Edwards v. Pope

• Decision Date: 31 December 1842
• Citation: Edwards v. Pope, 3 Scam. 465, 4 Ill. 465, 1842 WL 3795 (Ill. 1842)
• Parties: Ninian W. Edwards, appellant,v.Nathaniel Pope et al., appellees.
• Court: Illinois Supreme Court

3 Scam. 465

4 Ill. 465

1842 WL 3795 (Ill.)

Ninian W. Edwards, appellant,

v.Nathaniel Pope et al., appellees.

Supreme Court of Illinois.

December Term, 1842.

Appeal from Madison.

Where an injunction to stay a sale of town lots, which were advertised for sale, was granted, and the defendant answered the bill, denying its equity, and stating that considerable expense had been incurred, by advertising the lots for sale, which would be a loss in consequence of the injunction, the court, on dissolving the injunction, decreed that the complainant should pay the amount of said expenses, which were reported by the master at $22: Held, that the decree was not erroneous.^a

Contemporaneous and uniform construction assists in the sound interpretation of constitutions and laws.^b

The legislature may exercise its legitimate powers by enacting either general or special laws.^c

The legislature has no power to inquire into, ascertain or determine whether a widow is entitled to dower in a tract of land; and an act authorizing and requiring certain commissioners to assign to her her dower in certain premises, is null and void, so far as it is a determination that she is entitled to dower therein, it being a judicial determination.^d

A statute is void only so far as its provisions are repugnant to the constitution.

The preamble of a statute is no part of the act; still it may assist in ascertaining the true intent and meaning of the legislature.

Private acts are construed in the same manner as conveyances that derive their effect from the common law; and the court will consider what was the object and intention of the parties in obtaining the act.

Where the legislature passed a special act, the preamble of which recited that divers persons, some known and others unknown, some residents, and others non-residents, were owners of a certain tract of land, and that a partition thereof would be extremely difficult, if not impracticable, and the act authorized any one interested to petition the Circuit Court of the proper county, in behalf of themselves, and all others interested, without naming them, for the sale of said land, and authorized the court, on due proof of the publication of notice of the presentation of said petition, as required in the act, and upon its appearing that a partition of said land would be extremely difficult, if not impracticable, to order the sale of the same, and appoint three disinterested householders of the said county to lay off the same into town lots and streets, and to sell the lots on a credit, and on payment of the purchase money, to make deeds to the purchasers, which deeds were declared to be valid and effectual, to pass to the purchasers respectively, or their assigns, an estate in fee simple to the premises purchased; and the act further provided that the streets should be and forever remain free, public and common highways and streets: Held, that the act was constitutional.

The constitutionality of each special act of the legislature must depend upon its own particular phraseology and provisions.The particular circumstances of the parties applying for, and to be affected by it, must be looked to, as well as their intention, and the intention of the legislature, and the object to be accomplished; and if, from these it be manifest that the legislature has exercised but a remedial power, in enabling parties to do with their own property what they had not power before to do, and has not adjudicated that they should do what they are unwilling to do, the act would be within legislative competency.

This cause was heard in the court below at the August term, 1839, before the Hon. Sidney Breese.The complainant appealed to this court.

S. T. Logan and E. D. Baker, for the appellant.

D. J. Baker, A. W. Jones and N. D. Strong, for the appellees.

SCATES, Justice, delivered the opinion of the court:

