(133 N.E.)

with Temple, Ginsberg decided to invest certificate, Jones suggested to him that he $300 in the stock of the corporation and would take the money and send his own perwent with Temple to the Otis Building to sonal check to Fife, as it was not safe to see plaintiff in error in regard to the pur- send money in the letter. Jones took the chase of the stock. According to the conten- $300 from Ginsberg, deposited it in the bank tion of plaintiff in error he informed Gins- in his own private account, drew his check on berg that he had no stock for sale; that no the bank, mailed the check for Ginsberg to stock was for sale in Chicago; that the com- Fife along with Ginsberg's application, and pany had not taken steps necessary to au- then gave Ginsberg a receipt for the money. thorize the sale of its securities in Illinois Ginsberg testified positively that Temple was under the Blue Sky Law; that Ginsberg the man who induced him to buy this stock, could purchase shares of such stock only by and that Jones did not directly have anyforwarding to John O. Fife, at Kansas City, thing to do with having him buy, but he also a written application for stock, with the stated that Jones told him that he would get purchase price at which Fife was then sell- the stock from Kansas City by mail, and ing his individual stock; and that Fife, on that he would never regret buying it, and such application, would mail to Ginsberg his that it would be worth 20 times as much as stock on acceptance of his offer or applica- he paid for it; also that Temple told him, in tion. Ginsberg testified that when he went Jones' presence, that the company was not to plaintiff in error's office he was asked by thoroughly in operation; that they had not him if he knew all the details of the com- shipped anything out for something like a pany and if he was interested, and that year or so; that it was almost complete, and Ginsberg replied, "I guess so," and that as soon as they put it on the New York curb Temple had told him everything. Plaintiff it would begin paying dividends; and that it in error then furnished Ginsberg with a form would go up from 20 to 30 times what he of application, which the latter signed. The paid for it. application was dated July 27, 1920, and was in form a letter addressed to Fife at his residence in Kansas City, and was signed by Ginsberg, and after the latter's name appeared his residence address in Chicago. The letter is in this language:

The facts further disclose that forms for application to Fife for the purchase of stock from him were kept by Jones in the office conducted by him for Fife for prospective purchasers to make applications for stock, being the same in form as signed by Gins

"I am informed that the Hill Top Metals Min-berg. Jones testified that when he "scared ing Company will not sell any of its treasury stock, but that possibly you will dispose of some of your individual holdings. I therefore write to offer you $300 for 150 shares of your individual stock in said company and inclose check for said amount. If accepted, please assign and cause to be issued in my name a certificate for the said number of shares. This offer is made on the further understanding and agreement that I will not sell or transfer said shares, and

up a sale for Fife" he generally received a commission from him on the sale, although there was no positive contract to that effect; that he thinks he got a commission on the sale to Ginsberg; and that he made about $150 per month as agent for Fife. It was also positively stated by counsel for Jones as facts to be considered by the court that the stock which Fife was selling was really probooks of the Hill Top Metals Mining Company motion stock, and that under the ruling of until J. O. Fife ceases selling (and also P. J. the state department, and under section 12 Kasper, if he should resume selling) his indi- of the Securities Act, such stock must be vidual shares and voluntarily devoting the pro-held in escrow, and that the stock was not ceeds thereof to paying expenses and develop-in escrow, and that they could not sell it, ment work upon the properties of the Hill Top Metals Mining Company."

that said shares will not be transferred on the

After Ginsberg's signature and address, in the left margin of the application, appeared the following, signed by Fife:

and it could not be sold in this state. Again, in speaking of the stock being sold by Fife, in his statement of facts to the court counsel used this language:

"But under the Securities Act that stock "Aug. 5, 1920, accepted.-Recd. $300.-Issued is promotion stock, and promotion stock cert. for 150 shares."

Ginsberg received his certificate for 150 shares of said stock from Fife by mail about two weeks after he signed and mailed his application therefor. At the time he signed and mailed his application Jones asked him for his personal check to Fife to mail with the application. On being informed by Ginsberg that he had no check, and that the banks were all closed, and that he had brought $300 in cash with him to pay for the 133 N.E.-20

must be put in escrow and cannot be sold. That is the very stock they were selling. When they couldn't qualify under the Securities Act they simply had to cease doing business in Illinois. They closed up their office. Mr. Jones, who had been secretary of the company, was removed or resigned. They moved their office to Kansas City, Kan., and stopped selling stock

in Illinois. But numbers of the stockholders in this company were satisfied. Some of them still think it a pretty good thing. They bought other stock from Fife, and that is why anybody who wants to buy stock must make ap

plication to Mr. J. O. Fife, of Kansas City, upon all outstanding interest-bearing obligaKan." tions; (2) in the case of preferred stock not less than one and one-half times the annual dividend on such preferred stock; (3) in the case of common stock not less than three per cent. per annum upon such common stock."

