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3. A statute provided that when a city builds a sidewalk a bill of its cost shall be filed in the office of the clerk of the city as a basis for a special tax therefor. An ordinance declared that the entire cost of a sidewalk should be paid by special taxation of the abutting lots, according to their frontage, and that, if the city should build the walk, a bill of cost should be filed with the city clerk, 15 days after its completion. Held, that a bill of costs filed before the sidewalk was completed was premature and invalid.

Error to Coles county court; John P. Harrah, Judge.

Application by the people, on the relation of D. C. Gannaway, county collector of Coles county, for judgment against the lots of Isaac B. Craig in the city of Mattoon for a special tax levied by such city for a street improvement. Isaac B. Craig filed objections to the application. From an order overruling such objections, and from a judgment for the sale of the lots, he brings error. Reversed.

James W. & E. C. Craig and Isaac B. Craig, for plaintiff in error. Anderson Stewart, City Atty., and John F. Voigt, Jr., State's Atty., for defendant in error.

CARTWRIGHT, J. The county court of Coles county overruled objections to the application of the county collector of said county for judgment against lots of plaintiff in error in the city of Mattoon for a special tax levied by said city to pay for a concrete cement sidewalk on the north side of Shelby avenue, on which the lots abutted, and rendered judgment for sale of the lots. The ordinance for the construction of the sidewalk was passed April 30, 1900, under the provisions of the act to provide additional means for the construction of sidewalks, in force July 1, 1875. 1 Starr & C. Ann. St. 1896, p. 857. It provided that the entire cost of the sidewalk, and all expenses, should be paid by special taxation of the lots or parcels of land along the line of the sidewalk according to their frontage thereon, and that the sidewalk should conform to the general sidewalk ordinance of the city. The general sidewalk ordinance so referred to and made a part of the ordinance for this sidewalk, provided that a permanent grade should be established in the street covered by any special ordinance for a sidewalk before work thereunder should be required to be performed. Said ordinance for the construction of this sidewalk allowed to the owners 30 days after its publication to build the sidewalk in front of their respective lots or parcels of land, as provided by said statute, and required that the entire space of the walk should be excavated to the depth of 14 inches below the established grade of the street, and the sub-grade should then be rolled and tamped until such sub-grade presented a smooth and regular surface, in strict conformity with the grade established, and the sidewalk should be built thereon as specified in the ordinance. 61 N.E.-68

Plaintiff in error did not build the sidewalk in front of his lots, and the city undertook the construction of it. It was shown on the hearing that no grade of said street had ever been established. Before the city commenced work, the city engineer set stakes for the grade at which the sidewalk was built, but no ordinance was ever passed establishing a grade.

It is not necessary that the ordinance for a local improvement should recite the ordinance establishing the grade. Parker v. Village of La Grange, 171 Ill. 344, 49 N. E. 550. Reference to the established grade of a street to be improved, which has been established by another ordinance, is a sufficient specification of the grade. Claflin v. City of Chicago, 178 Ill. 549, 53 N. E. 339. But a street grade can only be established by an ordinance of the city. Chicago & N. P. R. Co. v. City of Chicago, 174 Ill. 439, 51 N. E. 596; Shannon v. Village of Hinsdale, 180 Ill. 202, 54 N. E. 181. Where an ordinance requires an improvement that is to be paid for by special taxation to conform to an established grade, the tax will not be legal in the absence of an ordinance establishing such grade. Brewster v. City of Peru, 180 Ill. 124, 54 N. E. 233. Plaintiff in error proved that upon a search of the records of the city no ordinance fixing the grade of this street could be found, and the city did not undertake to prove the existence of any ordinance.

The act under which the city attempted to levy the tax provides for a special tax list to be prepared by the city clerk and filed in his office, and that warrants shall be issued by him for the collection of such tax. The warrants are to be returned to the city clerk within 60 days from the date of their issue, and the city clerk is then required to make a report, in writing, of the special tax uncollected, to the general officer of the county authorized by law to apply for a judgment against and sell lands for delinquent taxes. When said general officer shall receive said report, he is directed to proceed to obtain judgment against the lots or parcels of land for the special tax remaining due and unpaid. In this case the city clerk issued warrants to the city collector, but no return of such warrants was ever made to the city clerk and he did not make any report to the county collector. The city collector, on April 29, 1901, sent to the county collector a copy of the warrants and list issued to him by the city clerk. It was not accompanied with a certificate of the clerk, or his affidavit, or a copy of the ordinance ordering the construction of the sidewalk. There was a complete failure to comply with the statute, and the county collector made his application without any report by the city clerk. The warrant issued by the clerk cannot be substituted for the report required by the statute. Hoover v. People, 171 Ill. 182, 49 N. E. 367. On the hearing the county court allowed a copy of the ordinance and a certificate and

