RIGHT OF WAY. ASSESSMENT OF DAMAGES.
evidence; and they should never be told that they have or have not the
right to average the testimony, without explanation. Peoria & Rock
Island Railway Co. v. Birkett, 332.
17. A jury, in assessing damages for right of way, have no right to
take the gross amount as sworn to, and divide it by the number of the
witnesses to obtain the result of their verdict, unless there is afterward
full and free consultation, and their judgment assents to it, uninflu-
enced by any previous agreement. Ibid. 332.
RULE IN SHELLY'S CASE. See WILLS, 28 to 33.
EVIDENCE IN AN ACTION THEREFOR. See EVIDENCE, 20, 21.
SHELLY'S CASE, THE RULE IN. See WILLS, 28 to 33.
OF THE QUESTION OF MALICE.
1. The law implies malice from the publication of actionable words,
but this implication may be explained and rebutted by the circum-
stances. Zuckerman v. Sonnenschein, 115.
2. In a suit for slander it is error to instruct the jury that if the de-
fendant used words imputing a crime, they must find for plaintiff, when
the words were spoken under circumstances tending to show a want of
malice. In such case the intent of the publication should be left to the
jury under the proof. Ibid. 115.
3. When words imputing the commission of a crime are used by the
defendant merely for the purpose of translating the language of another
from the German into the English language at the request and for the
information of an attorney at law in a matter of business, the law will
not infer malice in the defendant. Under such circumstances the use
of the words may properly come within the range of privileged commu-
nications. If there was malice in fact it must be left to the jury to be
found from the evidence. Ibid. 115.
LANDS NOT ADJOINING IMPROVEMENT.
1. Whether subject to special assessment. Under the act of 1854, pro-
viding the mode of collecting assessments of cities and towns for cer-
tain purposes, the corporate authorities of towns have the power to
assess real estate for benefits it may derive by ditching and tilling a
street, although it may not adjoin the ditch. Goodrich v. City of Mi-
nonk, 121.
UNIFORMITY OF ASSESSMENT.
2. On application for judgment against certain land for the sum að•
UNIFORMITY OF ASSESSMENT. Continued.
sessed for benefits from improving a ditch near the same, the owner ob-
jected that other land through which the ditch passed was not assessed,
and offered to prove that such land was benefited by the ditch: Held,
that proof that such other land was benefited by the original ditch was
irrelevant, the assessments being made only for leveling and improv-
ing the same. Goodrich v. City of Minonk, 121.
3. Of making the assessment. On an application for judgment in favor
of the city of Chicago, by the city collector, against lands to enforce
collection of a special assessment made for the purpose of widening a
street, no competent proof of the notice of making the assessment ap-
peared in the proceedings put in evidence, nor was there any extrinsic
proof of such fact: Held, that the want of such proof was fatal to the
judgment on appeal. Honore v. City of Chicago, 305.
PROOF OF NOTICE BY COMMISSIONERS.
4. Of the manner thereof. The act of 1854, relating to assessments by
cities and towns, authorizes the town or city council to fix by ordi-
nance or resolution the time and kind of notice of assessments; and
when a town ordinance prescribed the form and kind of notice, and re-
quired the commissioners to attach to the assessment roll an affidavit
of the giving of such notice, it is not error to receive such affidavit in
evidence to prove the posting of notices of the meetings of the commis-
sioners. Goodrich v. City of Minonk, 121.
5. Of the certificate. The certificate of publication of the commis-
sioner's notice of their meeting to make a special assessment in the
city of Chicago, and of the notice of application for confirmation of the
assessment, is fatally defective if it omit to state the dates of the first
and last papers containing such notices, or language equivalent
thereto. Brown et al. v. City of Chicago, 106, 289; Marsh et al. v. City of
Chicago, 115.
NOTICE OF APPLICATION FOR JUDGMENT.
6. In this case it was objected that the collector's notice of the ap-
plication for judgment was deficient, in not stating that an order of sale
would be asked. There was, however, personal notice to the land owner
of the application for judgment, and he appeared and filed objections.
This was held sufficient to give the court jurisdiction. Goodrich v. City
of Minonk, 121.
WHO MAY APPLY FOR JUDGMENT.
7. Under the new constitution. The authority of a city collector to
apply for judgment on special assessments is abrogated by the new con-
stitution. Brown et al. v. City of Chicago, 106; Marsh et al. v. City of
Chicago, 115.
Also, see TAXATION, 13, 14, 15.
SPECIAL ASSESSMENTS. Continued.
OF A PRIOR ASSESSMENT, IN BAR.
8. On application for judgment against certain lots to enforce col-
lection of a special assessment for opening a street, it was urged that the
ordinance under which the assessment was made, was void on account
of a prior proceeding for opening the street, and making an assessment
therefor, which was claimed to be valid. The lot owner did not show
that a warrant had ever issued on the first assessment: Held, that he
should have introduced the record, showing that the first assessment
was in conformity with the statute; because if there was not a valid
confirmation of a valid assessment, it was not conclusive upon the city.
Forsythe v. City of Chicago, 304.
OF A PREVIOUS OPENING OF A STREET.
9. As a defense against an assessment for opening it. Upon the applica-
tion of the city collector of Chicago for judgment upon a special assess-
ment warrant for the opening of a certain street, sixty-six feet wide,
under an objection to the recovery of the judgment, evidence was intro-
duced showing that the same street had been opened to the width of
sixty feet, with a ditch on both sides, for the period of three years be-
fore the proceedings: Held, that this constituted, prima facie, a defense.
Follansbee v. City of Chicago, 288.
BY WHOM TO BE DETERMINED.
10. Validity of an ordinance in that regard. Under the law on the sub-
ject of special assessments in the city of Chicago, for public improve-
ments, the responsibility of prescribing what improvements shall be
made, and the mode, manner, and extent of them is upon the common
council. An ordinance which undertakes to vest in the board of public
works the discretion of determining either the mode, manner, or extent
of an improvement is void. Walker v. City of Chicago, 286.
DESCRIPTION OF PROPERTY IN THE ORDINANCE.
11. Upon the application of the collector of the city of Chicago for
judgment upon a special assessment warrant, it was objected that the
ordinance condemning the land did not contain a sufficient general de-
scription of the property. The land was described as "lot 8 and the
north ten feet of lot 9 in block 93 of Elston's addition to Chicago, in ac-
cordance with the plan hereto annexed." The north line of lot 9 did
not run due east and west, but in such a manner as to form an obtuse
angle at its center, and the portion of lot 9 sought to be condemned, as
shown by the plan attached to the ordinance, was indicated by running
a line parallel with the north line of the lot, and at a distance of ten
feet from it. The description in the ordinance was held sufficient.
City of Chicago v. Habar et al. 283.
12. Whether affected by deficiency in the original proceedings. Where the
ordinance of a city ordering the improvement of a street was valid, and
SPECIAL ASSESSMENTS. OF A NEW ASSESSMENT. Continued.
it appeared that the commissioners appointed to estimate the total ex-
pense to be assessed upon the real estate deemed specially benefited,
and that chargeable upon the general fund, acted within their jurisdic-
tion in making their report and estimate of the cost of the work, and
the assessment failed only for want of proper notice for confirmation, it
seems that such report and ordinance may be adopted in a new proceed-
ing, by a proper reference, which conforms as near as may be in man-
ner to that required for a first assessment. Burton et al. v. City of Chi-
cago, 179.
EVIDENCE-COLLECTOR'S DELINQUENT LIST.
13. On application for judgment by a city for special assessments,
the court received in evidence the collector's delinquent list: Held, no
error, as the delinquent list is nothing more than the officer's return,
which he makes under his official oath, and is conclusive evidence of
the facts which he is required to state in it. Goodrich v. City of Minonk,
121.
14. It is also competent to prove by the city clerk that such assess-
ments have not been paid since the return to him of the collector's war-
rant, but it seems not necessary, as the fact of payment should be shown
affirmatively by the land owner. Ibid. 121.
NECESSITY OF A PROPER OBJECTION.
15. To admit evidence. In an application for a judgment upon a
special assessment in the city of Chicago, the objector offered to prove
that no notice had been given of the application for confirmation of
the assessment, as required by the city charter: Held, as no such objec-
tion had been filed, the evidence was properly excluded. Jerome v. City
of Chicago, 285.
DISCRETION AS TO FILING OBJECTION.
16. At the hearing. And upon objection that the court below erred
in refusing to allow such objection to be filed on the hearing, it was
held, that that was a matter resting in the discretion of the court, and
as there was no affidavit upon which the application to file it was based,
this court could not say that the discretion had been abused. Ibid.
285.
SPECIFIC PERFORMANCE. See CHANCERY, 15 to 19.
SUPPRESSION OF THE SALE THEREOF.
1. And search of premises. The charter of the city of Oneida, in
Knox County, empowers the city council to declare the selling, giving
away, or the keeping on hand for sale of any spirituous or intoxicating
liquors, etc., within the city, a nuisance. An ordinance of said city
SPIRITUOUS LIQUORS. SUPPRESSION OF THE SALE THEREOF. Con-
tinued.
which authorized a search of dwelling-houses, etc., and the seizure of
all liquors when found in a greater quantity than one gallon, etc.,
whether the intention was to sell them in the city, or ship them and
sell elsewhere, was held to be void. Sullivan v. Stephenson et al. 290.
CONSTITUTIONAL MODE OF PASSAGE.
1. Majority required on receding from an amendment. A bill for an act
entitled "An act to increase the jurisdiction of justices of the peace
and police magistrates," printed in the Session Laws of 1871, was reg-
ularly passed in the house of representatives. In the senate an amend-
ment was adopted of matters not embraced in the title, and the bill as
amended was passed by the constitutional majority on the call of the
ayes and noes. The house refusing to concur in the amendment, the
senate, by a vote of 23 to 16, receded from the amendment, which was
all the action had on the bill by the senate. The senate consisted of
50 members, a majority of whom were necessary to the passage of a
law: Held, that the bill never became a law. The People ex rel. v.
De Wolf, 253.
CONSTRUCTION OF STATUTES.
2. Whether to be given a retrospective effect. The intention must bo
clearly expressed that a statute should retroact upon prior contracts
and rights, before this court will so construe it. If the intention be
doubtful, the construction will be that it operates prospectively only.
Hatcher v. Toledo, Wabash & Western Railroad Co. 477.
3. The rule as to strictness of construction. Statutes conferring power
to impose taxes are strictly construed. But where property is charge-
able with taxes, and it is simply a question of which of two companies
or persons, the one having the general property and the other a quali-
fied one and using the same, shall pay the same, no reason is perceived
for the application of the rule of strict construction. Kennedy v. St.
Louis, Vandalia & Terre Haute Railroad Co. 395.
4. Consolidated railroad companies-liability for debts of the original
companies act of 1867 construed in Hatcher v. Toledo, Wabash & Western
Railroad Co. 477. See RAILROADS, 1.
5. Homestead-exemption from sale under judgment in a criminal prosecu-
tion against the husband. Acts of 1851 and 1857. Loomis v. Gerson, 11.
See HOMESTEAD, 1.
6. Right of way-condemnation therefor-constitution of 1870 and act of
1852. The People ex rel. v. McRoberts, 38. See RIGHT OF WAY, 1
to 8.
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