme Court of Illinois. June 22, 1916.)
APPEAL AND ERROR 619- RECORD-CON-
TENTS-AUTHENTICATED COPY OF RECORD OF

[1-5] It has been repeatedly decided by this court that a freehold is not involved in a suit to foreclose a mortgage. Carbine v. Fox, 98 Ill. 146; McIntyre v. Yates, 100 Ill. 475; VanMeter v. Thomas, 153 Ill. 65, 38 N. E. 1036; Reagan v. Hooley, 247 Ill. 430, 93 N. E. 380, and cases cited. A freehold is involved, within the sense and contemplation of the Constitution and statutes, only in cases where the necessary result of the judgment or decree is that one party gains and the other loses a freehold, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves a decision of such issue. Malaer v. Hudgens, 130 Ill. 225, 22 N. E. 855; Van Tassel v. Wakefield, 214 Ill. 205, 73 N. E. 340. Where the litigation in a certain contingency may result in the loss of a freehold, but does not necessarily do so, a freehold is not involved. Chicago, Burlington & Quincy Railroad Co. v. Watson, 105 Ill. 217. Where the question of a freehold depends upon the existence of a lien on land, no freehold is involved, even though the litigation may result in the loss of a freehold. No freehold is involved if the defendant may arrest the proceeding, defeat the object of the suit, and prevent a disturbance of his title by making payment or doing some act to arrest the sale. WachsWachs- 619.] muth v. Penn. Life Ins. Co., 231 Ill. 29, 83 Appeal from Circuit Court, White County; N. E. 85. In effect, counsel for appellant J. C. Eagleton, Judge.

JUDGMENT.

Under Hurd's Rev. St. 1913, c. 110, § 100, providing that "authenticated copies of records of judgments, orders and decrees appealed from shall be filed in the office of the clerk of the Supreme Court," unless an authenticated copy of the record of the judgment appealed from is filed with the clerk of the Supreme Court, the appeal will be dismissed; it not being sufficient that the record filed contains a copy of the minutes made by the presiding judge of the trial court, showing that judgment against the appellant was

assessed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2721, 2722; Dec. Dig.

contend that the decree is erroneous because Petition for mandamus by C. D. Brougher it does not provide that from the proceeds and another against Lost Creek Drainage of sale the East St. Louis Lumber Company District and others. After an order overshould be first paid, and that the bill is ruling petitioners' demurrer to the defendreally one to redeem, and not to foreclose. ants' plea, petitioners appealed. Dismissed. There is no dispute as to the title. It is real- N. C. Bainum, of Carmi, for appellants. ly a question of the priority of liens. The Conger, Pearce & Conger, of Carmi, for apscope of the whole litigation is one involving pellees.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and to rebuild said bridge. To said plea appellants filed a general and special demurrer, and averred, among other things, that said proviso of section 55 of the Levee Act relied on by appellees for their defense is in contravention of sections 9 and 10 of article 9, of section 31 of article 4, and of section 2 of article 2 of our Constitution of 1870.

So far as this record shows, no judgment has ever been entered in this case. The record and abstract only contain the judge's minutes preserved in his docket, which the record shows to read, in substance, that said demurrer is overruled and that the petitioners except and elect not to further plead, whereupon judgment is assessed in favor of defendants and against petitioners, and the petition is dismissed at the cost of the petitioners. This appeal followed.

Section 100 of chapter 110 (Hurd's Stat. 1913) provides that:

"Authenticated copies of records of judgments, the office of the clerk of the Supreme Court,' orders and decrees appealed from shall be filed in etc.

Unless such authenticated copy of the record of the judgment appealed from is filed, the statute providing for the perfecting of appeals is not complied with. It is not sufficient that the record filed contains a copy of the minutes made by the presiding judge of the trial court. The record in the present case does not purport to contain any authenticated copy of the record of any judgment. The appeal must therefore be dismissed.

