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objection was made. Whether such property would ever be connected with the sewer rested in the discretion of the city council, which had not been exercised, and which might be exercised either one way or the other., Where property cannot be benefited except in case of subsequent work for which no provision is made, it cannot be assessed for the improvement, and the objection should be sustained. Village of Hyde Park v. Carton, 132 Ill. 100; Hutt v. City of Chicago, id. 352; Edwards v. City of Chicago, 140 id. 440; Washington Ice Co. v. City of Chicago, 147 id. 327.

It is claimed on the part of appellee that there is no proof in the record that the property so objected for did not abut upon the line of the proposed sewer in One Hundred and Sixth street. This is a mistake. The evidence showed that the district extended a quarter of a mile north and half a mile south from that street. Some of the tracts of land were described in the assessment roll by government subdivisions, and there was no contradiction of the evidence that the greater part of the property did not abut upon that street, but was situated on other streets and avenues.

Objection was also made and motion entered to cancel and annul the assessment, for the reason that the ordinance providing for the same was unreasonable, oppressive and void. Counsel for appellee says that this objection was properly overruled, because the court had no jurisdiction to decide it. This claim is based upon the well-known rule, that where the legislature has, in terms, conferred upon a municipal corporation power to pass an ordinance of a specified and definite character, such an ordinance as is so authorized cannot be impeached because it is unreasonable. The legislature may confer authority to adopt unreasonable ordinances,—or, in other words, what the legislature has said may be done cannot be set aside because the act may be deemed unreasonable. But it is only where the ordinance follows the power conferred by the legislature, so that it may be

said that the legislature has authorized the particular ordinance, that its reasonableness cannot be inquired into. The power to construct sewers is contained in the twenty-ninth clause of section 1 of article 5 of the act for the incorporation of cities and villages, as follows: "To construct and keep in repair culverts, drains, sewers and cess-pools, and to regulate the use thereof." By the fifty-seventh clause further power is given, as follows: "To regulate the construction, repairs and use of vaults, cisterns, areas, hydrants, pumps, sewers and gutters." By these provisions power to legislate for the construction of sewers is conferred, but the nature of the legislation is left to be determined by the city. The grant of power is general in its nature, and its exercise may be either reasonable, or arbitrary, unreasonable and oppressive. In such cases the legislative grant is subject to the implied limitation that its exercise shall be reasonable, and the courts have power to pass upon and determine that question as one of law. Village of Hyde Park v. Carton, supra; Hawes v. City of Chicago, 158 Ill. 653.

It is argued that the fact that the statute provides that the improvement may be made by special assessment, and that when so made the proceeding shall conform to the provisions of sections 18 to 51, inclusive, of article 9 of said act, takes the ordinance out of the rule. But article 9 does not confer any power. It merely provides a method for levying and collecting the cost of the improvement. Power having been given to the city to adopt that method of assessment and collection, the court cannot inquire into the wisdom or expediency of adopting it in a particular case. But that has nothing to do with the question now under consideration.

There were from half a dozen to a dozen houses on the south side of One Hundred and Sixth street in its entire length, and not a house on the north side between Calumet river and the Indiana State line. If the lots and lands not abutting on One Hundred and Sixth street are

stricken out, it is presumed that the scheme for a trunk sewer like this, with an internal diameter of five and onehalf feet at one end and three feet at the other, to be paid for by the abutting property, would not be entertained by the city. As we have held that the lots not abutting on the sewer should have been stricken out, we need not consider the ordinance as relating to the whole district.

The parties were agreed that in order to protect the sewer and complete the improvement so that it would be of any use, it must be covered to a depth of several feet. The ordinance made no provision for that work, but merely provided for the construction of the sewer proper, with its appurtenances. If left as provided by the ordinance it would be utterly useless and of no benefit to any property. If it should be covered so as to complete the improvement, the ordinance furnished no data for an estimate of the cost by the commissioners or for an assessment, and it is obvious that no special assessment could be levied under it. There was no way, from the ordinance itself, of ascertaining what the cost of the complete improvement would be, so that it might be apportioned upon the property benefited. Washington Ice Co. v. City of Chicago, supra.

It is also complained by the appellants that the court took the legal questions raised by their objections and motion under advisement, and refused to pass upon them until after a trial by a jury. It is argued on the part of appellee that this was within the discretion of the court, but we think that the court has no such discretion. The legal questions raised were preliminary to the question whether a jury should be called or not, and the objectors had a right to a decision as to whether the ordinance and assessment legally afforded any basis for a trial upon the question of benefits, before being required to try the issue. The judgment will be reversed and the cause remanded. Reversed and remanded.




Filed at Ottawa May 12, 1896-Rehearing denied October 13, 1896.

1. CONTRACT—joint enterprise-construction of contract as respects right of parties to share profits. An agreement by which the parties unite for the sale of lands, providing that the profits realized shall be divided in a certain proportion and that said profits shall include any sum that may be received by either party in consideration of any aid rendered in consummating the sale, will include a bonus received by two of the parties under a contract with third parties.

2. SAME-for division of profits not affected by contract with third party. An agreement for the division of profits received from the sale of certain land and of any consideration received for aiding in the sale, cannot be affected by a provision of a second agreement between some of the parties to the first agreement and third parties that the former should have for themselves any bonus which might be received upon a particular transaction in respect to such lands.

3. INTEREST allowed on money received secretly by one to another's use. Interest is allowable upon a share of profits agreed to be divided but secretly received and retained by one of the parties under an agreement with third parties.

Currier v. Kretzinger, 58 Ill. App. 288, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on writ of error to the Superior Court of Cook county; the Hon. WILLIAM G. EWING, Judge, presiding.

L. S. HODGES, and DENT & WHITMAN, for appellant. TENNEY, MCCONNELL & COFFEEN, for appellees.

Mr. JUSTICE CARTER delivered the opinion of the court: The appellees brought their bill in equity in the Superior Court of Cook county, against appellant, to compel him to account for certain moneys which it was alleged he had received under a certain contract between him and them, and to pay over so much thereof as they

should be found entitled to, with interest. was as follows:

The contract

"Memorandum of agreement made and entered into between C. L. Currier, party of the first part, and G. W. and J. T. Kretzinger, parties of the second part, witnesseth:

"Whereas, some time in the month of July, 1885, said parties hereto obtained for sale certain ranch properties, which they then and there agreed to unite, and co-operate with each other in attempting to procure the sale thereof in the London market, and thereafter, to that end, said first party entered into certain contracts with Hass & Haley and with George W. McCrary, and made certain advances to pay the expenses of J. T. Kretzinger, one of the parties of the second part, to London, to negotiate the sale of said properties, and agree to make such further advances as may be necessary in the premises; and whereas, said parties hereto, and each of them, have assisted and rendered various services, and contributed all possible aid they, or either of them, could render, in seeking to promote and consummate said sales, and agree to continue their efforts in this behalf; and whereas, the parties hereto desire to form themselves into a syndicate, for the purpose of securing mining and ranch properties and farming and other lands for sale, intending to include all kinds of property, both real and personal, that are salable in the market in London or elsewhere:

"Therefore, in consideration of the premises, and for the purpose of defining the interest of the parties hereto in the proceeds that may come to them or either of them, or the profits that may be realized from said sale or the sale or sales of any property made by either of them, it is agreed that all the proceeds or profits realized from the sale or sales of any of such properties that have heretofore been negotiated, made and consummated, or that may hereafter be negotiated, made or consummated, said first party shall receive one-third and the second party two-thirds thereof. This contract shall include any moneys, stock or other consideration heretofore paid or agreed to be paid, or that may hereafter be received by either party to this contract, in consideration of any aid rendered by either party to this contract in negotiating or consummating such sale. This contract is to continue with full force and effect for one year from and after the date hereof.

"It is further agreed and understood, that after the first proceeds have been received as above contemplated and provided, the said first party shall contribute one-third of the ex

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