The appellant filed his bill in chancery, stating that his father, being seized of an undivided fifth part of a certain tract of land set forth, and of certain lots in the city of Alton, devised the same to him and others, who were his heirs at law; that the said premises have never been divided, though they are divisible; that on the application of Nathaniel Pope, the general assembly of Illinois, at a special session in July, 1837,¹ after reciting that said lands and lots were owned by said Pope, John Reynolds, the heirs of Wm. B. Whitesides, the heirs of Ninian Edwards, and others, and that a division was difficult, enacted that one or more of those interested jointly or in common, might petition the Madison Circuit Court, on behalf of themselves and all others interested, without naming them, for a sale of said lands, and if it should appear to the court, after due notice given, that partition would be extremely difficult, if not impracticable, the court should order a sale, and appoint three commissioners to sell the same, on a credit, on the premises, before the next term of said court.Said commissioners were required by said act to subdivide said tract of land into town lots and streets, declaring that said streets should forever be and remain public highways.Upon payment of the purchase money, said commissioners were to make deeds, which were declared valid and effectual to pass an estate in fee simple, free from the right or claim of all persons interested as joint tenants, or tenants in common.The bill further charges that, at the August term of the Madison Circuit Court, 1838, upon petition of Nathaniel Pope, for a sale, J. B. Hundly, N. Buckmaster, and S. W. Robbins, were appointed commissioners to sell said land and lots, and to perform the duties specified in said act; who failed to sell before the next term of said court.

That upon further application, the general assembly of Illinois passed another special act, by which, amongst other things, it was enacted that said commissioners should be authorized and required to set apart and assign, according to law, to Abial Easton, her dower in and to said lands and lots; and that they should sell the reversionary interest in said dower, lands and lots; and that said sales should be made after due notice given.That said commissioners have laid off said land into lots and streets, and recorded a plat thereof; and have assigned to Abial Easton certain lots as her dower.That they have advertised said lots for sale, part absolutely and part subject to said dower.

Said notice and special acts are made parts of the bill, as well as the proceedings of the court on Pope's petition.

The bill charges that these acts of the legislature are unconstitutional and void; because it is an attempt of the legislature to exercise judicial authority, assuming control over private property, in individual cases, without the consent of the owners; because it is an assumption of judicial authority, to order dower to be set apart to Abial Easton, in those lands, by the commissioners, and to sell them subject to that dower; because the commissioners are directed to lay off streets, and the act declares them to be public highways, without compensation to the owners of the land; because the legislature determines who are the owners of said land.

The bill charges that the lands are divisible, under the general laws now in force, or may be sold.

It also charges that Nathaniel Pope, John Reynolds, Moses Whitesides, Ninian E. Whitesides, and the other heirs of William B. Whitesides, deceased, and others unknown, and Joseph Conway are owners of undivided interests in said land.

The bill prays that all the owners, known and unknown, be made parties, and that upon the hearing, a perpetual injunction be granted, staying all further proceedings by said commissioners and others, under said act, unless it should appear, that all persons interested are capable of consenting, and do consent to such sale.

Nathaniel Pope answered: That he gave due notice of the presentation of his said petition, for eight weeks, in a newspaper in Madison county; that at the August term, 1838, the court ordered a sale of the lands and lots, in compliance with said special acts.He admits that the complainant is interested; that said special acts were passed; and charges that the complainant was a member of the legislature, at the time said acts were passed, and took an active part in passing the first one.He further charges that complainant, defendant, and their co-tenants all derive title from Rufus Easton, whose wife Abial did not unite with him in the conveyance, and that she is the same Abial mentioned in the law.He denies that the property can be divided amongst the co-tenants without great injury; for the reason that its location is only suited for town lots, deriving most of its value therefrom; and also on account of the number and uncertainty in name of those interested.He denies that commissioners appointed by the court, under the general law for partition, could divide the land into town lots, and designate streets for the purpose of sale.He insists that the decree of the court ordering the sale, precludes the complainant from questioning it in this way.He alleges that his petition was presented with the approbation of John Reynolds and others interested.He admits the appointment of commissioners; that they surveyed the land, and laid it off into lots and streets, and advertised it for sale.He charges that they incurred great expense; prays a reference to a master to take an account thereof; that the injunction be dissolved; the bill dismissed; and for his costs and charges, and the expenses of the commissioners.

Buckmaster and Hundly answer, and admit their appointment, the survey, and division into lots, and advertising to sell; deny that they assigned dower to Abial Easton; charged that they have incurred considerable expense; offered to exhibit an account thereof, and pray their costs.

It was agreed, between the parties, that Mrs. Easton did not relinquish her...