section the association, 'upon duly making and filing articles of association and an organization certificate,' becomes not only a body corporate, but has all the pow ers it is ever to possess, were it not for the inhibition already quoted.

"That a lease of offices to be used by said Market National Bank as a banking office, and for no other purpose, from May 1, 1893, to April 30, 1898, for $13,000 per annum, payable $1083.33 on the last day of each and every month during said term,' was not incidental and necessarily preliminary to the organization of said corporation is evident. Never having been authorized by the comptroller to commence the business of banking, this corporation had at no time authority to do any business except such as was 'incidental and necessarily preliminary to its organization.' The leasing of rooms as a banking office, and which it was stipulated were to be used for no other purpose, was not necessarily preliminary to its organization. For the mere purpose of doing a banking business it had no power to rent rooms at all, for the doing of a banking business was not necessarily preliminary to its organization.' Its acts in this regard were not a defective use of power or the work of a merely de facto corporation, but a transaction which this de jure and de facto corporation was specially forbidden to engage in. To make this lease it had no power. It is quite likely that for the purpose of perfecting its organization it might have rented a room in which its members could meet and pay in their respective subscriptions; that it could also have purchased books in which to record its proceedings, and hired a clerk to keep the record. These things might have been 'necessarily preliminary to its organization.' The renting of rooms as a banking office, and for no other purpose,' could not have been 'necessarily preliminary to its organization.'

"The association is required in its organization to state the place where its operations of discount and de

posit are to be carried on. But by this is meant the town or city,-not the room, street or number in such town or city. This is clear from section 5190, which provides that 'the usual business of each banking association shall be transacted at an office or banking house located in the place specified in its organization certificate.' It will not be contended that a national bank is compelled to designate an office, street or number, and during the entire term of the existence do business at such locality.

"As before stated, the attempt to make this lease was more than an abuse of power or an improper exercise of judgment, it was an attempt to do that for which no power existed. The proceeding was neither within the express or implied scope of its powers. On the contrary, power to do this thing was directly denied.

"The case at bar is not like that of Tarbell v. Page, 24 Ill. 46, or Bushnell v. Consolidated Ice Co. 138 id. 67, in which de facto corporations made contracts within the powers of the de jure body each held itself out to be. Neither is this case similar to that of Chubb v. Upton, 95 U. S. 95, in which one who had subscribed for stock attempted to defend upon the ground that the stock for which he subscribed was part of an increase of capital which the company had, without authority, attempted to make. We are herein called upon to deal, not with irregularities, but with a plain attempt to do what was absolutely forbidden, and we are asked to enforce an executory contract made in defiance of the law, the same as if it had been fully authorized.

"Nor is the company, because it represented itself as fully authorized to make this lease, now estopped from insisting upon its want of power. On the contrary, it is its duty to cease to act in defiance of the law, and it has no right, by silence, to suffer itself to be driven into a continuance of what was always wrong. To enforce the part of this agreement which yet remains executory

would be for the court to declare that a corporation can, by a contemptuous disregard of the law, acquire powers forbidden to it, or, as is said in Cincinnati Mutual Health Ass. Co. v. Rosenthal, 55 Ill. 85-87, 'to give the person or corporation or individual the same rights in enforcing prohibited contracts as the good citizen who respects and conforms to the law.'

"It is well settled that while corporations cannot be rendered directly liable upon ultra vires transactions, they must account for benefits received therefrom. (Green's Brice on Ultra Vires, 42, 728.) Where benefits have been received under an ultra vires agreement, relief granted is not upon the basis that a valid or merely voidable contract has been entered into, but, the act not being malum in se, the parties will, as near as they well can, be restored to their original condition. Pennsylvania Railroad Co. v. St. Louis, Alton, etc. Railroad Co. 118 U. S. 290; Thomas v. Railroad Co. 101 id. 71; Oregon Railway and Navigation Co. v. Oregonian Railway Co. 130 id. 1; Chicago Building Society v. Crowell, 65 Ill. 453, 458.

"We have discussed the question submitted upon the lines presented by appellant, who, the contract having been partially executed, recovered judgment for $2548.53. It is not here contended, nor does it appear, that this was not equal to the entire benefit received by appellee. "The judgment of the Superior Court is affirmed."

Our consideration of this case has led to the same conclusion reached by the Appellate Court announced in the foregoing opinion by Mr. Justice WATERMAN. That opinion will accordingly be adopted as the opinion of this court, and the judgment affirmed.

Judgment affirmed.

Mr. JUSTICE CARTER: I do not concur in the decision rendered in this case.

U. B. FERRIS

v.

THE CITY OF CHICAGO.

Filed at Ottawa June 13, 1896.

1. SPECIAL ASSESSMENTS-ordinance attached to petition need not be certified. Failure of the city clerk to certify that a copy of an ordinance for a special assessment, attached and referred to in the petition, was passed by the council, is no ground of objection to the confirmation of a special assessment.

2. SAME-commissioners cannot assess for street not named in order of their appointment. Commissioners have no authority to assess the cost of improving another and different street from that named in the order appointing them.

WRIT OF ERROR to the County Court of Cook county; the Hon. O. N. CARTER, Judge, presiding.

F. W. BECKER, for plaintiff in error.

Mr. JUSTICE BAKER delivered the opinion of the court: This was a proceeding in the county court of Cook county for the confirmation of a special assessment for the improvement of Seventy-fourth street, between Yates and Bond avenues, in the city of Chicago, by curbing, grading and macadamizing the same. Plaintiff in error, one of the owners of assessed property, appeared and filed objections. All of the objections were overruled and judgment rendered confirming the assessment. record is brought here by writ of error.

The

Four grounds are relied upon by plaintiff in error to reverse the judgment:

First-It is said that the "petition does not recite an ordinance, but refers to a paper as an exhibit, which, on inspection, purports to be a report of the commissioner of public works submitting a draft of an ordinance to the council, and nothing appears in the certificate of the clerk showing that the proposed ordinance was ever passed." There is no merit in this objection. All the

statute requires in this regard is that the petition shall recite the ordinance for the proposed improvement. What the petition alleges to be a copy of the ordinance is annexed thereto and made a part thereof. This is a compliance with the statute. Whether such document is in fact a true copy of the ordinance was matter for proof on the hearing. What was or was not certified by the clerk in his certificate is of no importance, because the statute does not require that the ordinance recited in the petition shall be certified in any manner. Wadlow v. City of Chicago, 159 Ill. 176; Springer v. City of Chicago, id. 515; Adcock v. City of Chicago, 160 id. 611.

Second-It is claimed the ordinance is contradictory, in that, after providing for a pavement of macadam, it provides for a pavement of wooden blocks. Upon looking at the copy of the ordinance which is made a part of the petition we find no provision therein for a pavement of wooden blocks. The clause relating to wooden blocks is erased from the paper on which is written and printed the copy of the ordinance, and is no part of said copy.

Third-It is urged that the ordinance is contradictory for the further reason that one provision is that the pavement conform to the grade of Seventy-fourth street and another that it shall be one-half inch higher than that grade. The answer to this objection is that the ordinance contains no provision that the pavement shall be onehalf inch higher than the grade of Seventy-fourth street.

Fourth-It is objected that the commissioners who assessed the cost of this improvement were appointed by the county court to assess the cost of improving Twentyfourth street, and not Seventy-fourth street. This objection is well made. It does not appear from the record that any commissioners were ever appointed to assess the cost of improving Seventy-fourth street, and it affirmatively and clearly appears therefrom that the assessment for improving said Seventy-fourth street was made and returned by commissioners who had been appointed to