affidavit of the city clerk to be filed. It is insisted by the defendant in error that this was permissible under section 191 of the revenue act, providing for amendments, corrections, and supplying omissions upon application for judgment. 3 Starr & C. Ann. St. 1896, p. 3470. That section does not permit an essential step provided for by statute in the levy of a tax to be taken for the first time on the application for judgment. The officer authorized by law to make a report to the county collector as a basis of the application for judgment never made any such report, and there was nothing to amend or correct. The warrants issued for the collection of the tax had never been returned to the city clerk, and the property could not be said to be delinquent, under the law, until that return was made.

The provision of the statute is that, when a city builds a sidewalk, a bill of its cost shall be filed in the office of the clerk of the city as a basis for the special tax. The ordinance in this case provided that the entire cost and expenses should be paid by special taxation of lots abutting on the walk, according to their frontage, and that if the city should build the walk, the city engineer should, within 15 days after its completion, file such bill of its cost in the office of the city clerk, duly certified. The evidence was that the sidewalk was not completed when the bill of cost was filed, nor at the time of the application for judgment. As the entire cost of the whole walk was to be apportioned to the lots according to their frontage, it could not have been ascertained at that time. No certified bill of the cost of the sidewalk could be made before it was completed, when the city engineer attempted to file such bill with the city clerk. The objections should have been sustained.

The judgment of the county court is reversed, and the cause is remanded. Reversed and remanded.

(193 Ill. 537)

KING et al. v. LAMON et al.

BOGGS, J. This was a bill in chancery exhibited by the appellants for a decree declaring a mechanic's lien in their favor, as contractors, under the act approved June 26, 1895 (Hurd's Rev. St. 1899, p. 1104), and for the enforcement of such lien by a sale of the premises to which the bill prayed the lien should be declared to attach. The circuit court in which the bill was filed, on a hearing on bill, answer, replication, and proofs, awarded a decree as prayed; but on appeal the appellate court for the Third district reversed the decree and remanded the cause, with directions to dismiss the bill. This appeal seeks a reversal of the judgment of the appellate court.

In Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055, we held that under the mechanic's lien act approved June 26, 1895, where the contract relied upon as the basis for the lien is in writing, no lien can be enforced unless the contract provides for the time of completion of the work and of making final payment therefor. In Kelley v. Trust Co., 190 Ill. 401, 60 N. E. 585, we were asked to reconsider the ruling made in the case of Freeman v. Rinaker, supra, but upon thorough re-examination of the point we declined to recede from that decision, and reaffirmed the correctness of the construction there given the statute in question. The bill in the case at bar alleged that the contract under which the materials were furnished and the labor performed for which the lien was sought was in writing, and made a copy thereof, which was attached to the bill as an exhibit, a part of the pleading. The written contract contained no provision as to the time within which the work was to be performed or the money to be paid therefor. The bill did not allege that any time had been fixed or agreed upon for the completion of the work or for the payment of the money. The answer contains no admission upon the point. The record contains no proof bearing upon either of these points, and there is no recital in the decree touching upon them or either of them. The decree establishing the lien is therefore not warranted by the bill, the

(Supreme Court of Illinois. Dec. 18, 1901.) proofs preserved in the record, or the recitals

MECHANICS' LIENS-WRITTEN CONTRACT-DECREE RECORD-TERMS OF CONTRACT. Where, on appeal from a decree establishing a mechanic's lien, under Hurd's Rev. St. 1899, p. 1104, the record shows the contract was in writing, but there is no recital in the decree nor evidence to show that the contract fixed the time for completion of the work and final payment, as is requisite to a lien where the contract is written, the decree will be reversed.

Appeal from appellate court, Third district. Suit by T. A. King and others against May Lamon and others. From a decree reversing a decree in favor of complainants (91 Ill. App. 74). defendants appeal. Affirmed.

Isaac A. Love and W. R. Jewell, for appellants. D. D. Evans and G. M. McDowell, for appellees.

of the decree.

