Opinion of the Court. Syllabus.

cumstances which would constitute a justification, are left to the determination of the jury. Now we can not see which the jury followed; and we can see that if they followed the latter, it must have operated to appellant's prejudice, and accounts for the verdict which they returned. In this there was error; for the errors indicated the decree of the court below is reversed and the cause remanded for further proceedings, in conformity to this opinion.

Decree reversed.

CHARLES G. MAURO

v.

WESLEY PLATT.

1. ADMISSIONS—weight as evidence. It is not true that, under all circumstances, admissions of a party are weak evidence; sometimes they are the strongest and most satisfactory species of evidence. It is the province of the jury to weigh such evidence, and give it the consideration to which it is entitled; and in case of a conflict the court has no right to tell the jury that an admission is a weak kind of evidence.

2. SAME. Where the authority of one to employ the plaintiff as an attorney was disputed, and the evidence on that point conflicting, and it was proved by two witnesses that they were present and heard defendant authorize the employment of plaintiff, the circuit court instructed the jury that, while it was competent for plaintiff to show the admissions and statements of defendant, as tending to show his liability, yet the law regards such admissions as a weak kind of evidence: Held, that the instruction was erroneous, because the testimony was not of admissions, but of an important fact, and in such a case it was for the jury alone to determine the weight of the evidence.

APPEAL from the Circuit Court of Morgan County; the Hon. C. D. HODGES, Judge, presiding.

Messrs. MORRISON & WHITLOCK, for the appellant.

Opinion of the Court.

Messrs. BROWN & EPLER, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, for services as an attorney and counselor at law in the defense of John Platt, charged with a felony, and tried and acquitted in the criminal court of the city of St. Louis.

It was in proof by John B. Higdon, another attorney of that court, that he was employed by John Platt to defend him, and that his brother, Wesley Platt, the appellee herein, authorized him to employ appellant to assist him in the defense. Under that authority he employed appellant, he having fully stated to appellee the reasons why he wished appellant to be associated with him. Appellee told him to get him, by all means; appellant made a successful defense for John Platt, and, on failure of appellee to pay him, brought this suit.

Both John Platt and Wesley Platt contradict Higdon, and testify they nor either of them ever authorized or requested him to employ appellant.

John Kinsella, a witness for appellant, testified he was present on a certain occasion, and does not know appellee employed appellant in person to defend his brother, but he does know that he authorized John B. Higdon to employ him. Higdon's health was bad at the time.

Appellant testified he was employed by Higdon, he professing to act by express authority of appellee.

Lawrence, the magistrate before whom John Platt was brought, testified that appellee in his presence authorized Higdon to retain appellant, and that he would pay the bill; that others had recommended Madill, but Higdon preferred appellant; that appellee instructed Higdon to employ such counsel to defend his brother, and that he would pay for the services.

Under this state of the evidence the court, at the instance of appellee, gave the jury this instruction :

"The court instructs the jury, for the defendant, that while

Opinion of the Court.

it is competent for the plaintiff to introduce in evidence the admissions and statements of the defendant in this case tending to show his liability to the plaintiff, yet the law also regards such admissions as a weak kind of evidence, owing to the liability of persons testifying to admissions to be mistaken, or misunderstand the statements of such person whose admissions are offered as evidence."

The evidence, as it stood, and it was legitimate evidence, slightly preponderated in favor of appellant. For the court to tell the jury that his evidence consisted of admissions of defendant, and was weak evidence, was wrong; for, in the first place, the witnesses did not testify to admissions, but to a fact, and an important one, and that was the authority given by appellee to Higdon to employ appellant as counsel in the cause.

The court, in this instruction, perverted the evidence, or, rather, misnamed it, and then told the jury it was weak evidence. It by no means is true that, under all circumstances, admissions are weak evidence. Sometimes they are the strongest and most satisfactory species of evidence. It is the pecu

liar province of the jury to weigh the evidence, and give to it the consideration to which it is entitled. Where it is conflicting, it is not proper for the court to throw its weight against one of the parties by telling the jury his evidence is weak. By so doing, the province of the jury is invaded, and, if exception is taken, must reverse the judgment. Frizzell v. Cole, 42

Ill. 362.

