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Additional opinion of the Court.

In the case of Dwen v. Blake, 44 Ill. 132, this court held, and it is certainly a reasonable rule, that the parties having deliberately given the transaction all the forms of a sale, slight, indefinite or unsatisfactory evidence should not be permitted to change its character. It should only be by proof which clearly shows that the intention of the parties was, that it should be a mortgage and not a sale. To the same effect is the case of Taintor v. Keyes et al. 43 Ill. 332.

We are satisfied, from the evidence in the record, and must so hold, that the deeds conveyed an absolute and indefeasible estate to the grantee, Mrs. Karnes.

The bill was therefore properly dismissed, and the decree is affirmed.

Decree affirmed.

JUSTICES MCALLISTER and THORNTON dissent.

After the original opinion was filed in this case, appellant filed a petition for a rehearing, which was granted. A rehearing was had, and the following additional opinion was filed:

Per CURIAM: A petition having been filed, a rehearing in this cause was allowed. We have again fully considered the case, and a majority of the court are still of opinion that the bill was properly dismissed, and the decree should be affirmed. We have, therefore, caused the original opinion to be refiled, as the opinion of the majority of the court.

Decree affirmed.

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1. SPECIAL ASSESSMENT oath of commissioners. Where a special assessment was made for the improvement of a street in a city, it is not an objection to the validity of the assessment that the commissioners took the oath required by the city charter, and also superadded other clauses not inconsistent with the oath required by the charter, or any of its provisions.

2. NOTICE-publication—city newspaper. Where the city charter required the common council to designate a newspaper in which notices and the proceedings of the corporation should be published, it appeared that such notices and proceedings were published in a particular paper, and it was recognized by the officials as the corporation newspaper,—a certificate of publication given by the publisher, was offered in evidence: Held, that such facts, as to the public, and third persons, were prima facie evidence that the paper had been designated as the corporation paper, and the appointment need not be proved by producing the record showing the ap pointment; that it is similar to proof that a person has acted as a public officer, which is prima facie, without producing his commission.

3. FORMER DECISIONS-awarding compensation, when private property is. taken for public use. The determination of what is "just compensation" for private property when taken for public use, is a judicial act, which can properly be performed only by the judicial department of the government, and former decisions of this court holding the award in that regard, of persons not of the judicial department, such as the commissioners of the board of public works in the city of Chicago, to be conclusive, are overruled.

4. CONSTITUTION-eminent domain-trial by jury. Where a city charter gave to the common council, and the board of public works, power to

*This case, and the following twenty-one cases, are all considered in the same opinion:

Trustees of Wabash Avenue Baptist Church v. City of Chicago; Snoad v. Same; Hoxie v. Same; Pearce v. Same; W. Davidson v. Same; Christ Church v. Same; Otis v. Same; J. I. Pearce v. Same; Kellogg v. Same; E. L. Davidson v. Same; Loomis v. Same; Larmon v. Same; Little v. Same; Whittaker v. Same; Mason v. Same; Spaulding v. Same; Traynor v. Same; Frisbee v. Same; Frank v. Same; Thomas v. Same; Larned v. Same.

Syllabus.

assess damages on the condemnation of land for the widening of a street, and it was objected that the act was unconstitutional, because the owner was deprived of a jury: Held, that as the court had, in previous decisions, sustained the law, the rule stare decisis must be applied, and as the constitution of 1870 requires a trial by jury in all future cases, the question is not of any practical importance to determine whether a jury was indispensable, and that rights acquired under former proceedings should be protected.

5. ASSESSMENT-benefits. But the proceeding to assess the damages growing out of the opening of the street, is not obnoxious to any constitutional objection. The charter makes it indispensable for a sale of real estate for the payment of such an assessment, that a judgment of some court of general jurisdiction be had upon the warrant. The acts of the commissioners may be considered ministerial, and as the means by which the proceedings instituted are to be brought before the court, and for that purpose are valid. All questions pertaining to the damages sustained or benefits conferred by the condemnation of land, or other property, for public use, may be raised and tried in the court where judgment is sought on the

warrant.