The rule which governs in the review of decrees in chancery, on appeal, is that the decree must be justified by the facts which it specifically recites or by evidence preserv ed in the record, and if the facts necessary to uphold the action of the court in granting the decree are not preserved in either of these modes the decree will be reversed on appeal or writ of error. James v. Bushnell, 28 Ill. 158; Bank v. Baker, 161 III. 281, 43 N. E. 1074. The appellate court, therefore, did not err in reversing the decree in the case at bar.

It affirmatively appeared from the bill, the written contract being a part thereof, and from the evidence preserved in the record, that the appellants were not entitled to a

lien, and for that reason the appellate court properly directed the dismissal of the cause. The judgment of the appellate court is affirmed. Judgment affirmed.

(193 Ill, 153)

C. H. ALBERS COMMISSION CO. v. SESSEL.

(Supreme Court of Illinois. Dec. 18, 1901.)

ACTION AGAINST DECEDENT'S ESTATE-EVI

DENCE-DEPOSITIONS-OBJECTIONS.

Where the testimony is given in the form of depositions, in an action on a claim against a decedent's estate, the failure to object to the competency of a witness as a party interested when the depositions are taken will not preclude objection thereto on the trial.

Appeal from appellate court, Third district.

Action by C. H. Albers Commission Company against Marcus Sessel, executor of the estate of Peter J. Hendgen, deceased, on a claim against the estate of defendant's de cedent. The claim was allowed in the county court, but disallowed in the circuit court. From a judgment of the appellate court (87 Ill. App. 378) affirming the judgment of the circuit court, plaintiff appeals. Affirmed.

Joseph S. Lawrie, for appellant. E. W. Hayes and Bell & Burton, for appellee.

WILKIN, C. J. This litigation arose in the county court of Macoupin county on a claim filed by appellant against the appellee as executor of Peter J. Hendgen, deceased. The claim was in the form of an account for moneys advanced and commissions earned in the purchase and sale of grain by plaintiff from and to third parties for the deceased during his lifetime, as his agent and under his directions, to the amount of $1,743.03. The claim was allowed in the county court, but on appeal to the circuit court by the executor it was disallowed, and judgment given for the defendant for the costs of suit. That judgment having been affirmed by the appellate court for the Fourth district, the claimant prosecutes this appeal.

The appellee executor has filed cross errors questioning the ruling of the circuit court in admitting certain depositions in evidence over his objection. The same cross errors were assigned in the appellate court, but there overruled.

The only evidence offered in support of the claim in the circuit court was in depositions. C. H. Albers, president of the claimant company, a corporation organized under the laws of the state of Missouri, and a stockholder in that company, testified that he was personally acquainted with the deceased during his lifetime, and had knowledge of the dealings by the company on his account; that the balance stated was due and unpaid; that he rendered an account to Hendgen, who admitted that it was just and correct, but claimed that he was unable to pay the same in full at once, as he was with

out means, and dependent entirely for a living upon his earnings as an insurance broker or agent, in which business he was engaged in the city of St. Louis, but agreed to pay what he could as he could, and proposed to the witness to deduct his commissions from insurance on grain placed by him for the company, and let the same be credited upon said indebtedness from time to time; that this proposition was accepted, and thenceforth, from time to time, up to the date of the last credit, January 8, 1894, Hendgen made such payments out of his commissions, and the same were credited on the indebtedness. He also testified that he took the deceased at his word when he stated he had no means, and knew nothing to the contrary until after his death, when he learned he had left an estate in Illinois. The bookkeeper of the claimant company, also a stockholder in the company, in his deposition testified to substantially the same facts and to conversations or statements made by the deceased during his lifetime; also the deposition of a salesman of the corporation, William P. Hazard, likewise a stockholder in the company. These depositions were taken in the city of St. Louis some time prior to the hearing upon the claim in the county court, counsel for the executor being then present, but making no objection to the competency of the testimony. Upon the trial in the circuit court, upon the offer of the claimant to introduce those depositions, appellee objected upon the ground that each of said witnesses was incompetent to testify in the cause because each was a stockholder of the claimant corporation, and defendant was executor of the last will of the deceased, Hendgen, but the court overruled the objection, and permitted the depositions to be read to the jury.

