[2-4] Neither do we see any justification, under the settled rules of construing statutes, for holding that the act of June 29th, is invalid in so far as it conflicts with said act of June 10th. It has always been a maxim in the construction of statutes that where two acts are seemingly repugnant they should be so construed, if possible, that the later may not operate as a repeal of the former by implication. Town of Ottawa v. County of La Salle, 12 Ill. 339. In all such cases, if a construction can reasonably be given by which both acts will stand, it will be adopted. Hunt v. Chicago Horse & Dummy Railway Co., 121 Ill. 638, 13 N. E. 176; Trausch v. County of Cook, 147 Ill. 534, 35 N. E. 477;

park purposes in cities of less than 50,000 with said act of June 10, 1915. We know of population was originally enacted May 13, no reason for holding that the law as amend1907. Laws of 1907, p. 432. By amendment ed by the act passed June 29, 1915, will only June 26, 1913, a three mill tax was substitut-apply in municipalities where such emergency ed for the two mill tax. Laws of 1913, p. 169. existed. We can conceive of no way as to The present act as amended, here under con- how proof could be made in which municipalisideration, attempted for the first time to ties such emergency did actually exist. control and limit the tax rates. The original act concerning the levy and extension of taxes of June 10, 1913, was first enacted May 9, 1901 (Laws of 1901, p. 272), and made no specific mention of park taxes. This act was amended March 29, 1905 (Laws 1905, p. 365), providing, among other things, that in reducing tax levies "the rate per cent. of the tax levy for city purposes, exclusive of library, school and park purposes, shall not be reduced below a rate of $1.80 on each $100 assessed value" (section 2). As amended on June 14, 1909 (Laws of 1909, p. 323) this law retained the provision for the tax, exclusive of library, school, and park purposes, in cities having a population of less than 150,000, but permitted the reduction Northern Trust Co. v. Palmer, 171 Ill. 383, of the rate to $1.20 on the $100 valuation. 49 N. E. 553; Village of East Springfield v. While this law was in force this court decid- City of Springfield, 238 Ill. 534, 87 N. E. ed in People v. Cairo, Vincennes & Chicago 349; People v. Raymond, 186 Ill. 407, 57 N. E. Railway Co., 248 Ill. 554, 94 N. E. 138, that 1066. Where it is impossible to give efthe park tax for the city of Pana, in Chris- fect to both acts, the latest in point of time tian county, might be levied in addition to will prevail. Ayres v. City of Chicago, 239 $1.20. This act as amended May 20, 1913 Ill. 237, 87 N. E. 1073; People v. Freeman, (Laws of 1913, p. 517), made the same provi- 242 Ill. 152, 89 N. E. 667; Huston v. Newsion as to excluding the park tax before gass, 228 Ill. 575, 81 N. E. 1127. It has been reducing the corporation taxes and authoriz- held that between two acts in conflict, one ing the tax to be levied (in addition to park passed later, but going into effect earlier, taxes) at a rate of $1.20 on the $100 on the will prevail over one passed earlier, but going assessed valuation. While this law was in into effect later (1 Lewis' Sutherland on effect this court decided in People v. Cleve- Stat. Const. [2d Ed.] § 280; Dewey v. City land, Cincinnati, Chicago & St. Louis Rail- of Des Moines, 101 Iowa, 416, 70 N. W. 605; way Co., 267 Ill. 160, 107 N. E. 801, that a Dowty v. Pittwood, 23 Mont. 113, 57 Pac. three mill park tax under said Park Tax Law 727; McLaughlin v. Newark, 57 N. J. Law, as it then existed was authorized in cities 298, 30 Atl. 543); and it has also been held having a less population than 50,000, there that an act going into effect immediately will being then no requirement in either of these prevail over an act passed before it, but going laws in reference to a vote of the people be- into effect later. Belding Land & Improvefore levying the tax. Said amendment of ment Co. v. City of Belding, 128 Mich. 79, 87 June 10, 1915, of the act concerning the levy N. W. 113; Heilig v. City Council of Puyaland extension of taxes did not in any way lup, 7 Wash. 29, 34 Pac. 164. It is clear that change the law with reference to the levying the emergency act of June 29th was passed and extension of park taxes in cities of less and approved later than the act of June 10, than 150,000 population. Said park levy tax 1915, and therefore it is the last act of the amendment of June 29, 1915, was passed as Legislature. Under the well-settled rules of an emergency act, and went into force at construction the latest action of the Legislaonce. The tax levy extension amendment ture must be held controlling if the two acts was approved on June 10, 1915, and went in- cannot be harmonized. to force July 1, 1915. Said last-named act does not require a vote to levy a park tax in excess of $1.20 on the $100 valuation in any city of less than 150,000 inhabitants.

