that steps may be taken to confirm said assessment; and whereas, since the passage of said ordinance and the filing of such petition the prices of labor and material have so increased that, in the opinion of the engineer of the board of local improvements, the improvement cannot be constructed for the amount estimated; and whereas, in the opinion of the said board, this improvement should be made: It is therefore resolved, that the petition now pending in the county court providing for this improvement be dismissed, and that the city engineer and the engineer of the board of local improvements be directed to prepare a new estimate for the above improvement, and that a new ordinance be prepared and sent to the city council providing for this improvement, in accordance with the new estimate, pursuant to the original resolution heretofore adopted." On May 22, 1899, the board of local improvements submitted to the common council of the city a written recommendation for the improvement of Clybourn avenue, in Chicago, from the north curb line of Division street to the north curb line of North avenue, submitting therewith an ordinance for the said improvement, together with an estimate of the cost thereof, and recommending the passage of said ordinance and the making of said improvement. Attached to the latter ordinance, which was passed on May 22, 1899, was an estimate of the cost of the improvement, signed by the city engineer and engineer of the board of local improvements. The latter estimate, which was dated May 22, 1899, fixed the cost of the improvement at $29,500. Section 2 of the ordinance of May 22, 1899, approved of the recommendation of the board dated May 22, 1899, and also the estimate of the cost of the improvement at $29,500. On June 17, 1899, the present petition was filed by the city of Chicago in the county court of Cook county, praying for the confirmation of a special assessment for the purpose of curbing, grading, and paving that portion of Clybourn avenue above mentioned, to which petition was attached a certified copy of said ordinance of May 22, 1899, together with the recommendation of the board of that date, and the itemized estimate of the cost of the improvement, fixing the cost of said improvement at $29,500. On June 19, 1899, the court ordered that John A. May be directed to make a true and impartial assessment, etc. On July 29, 1899, the verified assessment roll was filed. On August 10, 12, and 15, 1899, objections to the confirmation of the assessment were filed by the present appellants as to the property owned by them. Up to this point in the proceedings for the new assessment, estimated at a cost of $29,500, the former proceeding for the levying of an assessment for the same improvement, at a cost of $25,500, was still pending; said former proceeding not having been dismissed. as heretofore stated, until September 12, 1899. On September 25, 1899, and in the present proceeding begun by the 57 N.E.-2

filing of the petition filed on June 17, 1899, the case at bar was heard on the legal objections made by the present appellants, which objections were taken under advisement by the court. On September 28, 1899, the objections made by the appellants were sustained by the court. On October 6, 1899, the city made a motion to vacate the order of the court sustaining said objections, the hearing of which was continued. On October 12, 1899, the motion to set aside the order sustaining the objections was allowed, over the objection of counsel for the appellants, and exception was taken by the latter. Counsel for the city then offered in evidence upon the question of said objections a certified copy of the ordinance of May 22, 1899, together with the recommendation of the improvement, and the estimate of the cost at $29,500, thereto attached, and also the affidavits of mailing and posting notices, the affidavit of publication, and the assessment roll, being the same affidavits theretofore offered by the city before the order sustaining the objections was vacated. The city then offered in evidence a portion of the former proceedings for the same improvement when its cost was estimated at $25,500, to wit, the resolution and proceedings of December 27, 1898, January 18, 1899, February 9, 1899, and May 17, 1899, as the same have been herein before set forth. Then, on the same day, viz. October 12, 1899, the record shows the following motion by the counsel for the city and proceedings had thereon, to wit: "I move that the assessment roll be reduced $4,000. Objected to. Objection overruled. To which ruling and decision of the court the objectors, by their counsel, then and there duly excepted." Counsel for the objectors then introduced in evidence the former petition, filed on April 8, 1899, together with the ordinance of March 6, 1899, and the recommendation attached thereto, together with the estimate of the cost of the improvement at $25.500, and the orders entered on April 8 and September 12, 1899, as heretofore set forth. Upon the second hearing of the objections thus had, on October 12, 1899, said objections were overruled by the court, and a jury having been waived by agreement, and the objections triable by jury submitted to the court, the court thereupon found the issues for the petitioner, the city of Chicago, and entered an order confirming the assessment roll. From such judgment of confirmation, the present appeal is prosecuted.

Richard S. Folsom, David Fales, and Swift, Campbell & Jones, for appellants. Charles M. Walker, Corp. Counsel, and Armand F. Teefy, Asst. Corp. Counsel, for appellee.