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Section 2 of chapter 51, entitled "Evidence and Depositions" (2 Starr & C. Ann. St. 1896, p. 1824), provides: "No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section [being section 1], when any adverse party sues or defends as the trustee or conservator of any idiot, or as the executor, administrator, heir, legatee or devisee of any deceased person, * unless when called as a witness by such adverse party so suing or defending." We have held that stockholders in a corporation are interested within the meaning of this section of the statute, and are incompetent to testify against the representatives of a deceased party in their own behalf. Thrasher v. Railroad Co., 25 Ill. 393; Machine Co. v. Keifer, 134 Ill. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688. In fact, it is conceded by the parties that neither of the above-named witnesses was competent to testify in this case, and that the admission of their testimony would have been re

versible error but for the fact, as is claimed, that the objection was waived by a failure to urge it upon the taking of the depositions; and in support of this contention Moshier v. Knox College, 32 Ill. 155; Frink v. McClung, 4 Gilman, 569; Kelsey v. Snyder, 118 Ill. 544, 9 N. E. 195; Kassing v. Mortimer, 80 Ill. 602; and Cooke v. Orne, 37 Ill. 186,-are relied upon. It will be found, however, upon an examination of these cases, that the last two are not in point, and that in the first two the question arose between living parties as to a common-law incompetency of the witnesses, which could have been removed by other evidence, or by the act of the witness releasing his interest. Kelsey v. Snyder was a bill against the administrator of an estate and the heirs of the intestate to declare and enforce a resulting trust in the deceased, and it was there held that the complainant was not competent to testify in her own behalf as to transactions and conversations with the deceased in his lifetime. We there said (page 549, 118 Ill., and page 196, 9 N. E.): "The adverse parties defend as administrator and heir at law of Ira F. Benson, deceased, and it is not denied that the evidence objected to falls within the second section of the statute in relation to evidence and depositions (Rev. St. 1874, p. 488), and would have been inadmissible if the objection had been interposed in apt time; but counsel contends that the objection should have been taken at the time of the taking of the depositions, and that it was too late to urge it for the first time on the trial in the circuit court; and in support of this he cites Frink v. McClung, 4 Gilman, 569; Goodrich v. Hanson, 33 Ill. 498; and Warren v. Warren, 105 Ill. 568. The objection to a witness on account of interest might at common law be obviated upon the trial by the execution of an instrument having the effect to release that interest, and hence it was required, as held in the cases cited, that an objection on account of interest should be made at the earliest opportunity, so that the party calling the witness might have time, if possible, to obviate the objection by release or otherwise. In Warren v. Warren no objection was taken on the hearing; but this rule did not apply as to objections that were incurable, as, for instance, that the evidence was irrelevant. Lockwood v. Mills, 39 Ill. 602. And the philosophy of the rule is stated in Clauser v. Stone, 29 Ill. 114, 81 Am. Dec. 299. It is not possible that appellant could, by any act of the court or of herself, have been rendered competent to testify as to the matters to which the present objection goes. She is no worse off, the objection having been urged upon the trial, than she would have been had it been urged at the time of taking the deposition. She is absolutely disqualified to testify as to those matters." In Clauser v. Stone, supra, it was said: "The general rule is unquestionably, as stated by the appellee's counsel, that ob

jections on the trial to a paper or other evidence must be specially pointed out, so that they may be obviated, if possible; but this rule applies only to cases where the objection can be removed by evidence, or by the act of the party under the sanction of the court, or by the action of the court itself,"citing Jackson v. Davis, 5 Cow. 123, 15 Am. Dec. 451, and Harman v. Thornton, 2 Scam. 355.

Section 7 of the chapter on "Evidence and Depositions" expressly provides: "In any civil action, suit or proceeding, no person who would, if a party thereto, be incompe tent to testify therein under the provisions of section 2 or section 3, shall become competent by reason of any assignment or release of his claim made for the purpose of allowing such person to testify." Manifestly, under the provisions of this section, as said in Kelsey v. Snyder, supra, these witnesses were absolutely disqualified to testify to the facts sworn to by them, and the objection to their depositions was in apt time at the trial of the case. Not only is the rule that in such a case an objection to the competency of witnesses may be made upon the trial supported by the rule announced in Clauser v. Stone and Kelsey v. Snyder, supra, but by the plainest principles of justice. The administrator merely defends in his fiduciary capacity. His testator being dead, his version of the transaction and conversations between himself and these witnesses cannot be obtained, and if this claim can be properly allowed upon their evidence the estate must be held liable upon testimony which it was wholly beyond the power of the executor to explain or contradict. The object of sections 2 and 7 of the statute was to place parties litigant upon an equal footing, as we have frequently held. No hardship would have resulted to the claim ant if the objection had been sustainedFirst, because the incompetency of the witness was absolute and could not have been removed; and, second, if it could be said to have been taken by surprise in not having an opportunity to procure other competent evidence of its claim, it could have asked, and upon a proper showing obtained, a continuance of the case to enable it to produce, upon the final hearing, other competent testimony.