6. ORDINANCE-validity of. Where such an improvement is proposed, and it is not petitioned for by a majority of the owners of property to be assessed, the charter declares that it shall be ordered only by the votes of at least three-fourths of all the aldermen present, such vote to be by ayes and noes on the record of the common council. And if, when the record is presented, it does not appear that the improvement was ordered by a vote of three-fourths of the aldermen present, and the vote was not cutered by ayes and noes: Held, that the ordinance is void, and judgment for a sale of the property to pay the assessment, can not be rightfully entered.

7. NOTICE-publication—certificate. Where there was published a notice of application for a confirmation of the assessment, and the publisher certified that the notice had been published six days consecutively, excepting Sundays and holidays, giving the date of the first but not the last publication: Held, the certificate was too indefinite, and was insufficient.

8. CONVENING order. When a record is presented to this court ou error, it should have a placita, that it may appear that the record presents the proceedings of a court.

APPEALS from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. EDWARD ROBY, for the appellants.

Mr. M. F. TULEY, city counsel, for the appellee.

Opinion of the Court.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

These cases purport to arise upon proceedings instituted by the corporate authorities of the city of Chicago, for the condemnation of land, in order to widen Michigan Avenue from Twenty-second to Thirty-second street, in the city.

Application was made at the March term, 1870, of the Superior Court of Chicago, for judgment upon the collector's report, and judgment ordered, from which an appeal was taken to this court.

The questions presented, which we propose to consider, being common to all of the cases, they will, consequently, all be treated as one case.

The first point made, questions the sufficiency of the oath taken by the commissioners. The 6th section of chapter 7, of charter, (Gary's Laws 1866, p. 62,) declares that, "before proceeding to make said assessment, the commissioners shall be sworn faithfully to execute their duties according to the best of their ability."

The oath which was taken, not only contains the very language just quoted, but goes further, and specifies certain duties, but not all, which they were required to perform in the premises. These specifications being consistent, as far as they went, with the oath which they were required to take, can not vitiate the proceeding.

The second objection is, that it was not sufficiently shown that the newspaper in which certain notices were claimed to have been published, had been duly designated as the corporation newspaper.

There was, at least, prima facie evidence that the "Chicago Republican," the paper in question, was the corporation newspaper. The charter, in every instance except one, where notices are required to be published, says, that they shall be published in the "corporation newspaper." This paper was conducted as the corporation newspaper, and the fact seems to

Opinion of the Court.

have been notorious. All official acts of the city, required to be published, had, for a long period of time, been published in it; so that, as affecting the public and third persons, proof that the paper in question was conducted notoriously as the corporation newspaper, and so recognized by the city authorities, was prima facie sufficient without introducing the resolution of the council designating it as such.

All rules of evidence are adopted for practical purposes in the administration of justice, and must be so applied as to promote the ends for which they were designed. Wherefore the general rule, that the best evidence of which the case, in its nature, is susceptible, must be produced, is subject to exceptions where the general convenience requires it. "Proof, for example, that an individual has acted notoriously as a public officer, is prima facie evidence of his official character, without producing his commission or appointment." 1 Greenlf. Ev. sec. 83.

The third objection assails the foundation of the entire proceeding, and is one of a graver character. The appellants' counsel insists, that the judgments should all be reversed, on the ground that the provisions of the city charter, relative to the taking of private property for public use, are unconstitutional and void, because they purport to vest the board of public works and the common council of the city of Chicago with authority to inaugurate proceedings, in their discretion, for taking such property; to determine all preliminary facts, and fix the compensation to be made; to effectuate, by their own acts, the condemnation of the property of the citizen, and divest him thereof; and their decision is made final and conclusive. This, it is claimed, is the exercise of judicial authority, which, by the division of the powers of the government by the State constitution, is expressly prohibited to all departments of the government not belonging to the judicial; neither the board of public works nor common council can be said to belong, in any sense, to the judicial department.

19-59TH ILL.

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