MAGRUDER, J. (after stating the facts). The objections filed by the appellants upon the trial below to the confirmation of the assessment attacked the validity of the ordinance lying at the basis of the assessment, because of an alleged failure to comply with

certain preliminary requirements of the statute. It is contended on the part of the appellants that, before the passage of the ordinance under which the present assessment was levied. no estimate by the city engineer for the improvement was incorporated into the records of the board of local improvements, and no public hearing was held at which the people could discuss the cost of this improvement, and 10 days had not elapsed between the time of the passage of the authorizing resolution and the submission of the ordinance to the city council. Section 7 of the act of June 14, 1897, "concerning local improvements," provides that the board of local improvements shall have the power to originate a scheme for any local improvement to be paid for by special assessment or special tax, either with or without a petition, and that, in either case, the board shall adopt a resolution describing the proposed improvement, which resolution shall be at once transcribed into the records of the board. The resolution so adopted shall fix a day and hour for the public consideration thereof, which shall not be less than 10 days after the adoption of the resolution. The board shall also cause an estimate of the cost of the improvement to be made in writing by the public engineer, to be itemized to the satisfaction of the board, and this estimate is required to be made a part of the record of said resolution. Notice is required to be given by posting, or by posting and mailing, of the time and place of the hearing, and this notice is required to contain the substance of the resolution adopted, and the estimate of the cost of the improvement. Section 8 provides that, at the time and place fixed in the notice for the public hearing, the board shall meet and hear the representation of any person desiring to be heard on the subject of the necessity of the proposed improvement, the nature thereof, or cost as estimated; and, after such hearing, the board shall adopt a new resolution, abandoning, or modifying or adhering to, the proposed scheme, as they shall consider most desirable.

It thus appears that, in its original resolution describing the proposed improvement, the board must fix a day and hour for public consideration of said resolution, and shall also make the estimate of the cost of the improvement, as made by the public engineer, a part of the record of the resolution. Inasmuch as the day and hour fixed for the public consideration of the resolution must be not less than 10 days after the adoption of the resolution, and inasmuch as the board must cause an ordinance for the improvement to be prepared after such hearing, it follows that 10 days must elapse between the time of the adoption of the resolution authorizing the improvement and the submission of the ordinance to the council. This must be so, because it is after the hearing, when the board adopts the new resolution adhering to the improvement, "and thereupon, if the said pro

posed improvement be not abandoned, said board shall cause an ordinance to be prepared therefor to be submitted to the council." These preliminary requirements as to the contents of the resolution of the board of local improvements, and as to the lapse of the time between the adoption of the resolution and the submission of the ordinance, are mandatory and jurisdictional in their character.

Statutes delegating the power to levy taxes or assessments must be construed strictly. This power cannot be rightfully exercised by corporate bodies, unless it is authorized either in express terms or by necessary and clear implication. Authority for its exercise must be found in statutory grant or requirement. Where the statute provides a particular mode for its exercise, that mode must be pursued, and no other can be substituted for it by the officials who undertake to exercise it. Webster v. People, 98 Ill. 343. The proceeding under the act of June 14, 1897, is a statutory proceeding, and every step provided by the proceeding prior to the passage of the ordinance must be strictly complied with, subject to such qualification as may be contained in section 9 of the act. McChesney v. People, 148 Ill. 221, 35 N. E. 739; City of Alton v. Middleton's Heirs, 158 Ill. 442, 41 N. E. 926.

A resolution was adopted by the board of local improvements on December 27, 1898, providing for the improvement of Clybourn avenue between Division street and North avenue, at a cost of $25,500. A public hearing was held on January 18, 1899, and an improvement, estimated at a cost of $25,500, was considered. Thereupon an ordinance was prepared and submitted to the common council providing for an improvement to cost $25,500, and in reference to which a hearing had been had on January 18, 1899. A petition was then filed in the county court on April 8, 1899, to pay for the improvement, estimated at a cost of $25,500; but this proceeding, after the entry of certain preliminary orders therein, was dismissed on September 12, 1899. The hearing had on January 18, 1899, which was with reference to the improvement estimated at a cost of $25,500, was the only hearing which was had or of which any notice was given. The resolution of December 27, 1898, fixed upon January 18, 1899, as the time for the public consideration of the improvement, estimated at a cost of $25,500. Ten days elapsed after the hearing of January 18, 1899, before the ordinance of March 6, 1899. providing for the improvement at a cost of $25,500, was submitted to the common council. Ten days, however, did not elapse between the adoption of the resolution describing the present improvement and the submission of the ordinance therefor to the common council.

