ecutors should be charged with interest the amount would have been sufficient to pay the judgments and interest in full. A fraudulent grantee who has received property for the purpose of hindering and delaying the creditors of the grantor is chargeable with interest on the value of such property. (Steere v. Hoagland, 50 Ill. 377; Murphy v. Loos, 104 id. 514; Deimel v. Brown, 136 id. 586; Felt v. Bell, 205 id. 213.) The circuit court apparently regarded the holding of the court that Dove should account for the sum remaining after deducting from the $9000 purchase price the items mentioned, as fixing the amount for which the decree should be rendered. This is not a correct interpretation. The amount so fixed merely ascertained the excess in value of the property for which the executors were required to account. The law fixed the liability to pay interest on such amount when ascertained, and the interest was incidental to and a part of such amount as much as interest is incidental to and a part of the amount due upon a judgment or an instrument of writing though not mentioned. The holding of the Appellate Court required payment only so far as required “to pay appellant's judgments and costs,” yet it could hardly be contended that payment of interest on the judgment was not required. The decree should have required the payment of interest upon the amount ascertained from the time it was received by Dove.

The decree required each party to pay half the costs, and this is assigned as error. While the costs in chancery are in the discretion of the court, yet that discretion is subject to review, and in this case we do not regard an equal division as equitable. The plaintiff in error succeeded on the main issue. While evidence was introduced bearing on transactions with and conveyances to defendants other than Dove, such evidence was competent for the purpose of proving Montgomery's fraudulent design and Dove's knowledge thereof. The costs incurred which were unnecessary to the successful prosecution of the suit against Dove were comparatively small, and in our judgment the plaintiff in error should not be charged with more than one-fifth of the costs.

The judgment of the Appellate Court will be reversed and the cause will be remanded to the circuit court of Shelby county, with directions to enter a decree requiring the executors (defendants in error) to pay to the plaintiff in error $2240.66, with five per cent interest from February 27, 1901, but not exceeding the amount of the judgments of the plaintiff in error, with interest and costs, and to pay four-fifths of the costs, the remaining one-fifth of the costs to be paid by the plaintiff in error, and all of such payments to be made in due course of administration.

Reversed and remanded, with directions.

Mr. JUSTICE FARMER, dissenting :

In my opinion the circuit court followed the directions given it by the Appellate Court. It may be those directions were wrong, but the circuit court was bound to follow them, and if there was any error it was the error of the Appellate Court and not of the circuit court.



Opinion filed February 25, 1911Rehearing denied April 6, 1911. the enforcement of the water-rate ordinance, alleges the rate to be unjust and unreasonable, it has the burden of proving that fact.

1. MUNICIPAL CORPORATIONSwater rates fixed by ordinance must be just and reasonable. Under the act of 1891 (Laws of 1891, p. 85,) the maximum rate fixed by ordinance to be charged by any individual, company or corporation authorized to supply water to a city and its inhabitants must be just and reasonable, and the question whether such rate is reasonable or unreasonable may

be reviewed and determined by the circuit court.

2. SAME—water rate fixed by ordinance is presumed to be reasonableburden of proof. Where a city council has exercised its judgment and fixed a maximum rate to be charged for water such rate must be presumed to be just and reasonable, as it is required to be by the statute; and if the water company, in a bill to enjoin

3. Samewhen water company must prove unreasonableness of water rate by showing actual results. Where the water-rate ordinance, the enforcement of which is sought to be enjoined, has been in force a sufficient length of time before the proofs are closed to enable the complainant company to prove actual results by showing earnings and expenses such proof should be made, and the question of the reasonableness of the rates should not be left to be determined from opinions and probabilities, in connection with facts existing when the ordinance was passed.

4. Same--what does not estop a water company from insisting that water rate is too low. The fact that a water company brings a suit against a city to collect a water bill at the rate which the city has itself fixed by ordinance does not estop the company from insisting the rate is unreasonably low and should not be enforced.

APPEAL, from the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of Lake county; the Hon. CHARLES H. DONNELLY, Judge, presiding

Cooke, Pope & Pope, for appellant.

GEORGE E. CHIPMAN, for appellee.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

On January 9, 1905, the city council of the appellee, the 'city of Lake Forest, passed an ordinance fixing the rates for water furnished to the city and to private consumers, and the rental for meters, which might be charged and collected by the appellant, the Lake Forest Water Company, which was furnishing water to the city and private consumers under the provisions of an ordinance passed in December, 1890, granting to the water company the right to erect, maintain and operate, for a period of thirty years, a waterworks system in said city and to furnish water to the city and its inhabitants. On August 12, 1905, the water company filed the bill in this case in the circuit court of Lake county, alleging that the rates prescribed by the ordinance were unjust, unreasonable and insufficient to afford reasonable compensation to the company for the service rendered, and praying the court to declare the ordinance void and to enjoin the city from enforcing it and the rates therein provided. The city answered the bill, denying that the rates were unreasonable. A replication was filed, and on February 1, 1906, the cause was referred to a special master in chancery to take and report to the court the evidence of the parties. On June 20, 1906, the special master proceeded to take the evidence, and continued the taking of the same, from time to time, up to March 24, 1908, when the evidence was closed, and on June 1, 1908, the special master reported the same to the court. Afterward the court heard the evidence so taken and reported, and on October 7, 1908, entered a decree finding that the rates fixed by the ordinance were not just and reasonable and adjudging the ordinance to be inoperative, illegal, null and void. By the decree the ordinance was set aside and annulled and the city was permanently enjoined from enforcing its provisions. The city appealed from the decree to the Appellate Court for the Second District, and that court reversed the decree and remanded the cause to the circuit court, with directions to dismiss the bill without prejudice to the right of the water company to file another bill if the actual income derived under the ordinance should at any time prove to be so inadequate as not to produce a fair and reasonable return for the service rendered. The Appellate Court granted a certificate of importance and allowed an appeal to this court, and the record has been brought here from the Appellate Court for review.

The act in force July 1, 1891, (Laws of 1891, p. 85,) provides that the corporate authorities of any city, town or village in which any individual, company or corporation has been authorized by such city, town or village to supply water to such city, town or village and the inhabitants thereof, are empowered to prescribe, by ordinance, maximum rates and charges for the supply of water furnished by such individual, company or corporation to such city, town or village and the inhabitants thereof, such rates and charges to be just and reasonable. In case the corporate authorities of any such city, town or village shall fix unjust and unreasonable rates and charges, the same may be reviewed and determined by the circuit court of the county in which such city, town or village may be. The rates are required to be just and reasonable, and the city council having exercised its judgment and fixed certain rates, they are presumed to be just and reasonable. When the water company by its bill alleged that the rates were unjust and unreasonable it assumed the burden of proving the fact. (McCook Water

Works Co. v. City of McCook, 124 N. W. Rep. 100.) The evidence consisted of proof from the books of the water company of the cost of construction of the water system, which was originally completed in December, 1891, and the cost of subsequent extensions and improvements and the operating expenses and income prior to the passage of the ordinance. The other legitimate evidence consisted of the estimates and opinions of four expert hydraulic engineers, two of whom testified on each side as to the value of the system, the different elements to be taken into consideration in fixing rates which would yield a fair income from the property, and the probable operating expenses and income under the rates fixed by the ordinance. In 1900 there had been negotiations between the water company and the city, which resulted in the company reducing its maximum rate to private consumers to twenty cents for each 1000 gallons of water furnished. In 1902 there was some friction between the water company and the city about the extension of mains, under the provisions of the original ordinance, into outlying and unprofitable territory, but the rate for private consumers remained the same until

2 4 9 - 25

« ForrigeFortsett »