"The power of the court to act in the dispo-ed for sale until there shall have been filed sition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced."

(133 N.E.)

plied with the requirements of the act to entitle them to sell said securities or have them sold in Illinois. The admissions were to the effect that the stock in question was promotion stock, and was required by the act to be put up in escrow and could not legally be sold until qualified under class C. There is no such provision as to any stock except as to class D stock, and the provision as to promotion stock is found in section 12 of the act. The statement of counsel was an admission also that the stock in question could not then be legally sold, and that it was for this reason that the company had to quit Illinois and quit selling stock therein and move to Kansas for the purpose of making further sales of the stock. The contention of plaintiff in error, therefore, that the record does not sustain the finding that the securities in question are class D securities, and that their sale in Illinois was and is illegal, is not tenable.

ing in one city receives through his agent residing in another city an order for beer from a customer there and fills the order by delivering the beer to a common carrier at the place of manufacture, consigned to the customer at his place of residence or to such agent for him, the sale is complete, and the title passes at the place of shipment, even though the customer, on receiving the beer at his place of residence, pays to such agent the purchase price, and that the absence of a license to sell liquor in the county where the purchaser resided will not render the agent liable for selling without there obtaining a license.

In Dunn v. State, 82 Ga. 27, 8 S. E. 806, 3 L. R. A. 199, the Supreme Court of Georgia said that, if the evidence left it doubtful whether delivery was to be made to the carrier at the place where the seller did business or to the buyer where the purchaser resided, "we answer that where two methods of delivery are open, one legal, the other illegal, the former is to be considered as the one contemplated unless the parties by express agreement have adopted the other. Certain

cent and the other criminal."

[3] The contention of plaintiff in error that the securities in question were not sold by him and that the sale was not made in Illinois must be sustained. Under the evidence in this case the sale was not completly is this true where the one would be innoed or made until the securities were mailed to Ginsberg by Fife at Kansas City, and the sale must be held to be a sale at, Kansas City. Sales of personal property, whether made to the vendee personally or ordered by letter, are regarded as made at the place where the vendor shows his assent to the proposal by delivering the goods to a carrier for the vendee, in the absence of any agreement of the parties or any special circumstances showing to the contrary. In People v. Young, 237 Ill. 196, 86 N. E. 589, a party in Georgetown ordered beer from a saloon keeper in Danville by telephone, who filled the order by delivering the beer to an express company in Danville, which delivered it to the party at Georgetown on his paying the express company for the beer, and the court held that the sale was a sale at Danville, and not at Georgetown.

The case of Phoenix Packing Co. v. Humphrey-Ball Co., 58 Wash. 396, 108 Pac. 952, cited by defendant in error, does not contravene, but is in harmony with, the rule laid down in the cases above cited. In that case the undisputed testimony was that under the terms of the contract the goods were to be considered the goods of the seller until they were purchased and paid for in Spokane by respondent or vendee. It was therefore held that the place of delivery was at Spokane, the residence of the vendee, as the goods, by agreement, were at all times the property of the vendor until they should actually be delivered to the vendee in Spokane and paid for by him. In the case in hand the title to the securities was not to pass to Ginsberg, and did not pass to him, until the contract was accepted by Fife and the securities were mailed by him. The sale was therefore made at Kansas City, and not at Chicago.

In City of Carthage v. Duvall, 202 Ill. 234, 66 N. E. 1099, it was held that, where a gallon of whisky was ordered by one Skidmore, living in Carthage, Ill., from a liquor dealer The conviction in this case was for an unin Burlington, Iowa, and the liquor dealer lawful sale of the securities in question as filled the order by delivering the whisky to the agent of the corporation, and that was an express company at Burlington consigned the charge in a single-count information. to Skidmore at Carthage, C. O. D., which Plaintiff in error was the agent of Fife, and was delivered by the express company on not of the corporation, and was not guilty of payment of the money by the vendee, the a sale in Illinois. Section 29 of said statute sale was a sale at Burlington, and not at makes it a misdemeanor for any solicitor, Carthage. agent, or broker to sell or to offer to sell any In Sarbecker v. State, 65 Wis. 171, 26 N. securities in class D without complying W. 541, 56 Am. Rep. 624, it was held by the with the provisions of the statute. Had a Supreme Court of Wisconsin that, where the proper count been added for unlawfully ofcontract is silent on the subject, and there fering the certificates in question for sale, is nothing in the transaction indicating a dif- there would have been a different question ferent intention, and a manufacturer resid- presented for decision; but the conviction

in this case for a sale cannot be sustained [ judgment against lands for delinquent taxes. for the reasons aforesaid, and that conclu- opposed by the Chicago & Eastern Illinois sion finally settles all questions raised on Railroad Company. From a judgment this record. It is therefore not necessary to against the lands, the Railroad Company appass upon any constitutional question raised peals. Reversed and rendered. by plaintiff in error.

