a poor person, and unable to prosecute his suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, as a poor person; and thereupon such person shall have all the necessary writs, process and proceedings, as in other cases, without fees or charge. The court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without any fees, charge or reward. If judgment be entered for the plaintiff, there shall be judgment for his costs, which costs shall be collected for the use of the said officers." The provision of the statute authorizing the superior court to make rules of practice for that court is found in section 69 of chapter 37, Hurd's Revised Statutes of 1905, and is in these words: "The said courts may, from time to time, make all such rules for the orderly disposition of business before them as may be deemed expedient, consistent with law." An examination of sections 4, 5 and 6 of chapter 33, supra, is necessary to ascertain the legislative intent in reference to requiring security for costs from parties plaintiff or complainant and in reference to allowing such parties to prosecute as poor persons. Upon consideration of these sections it at once appears that the rule of the superior court set out in the foregoing statement is not consistent with the law. The provision of the rule requiring that the person applying for leave shall enter into a written agreement that such person will pay all costs due to the clerk of the court out of money obtained through the suit or a compromise thereof; the provision requiring that the party asking the leave shall also file an agreement of his attorney that as an officer of the court he undertakes to see, and agrees, that the costs of the court shall be paid out of the first money recovered through litigation or obtained by any compromise; and the provision that if the applicant has not been known to his attorney for at least one year the ap plication must be accompanied by an affidavit “of a reputable citizen of some standing," to the effect that he believes such person "to be honest," place upon the person seeking leave substantial burdens, in reference to matters other than those of procedure, not contemplated by and inconsistent with the statute. In no event can the court legally require that the application for leave to sue as a poor person should be accompanied by the agreements and the affidavit which are required by the rule and which have been hereinabove in this opinion particularly referred to. We are also of the opinion that it is unnecessary that either the applicant's attorney or the court should be satisfied that the applicant is a pauper. Many persons who are not paupers may rightfully be permitted by the courts to commence and prosecute actions as poor persons. There are other meritorious objections to this rule, but we deem it unnecessary to discuss them. The rule is not subordinate to the statute, and is therefore invalid. Rozier v. Williams, 92 Ill. 187. It is said, however, that the section of the statute relied upon by petitioner gave to respondent discretion in determining whether to grant or refuse the leave asked, and that for this reason mandamus will not lie to direct the court to act in a particular way. This contention disregards the legal effect of the petition. The only logical conclusion that can be deduced from that pleading is, we think, that the respondent refused to act for the reason that no attempt had been made to comply with the rule, although the documents presented were of such character that petitioner was entitled to invoke the judgment of the court. It is not unlike a case where mandamus is brought against a judge of a nisi prius court to compel him to sign a bill of exceptions. Mandamus will there lie to require him to act but not to command him to act in any particular way. That is, he will not be directed how to decide the question pending before him but will be directed to determine it in some manner consistent with the law. (People v. Chytraus, 183 Ill. 190, and cases there cited.) The language just used is not to be regarded as an intimation that the court's discretion, when exercised, is not reviewable. The writ of mandamus will be awarded in accordance with the prayer of the petition. Writ awarded. JOY MORTON et al. ข. THE CITY OF CHICAGO. Opinion filed June 19, 1907. SPECIAL ASSESSMENTS—when finding that property was benefited must be upheld. Unless palpably against the weight of the evidence, a finding by the county court that property will be benefited by an improvement to the extent of the assessment must be upheld on appeal, where the testimony of the petitioner's witnesses is sufficient to support such finding, even though an equal number of witnesses testify for the objectors that the property will be benefited but very little, if at all. APPEAL from the County Court of Cook county; the Hon. W. L. POND, Judge, presiding. HENRY W. LEMAN, for appellants. CHARLES H. MITCHELL, and FRANK JOHNSTON, Jr., (JAMES HAMILTON LEWIS, Corporation Counsel, of counsel,) for appellee. Mr. JUSTICE FARMER delivered the opinion of the court: This is an appeal from a judgment of the county court confirming a special assessment for a proposed granite pavement on Seventeenth street, in the city of Chicago. Said street is two blocks long, extending east and west from State street to Clark street. Appellants say in their brief: "The principal objection to this assessment is that the property will not be benefited in the least, or only to a very small amount, by the proposed improvement." That the property would be benefited to the extent of the assessment against it for the proposed improvement was testified to by three witnesses for appellee. All of them testified they were familiar with the location and value of the property. Two of them had known the property for a great many years,—one of them about thirty years and one about forty years. Appellants contend that they were expert witnesses and were frequently called upon by appellee to testify in such cases, and that their testimony for that reason should have but little weight. Three witnesses testified on behalf of appellants, one of whom owned property on Seventeenth street and the other two had sold property on said street. The substance of their testimony was that the property of appellants would not be benefited to the extent of the assessment; that the benefit to it would be very little if any at all, and that its value would not be increased by reason of the proposed improvement. The witnesses for the respective parties gave their reasons for testifying as they did. It cannot be denied that the testimony offered by appellee, standing alone, was amply sufficient to justify the judgment. The trial court was in a very much better position than we are to determine the weight proper to be given to the testimony of the respective witnesses, and although an equal number of witnesses for appellants testified contrary to the evidence given on behalf of appellee, we cannot say that the judgment was so palpably against the weight of the evidence that it should be reversed. Unless we could so say, the judgment should be affirmed. The case is controlled by the rule announced in Topliff v. City of Chicago, 196 Ill. 215, and Clark v. City of Chicago, 214 id. 318. The judgment is affirmed. Judgment affirmed. LAWRENCE E. MCGANN et al. v. THE PEOPLE ex rel. Harold G. Hansen. Opinion filed June 19, 1907. CIVIL SERVICE-deputy bailiffs of municipal court of Chicago are not under Civil Service act. The appointment of deputy bailiffs for the municipal court of Chicago is not controlled by the Civil Service act. (McGann v. People, 227 Ill. 567, followed.) APPEAL from the Circuit Court of Cook county; the Hon. G. A. CARPENTER, Judge, presiding. MICHAEL F. SULLIVAN, (JAMES HAMILTON LEWIS, Corporation Counsel, WILLIAM D. BARGE, and Hiram T. GILBERT, of counsel,) for appellants. BARKER, CHURCH & SHEPARD, KNIGHT & HOYNE, and OLAF F. SEVERSON, (FRANK L. SHEPARD, and MACLAY HOYNE, of counsel,) for appellee. Per CURIAM: The question involved in this case is identical with the question decided in the case of McGann v. People ex rel. 227 Ill. 567, except the relator in this case was a deputy bailiff of the municipal court of Chicago instead of a deputy clerk, as was the relator in that case. The Municipal Court act provides that the bailiff shall appoint such number of deputies as may be determined, from time to time, by a majority of the judges of the municipal court, and that the said deputies shall be subject to removal by a majority of said judges at any time. Under the rule announced in the before mentioned case the appointment of said deputy bailiffs is not controlled by "An act to regulate the civil service of cities," and the circuit court properly granted the writ of mandamus requiring the comptroller of the city of Chicago to deliver to the relator a warrant for his salary and the city of Chicago to pay the same. The judgment of the circuit court will be affirmed. |