DUNCAN, J. C. D. Brougher, sole com- township, and not on appellees, to replace missioner of highways of the town of Mill Shoals, and the town of Mill Shoals, in White county, appellants, filed in the circuit court of White county a petition for mandamus against the Lost Creek drainage district and the commissioners of said district to compel them to replace and rebuild a bridge removed by them in the course of their construction of their system of drainage across a certain public highway in said township. The petition alleges that by the order and judgment of the county court of said county said district, situated in White and Hamilton counties, was duly organized under and by virtue of the Levee Act, and that included in said drainage district are certain lands in said township; that in accordance with the plans and specifications the main ditch of said drainage district was constructed in Lost creek across a public highway in said township over which Brougher, as said sole commissioner, has control and jurisdiction, and at which crossing there had theretofore been constructed and maintained, as a part of said public highway over said creek, a certain bridge; that in the construction of said ditch along and within the said Lost creek said drainage commissioners caused to be removed said bridge; and that said commissioners have been many times notified by appellants to rebuild and to replace the said bridge so removed by them; but that they have failed and refused so to do and have themselves demanded that appellants replace and rebuild the said bridge at the expense of the town of Mill Shoals. The petition concludes with a prayer that the writ issue commanding appellees forthwith to restore the bridge to its original condition, and, if necessary, to levy a special assessment to meet the expense of the same. Appellees filed their plea to the petition, setting forth that said drainage district was duly organized under said Levee Act and that the other appellees were and are the duly appointed commissioners of said district; that the county court aforesaid confirmed the plans for said district; that one of its ditches was laid out and constructed on the line of a natural water course known as Lost creek; and that appellees, in excavating their ditch along such natural water course, were compelled to, and did, remove said bridge spanning said water course at said public crossing; and that in so doing they did no more damage than was necessary to remove the bridge; that by virtue of the third proviso of section 55 of the Levee Act (Hurd's Rev. St. 1915-16, c. 42), under which said ditch was constructed, appellees had the legal right, and it was their duty, to so remove such bridge for the purposes of their passage thereunder and the Under statutory power to declare what shall construction of said ditch; and that said be nuisances and abate them, a town cannot, statute casts the duty on Brougher and said by ordinance, make the clubhouse locker system

Appeal dismissed.

(273 I11. 602)

TOWN OF CORTLAND v. LARSON. (No. 10631.) (Supreme Court of Illinois. June 22, 1916.) 1. INTOXICATING LIQUORS 10(2)-MUNICIPAL REGULATION-CONSTRUCTION OF CHAR

TER.

Under charter power to "regulate, prohibit and license the selling of intoxicating liquors," a town cannot enact an ordinance prohibiting club members from receiving and keeping intoxicating liquors for their individual use in clubhouse lockers.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 8, 9; Dec. Dig. 10(2).]

-

2. INTOXICATING LIQUORS 10(2) POLICE POWER-SCOPE OF Power.

The ordinance was not within the town's police power for the orderly reception, keeping, and use of intoxicating liquors by private individuals, and does not affect the public welfare

or health.

[Ed. Note.-For other cases, see Intoxicating
Liquors, Cent. Dig. §§ 8, 9; Dec. Dig.
10(2).]

3. INTOXICATING LIQUORS
POWERS-NUISANCE.

10(2)

POLICE

($1,000) payable to the said town, conditioned that he will not violate or permit any viola. [Ed. Note.-For other cases, see Intoxicating tion of this ordinance at such place: Provided, Liquors, Cent. Dig. §§ 8, 9; Dec. Dig. that if the keeper refuses or neglects to abate 10(2).] such nuisance instanter after being notified so to do by the president or constable of said town,

Appeal from De Kalb County Court; Wil- the president may order any such place sum liam L. Pond, Judge. marily shut up and abated."

"Sec. 3. All places within the said corporate limits where orders are taken or agreements made for the sale or delivery of any intoxicating liquor or spirituous, vinous, malt or fermented liquor, or any mixture of said liquors, or any drinks which contain any spirituous, vinous, malt or fermented liquor in any quantity whatsoever, or where any said liquors are sold, given away, bartered, exchanged or in any manner disposed of, or are kept for sale, or are received or kept for the purpose of use or distribution or division among the members of any club or association by any means whatsoever, shall be taken and held and are declared to be a nui- "Sec. 10. The board of trustees shall also have sance and may be abated as such; and whoever power to make regulations to secure the general shall keep any such place, either as principal, health of the inhabitants; to declare what shall clerk or servant, shall on conviction thereof be be nuisance, and prevent and remove the same; fined not less than thirty dollars ($30) nor more*** the exclusive power to regulate, prothan fifty dollars ($50), and it shall be part of hibit or license the selling of spirituous, vinous the judgment, upon the conviction of the keeper, and malt liquors of any kind within the corpothat the place so kept shall be shut and abated rate limits; *** to make all such ordinancby the constable until the keeper shall give bond, es from time to time, and alter, amend and rewith sufficient security to be approved by the peal the same, as shall be necessary to carry court, in the penal sum of one thousand dollars into effect and execution the powers specified in