The resolution providing for the present improvement, estimated at a cost of $29,500, is the resolution which was adopted by the board of local improvements on May 17, 1899.

That resolution, as will be seen by a reference to its terms, did not fix any day or hour for the public consideration thereof; nor did it contain any estimate of the cost of the improvement, made in writing by the public engineer over his signature. On the contrary, it merely resolved that the petition then pending in the county court, and which was filed April 8, 1899, providing for this same improvement, should be dismissed, and it directed that the city engineer and the engineer of the board should prepare a new estimate for the improvement, and that a new ordinance should be prepared and sent to the city council, providing for the improvement in accordance with the new estimate, and pursuant to the original resolution theretofore adopted. The new estimate, provided for in the resolution of May 17, 1899, was made five days thereafter, to wit, on May 22, 1899, but was not made a part of the record of any resolution. There was no resolution in which the estimate of the cost at $29,500 was embodied. The new ordinance, which the resolution of May 17, 1899, directed to be prepared and submitted to the council, was prepared and submitted and passed on May 22, 1899, five days after the adoption of the resolution of May 17, 1899, and not ten days after the adoption thereof. The property owners were not allowed to be heard upon the subject of the estimate of the cost of the improvement at $29,500. Section 8 provides that the public hearing shall be had, not only as to the necessity of the proposed improvement and the nature thereof, but also as to the "cost as estimated." Manifestly, the estimate of the cost must be made before the hearing, and the property owners must be allowed to be heard upon the subject of that estimate. Here, an estimate of $29,500 was made, and the property owners were given no opportunity to be heard in reference to it. The resolution of May 17, 1899, should have fixed a day and hour for the consideration of that resolution, which should not have been less than 10 days after its adoption, and that resolution also should have made the estimate of $29,500 a part of itself. Nothing of the sort was done. In reference to these requirements section 7 uses the word "shall." and is mandatory in character. The board was not vested with any discretionary power on the subject. The requirement that the estimate should be made a part of the preliminary resolution was a necessary antecedent to the passage of the ordinance. The omission of the public hearing, the omission of the naming of the time for the public hearing from the resolution, the omission of any reference to an estimate of the cost of the improvement from the resolution, and the submission of the ordinance of May 22, 1899, to the city council, before 10 days had elapsed between adoption of the authorizing resolutien and such submission of the ordinance, cannot be regarded otherwise than as such substantial variances as render the ordinance

upon which this proceeding is based void. Ives v. Irey, 51 Neb. 136, 70 N. W. 961; Landis v. Borough of Vineland, 60 N. J. Law, 264, 37 Atl. 625; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781; Hentig v. Gilmore, 33 Kan. 234, 6 Pac. 304.

Section 9 of the act provides that the "recommendation by said board shall be prima facie evidence that all the preliminary requirements of the law have been complied with, and if a variance be shown on the proceedings in the court, it shall not affect the validity of the proceeding unless the court shall deem the same willful or substantial." An act which is willful is an act which is designed and intentional. The resolution of May 17, 1899, shows, upon its face and by its terms, that the city engineer had made no new estimate in addition to the old estimate of $25,500, and therefore the omission of the new estimate from that resolution could not have been an accident. But, whether the omission of the estimate from that resolution was willful or not, its omission certainly constitutes a substantial variance, because a substantial variance is a real and material variance in distinction from a merely technical variance, and the mandate of section 7 is positive that the estimate "shall" be made a part of such resolution. The notice, which is required to be given in advance of the hearing upon the necessity of the cost of the proposed improvement, is required to contain the substance of the resolution adopted by the board and an estimate of the cost.. Hence the requirement that the estimate shall be made a part of the resolution is for the purpose of enabling the people at the public hearing to discuss intelligently the nature, necessity, and cost of the improvement. The legislature in this act intended that the property owner and taxpayer should have every opportunity to know or learn what improvement his property was to be assessed for, and what such improvement was to cost. Here he was given notice to attend a hearing upon the subject of an improvement that was to cost $25,500, but he was never given an opportunity to attend any hearing upon the subject of an improvement that was to cost $29.500. After the public hearing, on January 18, 1899, the property owners rested under the belief that the street was to be paved at a cost of $25,500, but subsequently the board of local improvements raised the cost $4,000, without giving them a chance to be heard as to an improvement to be made at such a cost.

In cities like Chicago, whose population exceeds 25,000, the act in question does not provide for a petition by the majority of the property owners before the improvement can be made. That safeguard to the rights of the property owners is confined to towns, cities, and villages having a population less than 25.000. In cities whose population is greater than 25,000, the board has power to originate a scheme for local improvements

without a petition. In addition to this, the act clothes the board of local improvements with unwonted power, because, under section 5 of the act, the city council is prohibited not only from passing, but even from considering, any ordinance for a local improvement, unless the same is first recommended by the board of local improvements. The members of that board are appointed by the mayor, and not elected by the people, as are the members of the city council. In view of these extraordinary powers conferred upon the board of local improvements, the requirements as to the preliminary steps to be taken before the passage of an ordinance for the improvement should be strictly enforced. Here the prima facie case made by the recommendation of the board is overcome by proof showing a substantial variance from the preliminary requirements of the law. When the proof showed that no public hearing had been held on this improvement, and that the estimate of the city engineer was no part of the authorizing resolution, the void character of the ordinance was established. Merritt v. City of Kewanee, 175 Ill. 537, 51 N. E. 867. Unless valid ordinance is shown, there is nothing on which a subsequent assessment proceeding can rest. A valid ordinance is the foundation of any improvement by special assessment, and cannot be dispensed with. City of East St. Louis v. Albrecht, 150 Ill. 506, 37 N. E. 934.

a

It is claimed, however, on the part of the appellee, that the objections here under consideration were cured by the motion made by the counsel of the city upon the trial below to reduce the assessment roll pro rata $4,000. It is true that such a motion was made and objected to, and the objection was overruled, and the overruling of the same was excepted to. But there is nothing in the record to show that the assessment roll was actually reduced by the sum of $4,000, and the final judgment of confirmation, which was entered on October 12, 1899, confirms the assessment roll made out upon the basis of a cost of $29,500, and not as reduced in accordance with the motion. But such a reduction, if made by the court upon the motion of the city at the time and under the circumstances under which this motion was made, would not cure the difficulty. The objections which have here been considered were jurisdictional in character, because, the ordinance being invalid for want of a preliminary hearing upon the question of the estimate made by the engineer, the court had no jurisdiction to entertain a proceeding based upon such an invalid ordinance. For the reasons above stated, we are of the opinion that the court erred in not sustaining the objections made by the appellants to the confirmation of the assessment. Accordingly, the judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.

(185 Ill. 37)

BEST BREWING CO. OF CHICAGO v. KLASSEN.

(Supreme Court of Illinois. April 17, 1900.) CORPORATIONS-ACTS WITHOUT THE SCOPE OF CHARTER-ESTOPPEL-APPEAL BOND

--CORPORATION AS SURETY.

1. The signing of an appeal bond by a trading corporation as surety, and the enjoyment of the benefits arising therefrom, will not estop the corporation from making the defense of ultra vires, if such act is not within the scope of its charter.

2. A corporation having authority only to manufacture and sell ale, beer, and porter, and to carry on a general brewing business, cannot be held liable upon its undertaking as surety on an appeal bond, although the inducements to its execution of the bond were to enable the principal to continue in the business of selling beer, and to make further purchases of the corporation.

Appeal from appellate court, First district

Action by Kunigunda Klassen against the Best Brewing Company of Chicago, of debt, upon an appeal bond. A judgment for plaintiff was affirmed by the appellate court (85 Ill. App. 464), and defendant appeals. Reversed.

Blum & Blum, for appellant. F. L. Salisbury, for appellee.

WILKIN, J. This is an action of debt upon an appeal bond. In a forcible entry and detainer proceeding before a police magistrate in the city of Chicago, appellee, as plaintiff, recovered a judgment against Ruel G. Rounds for restitution of certain property. Rounds appealed to the county court of Cook county, filing an appeal bond as required by the statute. This bond was for $2,000, conditioned as provided by statute in such cases, and was signed by Rounds and appellant, as his surety; the latter's execution of it being as follows: "The Best Brewing Company of Chicago [Seal], by Charles Hasterlik, Its President [Seal]." In the county court judgment was again rendered for the plaintiff. Upon the failure of Rounds or the brewing company to comply with the terms of that judgment, this proceeding was commenced in the circuit court of Cook county to recover on the appeal bond. In defense to the action, the brewing company, by its pleadings, denied that the bond was its deed; alleged that the making of the same, as to it, was unauthorized, and that such act was not within the power of the corporation. Issues were joined, and a trial had by jury. At the close of plaintiff's evidence, and again at the close of all the evidence, a motion was made to instruct the jury to find for the brewing company, but these motions were overruled. The court then took the case from the jury, by instructing it to render a verdict for the plaintiff, Klassen, for $1,321.50. This being done. judgment for that sum was duly entered, and appellant appealed to the appellate court for the First district, where the judgment below was affirmed, and it now brings the case here upon further appeal.