The Tax Levy Extension Act in no way refers to the amount of taxes that may be levied for park purposes. While the Park Act since it was first enacted in 1907 has [1] It is the contention of counsel for ap- always fixed the amount of levy for park pellant that as said act of June 29, 1915, was purposes in cities of less than 50,000, before passed as an emergency act it should only the amendment of said act of June 29, 1915, apply to those municipalities with a popula- there was no attempt by said Park Act to tion of less than 50,000 where such emergency fix the rate in any way with reference to the existed, and if that is not the construction to other taxes of the city or county. By the be put upon it, this court ought to hold that act of June 29, 1915, it was in terms provided it was invalid so far as it was inconsistent that this tax may be levied in excess of the

thereby.

22(3), 32(4)—APPEAL BOND

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. 88 46-51, 81; Dec. Dig. 22(3), 32(4).] 5. CONSTITUTIONAL LAW 43(2)

BOND ESTOPPEL.

APPEAL

regular annual tax for the municipality, | 4. ESTOPPEL as provided in the Revenue Law (Cities and RECITALS. Villages Act [Hurd's Rev. St. 1915-16, c. 24] to say that it is a nullity, or question the truth One signing an appeal bond cannot be heard art. 8), but that this levy in excess of that of its recitals that the appeal was obtained tax in cities and villages over 1,500 and under 50,000 could only be made if authorized by a vote of the people. If this provision of the Park Act be given any force, it certainly provides that in cities and villages between those two limits of population there must first be a vote of the people in its favor. In order that the three mill tax for park purposes may be levied in excess of the city taxes, as provided in said act of June 10, 1915, in cities and villages of over 1,500 and less than 50,000 population, there must therefore be a vote of the people authorizing such tax. In cities of less than 150,000 and over 50,000 the act of June 10, 1915, alone governs as to the limitation of park taxes in excess of the other city taxes.

The judgment of the county court must therefore be affirmed.

Judgment affirmed

(276 Ill. 177)

MOSES v. ROYAL INDEMNITY CO. (No. 11007.)

(Supreme Court of Illinois. Dec. 21, 1916.) 1. COURTS 219(8)—SUPREME COURT OF ILLINOIS-CONSTITUTIONAL QUESTION.

A case cannot be brought by appeal or writ of error directly to the Supreme Court as involving the validity of a statute, unless the record shows that the question was in some way presented to the trial court for its decision. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 547, 553; Dec. Dig. 219(8); Appeal and Error, Cent. Dig. § 111.] 2. COURTS 219(9) SUPREME COURT OF ILLINOIS-CONSTITUTIONAL QUESTION-SUFFICIENCY OF PRESENTATION BELOW.

Upon appeal from the Chicago municipal court on judgment on a bond given under Municipal Court Act (Hurd's Rev. St. 1915-16, c. 37, 286) § 23, to stay execution upon judgment in such court, such appeal being on the ground that the constitutionality of said section 23 was involved, the record sufficiently showed the presentation of the constitutional question to the trial court, where, although appellant's motion and affidavit did not in terms question its constitutionality, appellant's affidavit of merits stated that the trial court was without power or jurisdiction to stay the execution and that therefore the bond was without consideration and null and void, since under this objection the constitutionality of the section might have been raised in the trial court.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 553; Dec. Dig. 219(9); Appeal and Error, Cent. Dig. § 111.]

3. ESTOPPEL 18-ACTION ON APPEAL BOND

-DEFENSES.

