Statement of the case. Knox and State aforesaid, after being duly sworn, says that one Daniel Sullivan, a resident of the city of Oneida, has on hand, for the purpose of sale, within said city, a large quantity of intoxicating liquors, viz: whisky, brandy, rum, and gin, and that the said Daniel Sullivan has been guilty of selling and giving away said liquors within and during the six months last past, in violation of the charter of the said city of Oneida, and the ordinances passed by the city council of said city, in pursuance of said charter; and he prays the court that a warrant be issued by the police magistrate of said city, commanding the city marshal to search the dwelling-house of the said Sullivan and his out-houses situated thereon, in pursuance of section 22 of article 5 of the charter of said city, and that he may be dealt with as the law directs. Subscribed and sworn to before me this 22d day of Decem ber, 1869. (signed) J. A. PRATT, P. M. WARRANT. STATE OF ILLINOIS, COUNTY OF KNOX, CITY OF ONEIDA,} SS: The people of the State of Illinois, to the marshal of said city or any constable thereof, greeting: Whereas, Nathan Coleman hath this day made complaint, on oath, before J. A. Pratt, a police magistrate of said city aforesaid, that one Daniel Sullivan, a resident of said city of Oneida, has on hand, for the purpose of sale within said city, a large quantity of intoxicating liquors, viz: whisky, brandy, rum, and gin, and that the said Daniel Sullivan has been guilty of selling and giving away said liquors within and during the six months last past, in violation of the charter of the said city of Oneida, and the ordinances passed by the city council of said city in pursuance of said charter. Statement of the case. We therefore command you, in pursuance of section 22 of article 5 of the charter of said city, that, with necessary and proper assistance, you enter, in the day time, into the said dwelling-house of the said Sullivan, and his out-houses situated on his premises, and there diligently search for the said spirituous liquors, and if any shall be found upon such search, in quantities over one gallon, that you bring the said liquors before the said police magistrate, to be disposed of according to law. Hereof fail not. In witness hereof, the said police magistrate has hereunto set his hand and seal at the city of Oneida, this 22nd day of December, 1869. And in case you find on the premises of the said Sullivan intoxicating liquors, ale, or beer, in a greater quantity than one gallon, you will take into your custody the said Daniel Sullivan, and forthwith bring him before me, to be dealt with according to law. (signed) J. A. PRATT, [L. s.] And said defendants say that, on said 22d day of December, A. D., 1869, at said city of Oneida, at said county of Knox, said warrant and written directions, issued under the hand and seal of said police magistrate, was by him delivered to said defendant, said George L. Stephenson, then being marshal of said city, to execute, and that by virtue of such warrant and written authority of said police magistrate, the same then and there being in full force and effect, said defendant, George L. Stephenson, as marshal of said city of Oneida, did, on said 22d day of December, A. D., 1869, at said city, and while said warrant was in full force and effect, and by virtue thereof, take the said goods and chattles in said declaration mentioned, being then and there found on the premises of said plaintiff, in said city of Oneida, and did levy upon the same, and did seize or take into custody the same, as the property of Daniel Sullivan, Statement of the case. by virtue of said warrant and writ aforesaid, and by virtue of said process, still remaining in full force and effect, and also arrest said Daniel Sullivan, and did bring said Daniel Sullivan and said liquors and personal property aforesaid, consisting of intoxicating liquors, before said police magistrate, to be dealt with according to law, and did lawfully hold the same by virtue of said writ and process, still remaining in full force and effect, and did lawfully hold said intoxicating liquors and personal property by virtue of said writ and process, as he lawfully might for the cause aforesaid; and while so holding said property to be dealt with according to law, and while said warrant remained in full force and effect, said plaintiff replevied the same by writ of replevin issued in this suit. Said suit aforesaid, before said police magistrate, being then and there still pending and undetermined. Said property and liquor being the same goods and chattels in the declaration mentioned, and being subject to seizure by said defendant, George L. Stephenson, as said marshal, under the writ and authority aforesaid, said property being then the property at the time of such seizure by said defendant, said marshal, of said plaintiff and liable to such seizure, being then and there held in said city of Oneida by said plaintiff, and on his premises, for the purpose of sale of said liquor, and for the purpose charged in said complaint, on oath, upon which said warrant was issued; and said defendants further say that the defendants, Nathan Coleman and Thomas Huston, acted in the aid and at the request of said defendant, Stephenson, said marshal, in taking and detaining said property while he was acting under and by virtue of said writ and warrant in taking and detaining said property as aforesaid, as they lawfully might for the cause aforesaid, which is the same taking and unlawfully detaining, which property was the same goods and chattels, as in said declaration mentioned, and no other; and this the defendants are ready to verify, wherefore they pray judgment, etc. To said pleas four and five, on February 17, 1870, plaintiff filed a general demurrer, which was several to each plea. Statement of the case. Opinion of the Court. Afterward defendants withdrew their fourth plea from the files, and the court overruled the demurrer to the fifth plea, and the plaintiff stood by his demurrer and objected and excepted to the ruling of the court. The cause then went off the docket, and remained off until the December special term, A. D. 1870, when it was redocketed at the instance of the defendants, and a motion made by defendants to correct the record, no notice having been given to the plaintiff. The motion was continued till the February term, 1871, when it was withdrawn, and a motion was entered for final judgment on the fifth plea, which motion the court granted, and entered judgment on said fifth plea for the defendants and against the plaintiff. The plaintiff excepted to the ruling of the court, and to reverse the judgment brings the record to this court. Messrs. CRAIG & HARVEY, for the appellant. Messrs. WILLOUGHBY & GRANT, for the appellees. Mr. JUSTICE THORNTON delivered the opinion of the Court: The ordinance, by virtue of which the property of appellant was seized by the officer, has been pronounced invalid in the opinion in the case of Sullivan v. The City of Oneida, 60 Ill. 242. Appellant, therefore, had the right to recover in his action of replevin. The judgment is reversed and the cause remanded. Judgment reversed. Syllabus. Opinion of the Court. LUCIUS B. OTIS v. THE CITY OF CHICAGO, and LABAN S. MAJOR v. SAME. 1. DELINQUENT TAXES AND SPECIAL ASSESSMENTS—who may apply for judgment therefor—constitutional law. The authority vested in the city collector of Chicago, by virtue of the charter of the city, upon application to the court to obtain an order for the sale of real estate for the payment of delinquent city taxes and unpaid special assessments was abrogated by sec. 4 of article 9 of the constitution of 1870, which requires the legislature to provide, in all cases where necessary to sell real estate for the non-payment of taxes or assessments for State, county, municipal, or other purposes, that a return shall be made to some general officer of the county having authority to receive State and county taxes, and vests in such officer alone, upon the order or judgment of some court of record, the power to sell. 2. And, as held in Hills v. The City of Chicago, 60 Ill. 86, this provision of the constitution went into effect immediately upon the adoption of that instrument, its operation not awaiting the action of the legislature in designating to what general officer the returns should be made. APPEALS from the Superior Court of Cook County. Mr. EDWARD ROBY & Mr. JOHN BORDEN, for the appellants. Mr. M. F. TULEY, for the appellee. Per CURIAM: These cases arise upon the same proceeding. It was an application by the collector of the city of Chicago, at the March term, 1871, of the Superior Court, for judgment upon a special assessment warrant, in a proceeding to widen an alley from Clark Street to La Salle Street-running east |