H. T. Dick, of Chicago, and W. C. & W. L.

The judgment of the municipal court is Kelley, of Shelbyville, for appellant. reversed, and the cause is remanded.

Reversed and remanded.

(300 I11, 218)

Robert I. Pugh, State's Atty., and George B. Rhoads, both of Shelbyville, for appellee.

DUNN, J. By a special act of the General Assembly approved on March 30, 1869,

PEOPLE ex rel. KNECHT, County Collector, and adopted by a vote of the electors of the

v. CHICAGO & E. I. R. CO.

(No. 14204.)

(Supreme Court of Illinois. Dec. 22, 1921.) 1. Statutes 142, 162-Special act may be repealed or modified by general act, expressly or by implication, where intention clearly

appears.

The provisions of a special act may be amended or repealed by a general act either expressly or by implication from the inconsistency between the two acts, where the legislative intention to repeal or modify the provisions of the special act clearly appears.

2. Schools and school districts 99 Statute held to subject all districts to provisions of general law as to taxation.

Laws 1889, p. 342, art. 16, § 7, as amended by Laws 1891, p. 197, to provide that such act

should not repeal or change any special act in relation to schools in cities having less than 100,000 inhabitants, except that in every such city the limit of taxation for educational and building purposes should be the same as that fixed in article 8, § 1, brought within the terms of the general law, so far as the power of taxation was concerned, all school districts in the state whether organized under a special charter or the general law.

3. Schools and school districts 101-Amendment of statute as to rate of taxation held applicable to district organized under special act.

city of Shelbyville, the territory of that city was constituted a union school district known as Shelbyville graded school and governed by a board of education. 3 Private Laws of 1869, p. 422. Among the powers conferred upon the board of education was that of levying a tax in each year for school purposes, not exceeding 3 per cent. upon the assessed value of the real and personal property in the district. In August, 1920, the board of education levied $35,000 for building purposes and $35,000 for educational purposes, and the county clerk, by virtue of the certificate of the board, extended a tax against the real and personal property of the district at the rate of 3 per cent. The county collecter applied for judgment at the June term, 1921, of the county court against the lands which were delinquent in the payment of this tax, and the Chicago & Eastern Illinois Railroad Company, having paid two-thirds of the tax upon its property, filed objections to the remaining one-third on the ground that the board of education had no legal authority to make a levy in excess of the rate of 2 per cent. The objections were overruled, judgment as rendered against the property, and the railroad company appealed.

The question is as to whether or not the rate which the school district is authorized to levy is governed by section 189 of the general School Law (Laws 1909, p. 394), as amended on June 30, 1919 (Laws 1919, p.

Under School Law 1909, § 189, limiting the rate of taxation in school districts to 12 per cent. for educational purposes and 11⁄2 per cent. for building purposes, and section 276, provid- | ing that in cities having less than 100,000 in-856). habitants in which the schools are governed by special acts the limit of taxation should be the same as that fixed by section 189, the amendment of section 189 by Laws 1919, p. 856, reducing the rate of taxation applies to cities of less than 100,000 population, governed by a special act.

4. Statutes 231-Different sections of School Law to be construed together.

Three years after the granting of the special charter to the Shelbyville graded school there was a general revision of the School Law (Rev. Stat. 1874, p. 947), which authorized the levy by the directors, for all the expenses of the district, of a tax not exceeding 2 per cent. for educational purposes and 3 per cent. for building, purposes, but the act expressly provided that it should not be construed to repeal or change in any respect any special acts in relation to school districts, except in regard to the making of certain reports by the officers of such school Appeal from Shelby County Court; A. J. districts. The School Law was again revisSteidley, Judge.

Laws 1909, p. 342, constitutes a legislative revision of the whole subject of schools, and the different sections of the act must all be construed together.