Generally, by executing an appeal bond and thereby obtaining the contemplated benefits pending the disposition of the appeal, the parties may estop themselves from asserting certain defenses to liability upon the bond; the appellant having obtained by such bond all that he stipulated for therein.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. § 24; Dec. Dig.

18.]

Where appellant, bringing error to review a judgment in the Chicago municipal court, voluntarily executed a bond under Municipal Court Act, § 23, to stay execution on the judgment against it, the bond reciting its consideration, and thereby secured such stay for review, appellant and his surety were estopped to deny the binding obligation of the bond on the ground that said section 23 was unconstitutional, since, the giving of such bond not being prohibited or contrary to public policy, it was a common-law obligation.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. 43(2).] 6. COURTS190(10)—APPEAL BOND-DELIVERY.

Nor in such case could appellant raise the objection that the bond was invalid because never delivered to plaintiff or any person for plaintiff's use, but was filed with the clerk of the municipal court as provided by such statute, since, appellant being estopped to question the constitutionality of the statute, the statute must

There is no precise or set form in which the delivery of an appeal bond must be made, in the absence of a statutory provision governing it.

[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. §§ 2064, 2070; Dec. Dig.
387(1).]

8. APPEAL AND ERROR 387(1)
BOND-DELIVERY.

APPEAL

The essence of the question whether there has been a delivery of an appeal bond consists in the intent of the obligor to perfect the instrument and to make it at once the absolute property of the obligee, and where there is such intent, coupled with acts or words evincing the same and showing the intention to consummate and complete the bond and to part absolutely and unconditionally with it and the right over it, it will be given legal existence, although not personally delivered by the obligor to the obligee.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2064, 2070; Dec. Dig. 387(1).]

Appeal from Municipal Court of Chicago; Wm. N. Gemmill, Judge.

Action by Albert Moses against the Royal Indemnity Company. From a judgment in the municipal court of Chicago for plaintiff, defendant appeals. Affirmed.

Lawton & Peterson, of Chicago, for appellant. Samuels & Samuels, of Chicago, for appellee.

CARTER, J. This was a suit brought by appellee in the municipal court of Chicago against the Royal Indemnity Company and

Lazar Jacobsohn upon a bond of $1,000, to consideration for the bond in the case at bar stay execution on a judgment obtained by ap- is stated in the bond itself, and the obligors pellee in the municipal court of Chicago not only received the full consideration of the against Lazar Jacobsohn for $500 and costs stay of execution, but also the opportunity of suit. A writ of error was sued out from of having the said judgment reviewed in the the Appellate Court to review such judgment | Appellate Court, which resulted in a judgin the municipal court, and the bond in ques-ment against appellant, as set forth in the tion was filed, under the provisions of sec- statement of claim. This is not denied in tion 23 of the Municipal Court Act, to stay any way on this record by appellant. The execution upon said judgment for ninety | bond was voluntarily executed, the effect of days. The Royal Indemnity Company first which was to stay the proceedings on the filed a motion to strike appellee's statement judgment. This was sufficient legal considerof claim on the ground of its insufficiency. ation. The general rule is that by executThis motion was overruled, and thereafter ing such a bond, and thereby obtaining the the company filed an affidavit of merits, contemplated benefits pending the disposition which on motion of the appellee was strick- of the appeal, the parties may estop themen. The company elected to stand by such selves from asserting certain defenses to liaaffidavit, and the court gave judgment for bility upon the bond; the appellant having $500 and costs for appellee on default. This obtained by such bond all that he stipulated appeal was taken by the Royal Indemnity for therein. 4 Corpus Juris, 1269, 1270, and Company directly to this court from that cited cases. In the case of Daniels v. Tearjudgment on the ground that the validity of ney, 102 U. S. 415, 421, 26 L. Ed. 187, a quessection 23 of the Municipal Court Act is tion similar to that raised here was involvinvolved. ed. It was conceded there that the law in question was unconstitutional. The court