The trial court erred in holding that the objection came too late, and the appellate court erred in refusing to sustain the cross errors. The substance of the errors assigned by the appellant is that the judgment below is contrary to the weight of the evidence, and that the court erred in giving and refusing instructions. Having erroneously admitted the depositions of interested parties in support of the appellant's claim, and it having offered no other evidence to establish the same, none of these errors can be sustained. So far from the verdict and judgment of the trial court being unsup

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1. In a jury trial of issues of fact arising on a petition for mandamus to compel the mayor and council of a city to admit children of African descent to the public schools, an instruction requiring the jury to find for defendant, if they believed that children were assigned to different schools by the proper authorities, and that they had a legal right to make such assignment," was erroneous, because submitting a question of law.

2. Where an issue of fact as to whether the children of relator had been discriminated against, and excluded, because of their color, from a certain school, or from the most convenient school in the city where they lived, was certified to the circuit court for trial, a special interrogatory as to whether the jury believed that equal and reasonable educational facilities were furnished children of school age, irrespective of color, was erroneously submitted; the interrogatory being broader than the issue certified, and apt to lead the jury to believe that, if equal educational opportunities were elsewhere provided, relator's children might be lawfully excluded from the school most convenient to their home.

3. Where children of African descent, who had formerly attended a certain school, which was near their residence and attended by white and colored children alike, were excluded therefrom immediately upon the establishment of schools exclusively for colored children, and required to attend the latter, no reason for such exclusion other than their color being alleged, a finding that such children had not been discriminated against, or excluded from the most convenient school, on account of their color, was contrary to the evidence.

Ricks, J., dissenting.

Mandamus by the people, on the relation of Scott Bibb, against the mayor and common council of the city of Alton, to compel respondent to admit the children of relator to the most convenient school in said city, without discrimination on account of color. A special issue of fact as to such discrimination was certified to the circuit court for trial by jury, and from a finding in favor of respondents, relator appeals. Reversed.

John J. Brenholt, for relator. L. D. Yager, Corp. Counsel, E. P. Glass, and Bradshaw & Hilskoetter, for respondents.

HAND, J. This is an original petition filed in this court by the people, upon the relation of Scott Bibb, for a writ of mandamus against the mayor and members of the com

mon council (naming them) of the city of Alton to compel them to admit the children of the relator, viz. Minnie Bibb and Ambrose Bibb, to the Washington school, or the most convenient public school of said city, to which they have the right to be admitted, without discriminating against or excluding them, or either of them, therefrom on account of their color. The respondents filed an answer to said petition, to which answer the petitioner filed pleas, and issues of fact were made thereon as to whether said Minnie Bibb and Ambrose Bibb, or either of them, had been discriminated against and excluded, on account of their color, by the respondents, from the Washington school, or the most convenient public school of said city, to which they have the right to be admitted, which were certified by this court to the circuit court of Madison county for trial; and upon a trial in that court the jury found the issues for the respondents, and, the verdict and proceedings of that court having been certified to this court, said verdict was set aside, and the circuit court of Madison county was directed to submit said issues to another jury (People v. City of Alton, 179 III. 615, 54 N. E. 421); and, the issues having been by said court submitted to another jury, the proceedings in that court, including the verdict of the jury, have again been certified to this court.

The verdict was in favor of the respondents, and it is insisted by the relator the same should be set aside, and said issues submitted to another jury, for the following reasons: First, the court misdirected the jury as to the law; second, the first special finding submitted to the jury on behalf of the respondents is broader than the issues certified to said court for trial; third, the verdict is contrary to the law and the evidence.

The court gave to the jury, on behalf of the respondents, the following instruction: "The court instructs you that if you believe, from the evidence in this case, the children of lawful school age in the city of Alton were assigned to different schools by the proper authorities, and that they had a legal right to make such assignment, without discrimination as to color, then your verdict should be for the defendants." This instruction is erroneous, in submitting to the jury a question of law, by permitting them to pass upon the powers of the city council with reference to the assignment of the school children to the different schools of said city, without the aid of the court. We have repeatedly held it reversible error for the court to give instructions which require the jury to find and determine legal propositions. Mitchell v. Town of Fond du Lac, 61 Ill. 174; Byers v. Thompson, 66 Ill. 421; Henderson v. Henderson, S8 Ill. 248; Austine v. People, 110 III. 248.

The court, upon behalf of the respondents, submitted to the jury the following interrog.

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