The general rule is that a corporation can do only those acts which are within the scope of its charter, and, if the signing of the bond in question as surety was an act not originally within the express or necessarily implied powers of the corporation, it is void, and no subsequent act could make it valid, by way of estoppel. It was so held in National Home Building & Loan Ass'n v. Home Sav. Bank, 181 III. 35, 54 N. E. 619, where the decisions of this court are reviewed; and we there said (page 44, 181 Ill., and page 621, 54 N. E.): "If there is no power to make the contract, there can be no power to ratify it; and it would seem clear that the opposite party could not take away the incapacity, and give the contract vitality by doing something under it. It would be contradictory to say that a contract is void for an absolute want of power to make it, and yet it may become legal and valid as a contract by way of estoppel through some other act of the party under such incapacity, or some act of the other party chargeable by law with notice of the want of power." In that case it is also said: "The cases in this court where the corporation has been held to be estopped have been where the act complained of was within the general scope of the corporate powers." In the case of Brewing Co. v. Flannery, 137 Ill. 309, 27 N. E. 286, relied upon by appellee, the defense of ultra vires was invoked, and it was held that the corporation was estopped to make that defense, inasmuch as it had enjoyed the benefit of the act; but there the act in question (which was the leasing of a building in which to conduct a saloon) was within the express power of the corporation.

We think the primary question here is not whether appellant has reaped a benefit from the act of becoming surety for Rounds upon the bond, but whether the act of signing it was within the scope of its corporate authority. The purpose of the corporation, as expressed in its charter, is to manufacture and sell ale, beer, and porter, and carry on a gen

acts could be more unlike than the doing of those authorized by the charter of the company, and the signing of appeal bonds as surety. The instrument was executed in a suit, not by or against the corporation, but by a third person against another to recover possession of a house. Prima facie, the signing by the company of an appeal bond in such a suit was an act beyond the purpose for which it was organized, and consequently illegal. If it had been shown that it was executed clearly for the purpose of promoting or protecting its own business of brewing or selling beer, etc.,-that is to say, if the act had been reasonably necessary to accomplish the end for which the corporation was formed, it would have been within the scope of the corporate power. But it cannot be held that every act in furtherance of the interests of a corporation is intra vires. Many acts can be suggested, which, though beneficial to the business of a corporation, are too remote from its general purposes to be deemed reasonably within its implied powers. What is and what is not too remote must be determined according to the facts of each case. The rule has been stated to be: In exercising powers conferred by its charter, a corporation "may adopt any proper and convenient means tending directly to their accomplishment, and not amounting to the transaction of a separate, unauthorized business. Clark v. Farrington, 11 Wis. 306. In the case of Lucas v. Transfer Co., 70 Iowa, 541, 30 N. W. 771, 59 Am. Rep. 454, where a corporation chartered for the purpose of doing a "general freight and transfer business, and such other business as may not be inconsistent therewith," was sued upon a bond executed by it as surety with another corporation, the supreme court of that state said: "The plaintiff seeks to recover contribution from the corporation as co-surety on the bond of the brewing company, and claims (1) that the contract of suretyship was within the defendant's corporate powers; and (2) that, if it were not within the defendant's corporate powers, it has so acted on the contract as to now estop it from pleading ultra vires. * * Whatever meaning may be attached to the language of the articles, it is quite certain it cannot include the contract of suretyship in question. The simple act of going security for another is out of the line of the prosecution of any business. It is a mere accommodation, and it cannot be assumed that the articles gave the officers of defendant any power to jeopardize its capital in any such venture." Quoting from other authorities, it is there further said: "It is no part of the ordinary business of commercial corporations, and, a fortiori, still less so of noncommercial corporations, to become surety for others. Under ordinary circumstances, without positive authority in this behalf in the grant of corporate power, ali engagements of this description are ultra