[1, 2] It is insisted in the brief of counsel for appellee that the validity of section 23 of the Municipal Court Act cannot be raised here because the question was not raised on the trial in the municipal court and was not covered by the assignment of errors in this court. Masonic Fraternity Temple Ass'n v. City of Chicago, 217 Ill. 58, 75 N. E. 439; Griveau v. South Chicago City Ry. Co., 213 Ill. 633, 73 N. E. 309. Since appellee's brief was filed, counsel for appellant have obtained leave from this court to assign errors here raising the constitutional question. A case cannot be brought by appeal or writ of error directly to this court as involving the validity of a statute unless the record shows that the question was in some way presented to the trial court for its decision. Lee County v. Commissioners of Highways, 164 Ill. 574, 45 N. E. 983; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. McGrath, 195 Ill. 104, 62 N. E. 782; Cummings v. People, 211 Ill. 392, 71 N. E. 1031. Nothing is found in the motions or affidavit of merits that questions, in terms, the constitutionality of said section 23 of the Municipal Court Act. The affidavit of merits, however, filed by appellant, states, among other things, that the trial court was without power or jurisdiction to stay said execution and that therefore said bond was without consideration and null and void. Under that objection the constitutionality of said section might have been raised in the trial court (Wolf v. Hope, 210 Ill. 50, 70 N. E. 1082; Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. [N. S.] 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; Shepherd v. City of Sullivan, 166 Ill. 78, 46 N. E. 720), and counsel for appellant insist that it was so raised.

[3-5] In our view of the law as applied to this case we do not deem it necessary to consider or decide whether section 23 of the Municipal Court Act is unconstitutional. The

said:

"It is well settled as a general proposition that where a party has availed himself cannot, in a subsequent litigation with others for his benefit of an unconstitutional law, he not in that position, aver its unconstitutionality as a defense. In such cases the principle of estoppel applies with full force and conclusive effect.'

See, also, Stevenson v. Morgan, 67 Neb. 207, 93 N. W. 180, 108 Am. St. Rep. 629; Board of Children's Guardians v. Shutter, 139 Ind. 268, 34 N. E. 665, 31 L. R. A. 740.

This court has also held that the obligors on an appeal bond are estopped to deny the recitals of the bond. Harding v. Kuessner, 172 Ill. 125, 49 N. E. 1001. In such case the principle of estoppel is clearly applicable. Smith v. Whitaker, 11 Ill. 417. One signing the bond cannot be heard to say that an appeal bond is a nullity or question the truth of the recitals in the bond that the appeal was obtained thereby. The obligor is bound by such recitals in the bond. Meserve v. Clark, 115 Ill. 580, 4 N. E. 770. The giving of this bond being neither prohibited by statute nor contrary to public policy, it is a common-law obligation. The defendant, and his surety by signing this bond, obtained all the benefits of the bond. They are both now estopped from denying its binding obligation. Mix v. People, 86 Ill. 329; Courson v. Browning, 78 Ill. 208; George v. Bischoff, 68 Ill. 236.

[6-8] It is further contended by counsel for appellant that the bond in this case was filed with the clerk of the municipal court and that said bond was never delivered to the plaintiff or any person for plaintiff's use, and therefore it is invalid. Said section 23 of the Municipal Court Act provides that a stay of execution bond shall be delivered to the clerk of the municipal court and by him filed. As counsel cannot raise the constitutionality

The relator was sentenced to the reforma

of this section of the statute, the stafute | from the Illinois state reformatory, where must govern. There is no precise or set he is now confined by virtue of a judgment form in which the delivery of such bond must entered in the municipal court of Chicago be made, in the absence of a statutory provi- on April 10, 1916. sion governing the same. The essence of the question whether there has been a deliv-tory for one year and fined $500 and costs, ery consists in the intent of the obligor to perfect the instrument and make it at once the absolute property of the obligee, and where there is such an intent, coupled with acts or words evincing the same and showing the intention to consummate and complete the bond and to part absolutely and unconditionally with it and the right over it, it will be given legal existence. It need not be personally delivered by the obligor to the obligee. 5 Cyc. 740, and cited cases. The Maryland case cited by counsel for appellant is not in harmony with the weight of author-county jail, and the keeper of the jail comity on this question.

The amount of the judgment was not excessive.

We find no error in the record. The judgment of the trial court will therefore be affirmed.

Judgment affirmed.