Proceeding by the People, on relation of Edward R. Knecht, County Collector, for

ed in 1889. Laws of 1889, p. 256. The revision retained the same limitation of taxation and exception of special acts in regard

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

(133 N.E.)

to school districts, but in 1891 section 7 of article 16 of this revision was amended as follows:

"This act shall not be so construed as to repeal or change, in any respect, any special acts in relation to schools in cities having less than 100,000 inhabitants or incorporated towns, townships or districts (except that in every such city, town, township or district the limit of taxation for educational and building purposes shall be the same as that fixed in section 1, ar

ticle 8 of this act); and except" the other mat ters which had been excepted in the original act. Laws of 1891, p. 197.

and this cannot be held, because section 276 is neither mentioned in the title nor set out in the amendatory act. This argument is based on the claim that section 276

in the act of 1909, when it declared that the limit of taxation should be the same as that fixed in section 189, adopted that section, so far as special school districts were concerned, as it then stood, and not as it might be afterward amended. Town of Cicis cited in support of this position. In that ero v. McCarthy, 172 Ill. 279, 50 N. E. 188, an independent act passed in 1877 (Laws 1877, p. 61) provided that all cities, villages, and incorporated towns in this state, whether organized under the general law or special charters, should assess and collect their taxes in the manner provided in article 8 of the Cities and Villages Act. The

case

In 1909 there was another general revision of the School Law (Laws of 1909, p. 342), section 189 of which provided that the directors or board of education in each school district should be authorized to levy a tax, annually, upon all the taxable prop-town of Cicero was incorporated by a speerty of the district, not to exceed 11⁄2 per cent. for educational purposes and 11⁄2 per cent. for building purposes.

[1, 2] The provisions of a special act may be amended or repealed by a general act either expressly or by implication from the inconsistency between the two acts, where the legislative intention to repeal or modify the provisions of the special act clearly appears. Dutton v. City of Aurora, 114 Ill. 138, 28 N. E. 461; McCormick v. People, 139 Ill. 499, 28 N. E. 1106. In this case there is no necessity for implication, for it clearly appears by express words that the intention of the Legislature by the act of 1891 was to bring within the terms of the general law, so far as the power of taxation was concerned, all school districts in the state, whether organized under special charter or the general law, and that was the effect of the act. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Randle, 183 Ill. 364, 55 N. E. 728.

cial charter, which contained no limitation as to the amount of taxes which might be levied and collected for the purposes of the town. When the act was passed in 1877 there was no limitation in the Cities and Villages Act upon the rate of taxation, but in 1879 (Laws 1879, p. 66) an amendment to section 1 of article 8 of that act imposed a limitation of 2 per cent. upon the rate of taxation. Some years later a taxpayer filed a bill to enjoin the collection of the excess of the town tax levied above 2 per cent. upon the valuation of his property, claiming that the act of 1877 incorporated into the special charter of the town of Cicero the limitation added to article 8 by the amendment of 1879. The court held that an act which adopts by reference the whole or a portion of another statute means the law as existing at the time of the adoption, and does not include subsequent additions or modifications of the statute so adopted unless it does so by express or strongly implied intent, and that the amendment of 1879 did not become a limitation upon taxation in the town of Cicero. In this case the act of 1909 did not adopt another act by reference to It. There was no reference to another act, but merely a declaration that the terms of the act itself, so far as they refer to the limitation of taxation, should apply to districts organized under special acts. It is immaterial whether the language used in the reference in one section to another was to the limitation as fixed by this act or by section 189 of this act.

[3] Section 189 of the revision of 1909 limited the rate of taxation in school districts to 1% per cent. for educational purposes and 11⁄2 per cent. for building purposes, and contained a provision similar to that of the act of 1889 as amended in 1891, declaring the limit of taxation in special school districts to be that fixed by the revised act. In 1919 this rate was reduced to 1 per cent. for educational purposes and 1 per cent. for building purposes, "anything in any special charter to the contrary notwithstanding." Laws of 1919, p. 856. The appellee contends that the act of 1919, which is entitled "An [4] The Legislature by this act revised the act to amend section one hundred eighty- whole subject of schools, and the different nine of an act entitled, 'An act to estab- sections of the act must all be construed tolish and maintain a system of free schools,'' "gether. The language used expressed the (the act of 1909), cannot be held to reduce intention that special school districts should the limit of taxation of this school dis- be subjected to the same limitation of taxatrict, because to do so it must be held that tion as districts organized under the general section 276 of the act of 1909, which de-law, thus making the power of taxation by clared that the limit of taxation in special school districts uniform. The act in this redistricts mentioned should be the same as spect applies to all school districts throughthat fixed in section 189, is also amended, out the state, and any amendment of it in