For this error the judgment is reversed and the cause remanded.

Judgment reversed. ·

THE PEOPLE ex rel.

v.

JOSEPH B. BARGER, county clerk, etc.

1. CONSTITUTIONAL LAW-exemption from taxation. The first section of the ninth article of the charter of Shawneetown, in terms, purported to ex

Syllabus.

empt the inhabitants of that city from all State taxes for the period of twenty years, and required the levy of a tax, by the city, on the property of the inhabitants, equal to the tax released by the State, to be used exclusively in constructing a levee to protect the city from overflow: Held, that so far as the section exempted the property of the inhabitants from State taxes, it was clearly in conflict with the second section of the ninth article of the constitution of 1848, and therefore void.

2. SAME. The mere fact that the city council was authorized to levy a tax equal in amount to the State tax released, for local improvements, does not change the material fact of an attempt to release the right of the State to tax the inhabitants for State purposes; and the tax for levee purposes is in no sense a State tax.

3. SAME-power of legislature to exempt. Under the constitution of 1848, the legislature had not the power to exempt a portion of the inhabitants of the State in any locality from State taxes, and impose the entire burden upon the remaining portion.

4. SAME-commutation of taxes. The case of the Illinois Central R. R. Co. v. County of Mc Lean, 17 Ill. 291, holding that a commutation of taxes in that case was constitutional, is based upon the principle that the proportion of the earnings of the company required to be paid to the State in lieu of taxes, was equal to the burden of the taxes released. The case can be supported on no other principle.

5. But when the State receives nothing in consideration for releasing the inhabitants of a city from State taxes, and the tax imposed in lieu thereof is purely for local purposes, in which the people of the State at large have no benefit, it can not be regarded as a commutation.

6. SAME-exemption for charitable purposes. The words "charitable purposes," in the third section of the ninth article of the constitution of 1848, which provides that "the property of the State and counties, both real and personal, and such other property as the general assembly shall deem necessary for schools, religious and charitable purposes, may be exempt from taxation," will not be construed to include the building and construction of a levee for the protection of the private property of the citizen. Under this clause, the right to collect a State tax in a locality can not be released for a series of years, and an equal tax collected to build a levee by a city in lieu thereof.

Mr. W. BUSHNELL, Attorney General, for the people.

Mr. A. D. DUFF, for the respondent.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The first section of article nine of the charter of Shawnee

Opinion of the Court.

town, in terms, purports to exempt the inhabitants of that city from all State taxes for a period of twenty years. Private Laws 1861, p. 272.

The respondent, who is the county clerk of Gallatin County, acting under this law, refused to extend the State tax for the year 1871. It is claimed, on behalf of the relators, that this section of the city charter is in conflict with the constitution of the State, and therefore void. The object of this proceeding is to compel the respondent to extend the State tax for the year 1871 on the property of the inhabitants of said city.

The counsel for the respondent suggests two inquiries: first, does the charter, when tested by the fixed rules of interpretation and construction of statutes, exempt the inhabitants of the city of Shawneetown from taxation? And, second, if they are so exempted, is such exemption a plain and obvious violation of the constitution?

Reluctant as we always are to hold any law enacted by the general assembly to be unconstitutional, we feel constrained to return an affirmative answer to both of these questions.

The words used in the act under consideration, have no doubtful meaning, and if taken and considered in their ordinary and legal meaning, they will bear no two constructions. It is expressly provided that the "inhabitants of said city are hereby exempt from State tax for twenty years." The plain and obvious meaning of the words used is, that the State, by this act of the general assembly, undertook to release its right to tax the inhabitants of said city for State purposes for a period of twenty years. The terms used to express that intention are unambiguous, and if the general assembly possessed the constitutional power to create such exemption, they would doubtless be effective for that purpose.

It is conceded by counsel, that this section will bear this construction, unless its meaning is aided by the context. By the same section, the city council is authorized and required to levy annually a tax on the property of the inhabitants of said city equal in amount to the "tax which would have inured