(276 111. 350)

PEOPLE ex rel. HARRIS v. GRAVES. (No. 11111.)

(Supreme Court of Illinois. Dec. 21, 1916.)

1. HABEAS CORPUS 4-REVIEW.

The writ of habeas corpus cannot operate as a writ of review. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. 4.] 2. HABEAS CORPUS 30(1)-REVIEW OF ERRORS FOR CRIMINAL TRIAL.

Where accused pleaded guilty and was first sent to the county jail, and the sheriff commanded to take him to the state reformatory, in pursuance of which he was confined in the county jail until ten days thereafter, and the first judgment was vacated and another judgment rendered ordering the bailiff to take defendant to the reformatory, any irregularity in the second judgment could not be reached by habeas corpus; the court having jurisdiction of the person and the offense.

and to stand committed until the fine and costs were paid or until he was discharged in due course of law. The information charged the relator with an assault; the finding of the court was that on April 1, 1916, Harris pleaded guilty in the municipal court of Chicago to the charge of malicious and willful assault with a deadly weapon. No point is made in the briefs as to this difference. The sentence entered on that date shows that the bailiff of the municipal court was commanded to take the defendant to the

manded to receive the defendant, and the sheriff of Cook county commanded to take the defendant to the state reformatory. Later, the records of the municipal court showed the entry of the following order:

"April 10, 1916.-Harry M. Fisher.-Motion defendant heretofore entered herein to vacate judgment of April 1, 1916, sust.," etc.

The judgment, after being vacated, was entered again on April 10th in the exact form of the judgment of April 1st, except that in the later order the bailiff of the municipal court was commanded to take the defendant to the reformatory. Between April 1st and April 10th the relator was confined in the jail of Cook county. After the order of April 10th was entered he was taken by a bailiff of the municipal court to the reformatory at Pontiac, where he is now confined.

[1, 2] Counsel for the relator argue that the judgment and sentence of April 10th, upon which the commitment was based, were void and therefore the relator should be released under this petition. The settled rule of law in this state is that the writ of habeas corpus cannot operate as a writ of review. The repeated decisions of this court are to the effect that the writ will not be used to review the judgment of the court when the judgment sought to be reviewed has been rendered by a court having jurisdiction of the person and the subject-matter of the suit in which the judgment had been rendered. People v. Zimmer, 252 Ill. 9, 96 N. E. 529, and cited cases; People v. Allen, 160 Ill. 400, Habeas Corpus by the People, on the rela-43 N. E. 332. There can be no question, on tion of George Harris, against William C. this record, that the trial court had jurisdicGraves. Relator remanded to custody.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. 30(1).] 3. HABEAS CORPUS 95-CONSTITUTIONALITY OF STATUTES UNDER WHICH CONFINED. The relator in a habeas corpus proceeding cannot question the constitutionality of the act under which he was sentenced.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 82; Dec. Dig. 95.]

Benjamin C. Bachrach and Julius Savitky, both of Chicago, for relator. Patrick J. Lucey, Atty. Gen. (Thomas J. O'Hare, of Chicago, of counsel), for respondent.

tion of the person and the subject-matter, and the question of any irregularity in the second judgment can be reached by a writ of error. Even conceding that there is merit in the petitioner's argument, the judgment of the municipal court would only be voidaCARTER, J. The petition for habeas cor-ble and not void. We deem it unnecessary pus in this case was filed by leave of this to refer to or review the decisions from othcourt to investigate the question whether the er jurisdictions relied on by counsel for rerelator, George Harris, should be discharged lator, as the authorities of this state must

be conclusive on this question. It is not im- | 58 in Champaign county, and by what right proper, however, to add, in passing, that we find nothing in the federal or state authorities cited, in view of the facts in this case, that is in conflict with the decisions of this state.

The relator is remanded to the custody of 1870. This same question was passed upon the respondent.

PEOPLE ex rel. BLOCK et al. v. MOFFITT court, with directions to sustain the demur

In a will contest, though the probate court had already declared the heirship, and such declaration was, by specific provision of Hurd's Rev. St. 1915-16, c. 3, § 3, prima facie evidence of heirship, yet under further provision of such section, that any other legal mode of proving

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes