provide for the return and collection of delinquent road taxes.

On April 16, 1901, at a regular meeting, the commissioners of highways of the town of Papineau made and entered of record the following order: "Ordered levy a district road tax for labor purposes, forty cents on the last assessment roll,"-which order is the only ascertainment of the amount of money to be raised by tax for the making and repairing of roads and the levy and assessment of a road tax for that year by the commissioner of highways of said town, and is the basis of the district road tax sought to be collected in this proceeding. The question, therefore, arises, is such order a compliance with the provisions of section 83, above referred to? We think not. When the legislature has prescribed a certain method to be adopted to subject property to the burden of taxation, that method must be substantially complied with before the property can be taken and sold in satisfaction of a tax. People v. Chicago, B. & Q. R. Co., 164 Ill. 506, 45 N. E. 989. It was the duty of the commissioners to ascertain, as near as practicable, how much money must be raised by tax for the making and repairing of roads, and to levy and assess the same as a road tax against the real, personal, and railroad property in the town subject to taxation. Here there was no ascertainment of the amount of money necessary to be raised by amount, or by a per centum upon each $100 of taxable property, and no levy was made. strict compliance with the statute would require the amount of the tax to be raised to be fixed in dollars and cents, but under the authority of Chicago & A. R. Co. v. People, 155 Ill. 276, 40 N. E. 602, Chicago & A. R. Co. v. People, 163 Ill. 616, 45 N. E. 122, and Gage v. Bailey, 102 Ill. 11, a fixed per centum upon each $100 of taxable property would have been sufficient, as the amount of the assessment and tax could readily be determined therefrom.

A

The assessment roll required by sections 81 and 84 was filed in the town clerk's office on May 4, 1901, but the notice required to be given by section 88 was not given within the next succeeding 10 days. The town clerk, immediately after the order above set forth was entered, and on the same day, posted notices as provided by said section, and we are asked to hold such notice sufficient. There was no proof that the notices were up or remained posted subsequent to May 4, 1901, and the posting of notices 18 days prior to the time when the commissioners of highways filed the amount of the road tax assessed in the town clerk's office is not a compliance with the statute, which requires such notices to be posted within 10 days after the filing of the amount of said road tax in the clerk's office. The clerk evidently mistook the ascertainment of the amount of the tax, and the levy thereof, under section 83, which was at

tempted to be made by the commissioners on April 16th, as a compliance with section 84. That section, in connection with section 81, requires the assessment roll, which shows the amount of the road tax, to be prepared and filed in the town clerk's office; and, as these are the only sections in the statute which require any paper or papers to be filed in the town clerk's office showing the amount of the road tax, the assessment roll must be the paper showing the amount of said tax assessed which is required by section 84 to be filed in the town clerk's office, and upon the filing of which section 88 requires notice to be given within 10 days after the same was filed.

The failure of the commissioners to ascertain, as near as practicable, the amount of money necessary to be raised as a road tax, to levy and assess the same, and of the town clerk, within 10 days after the commissioners have filed in his office the amount of road tax assessed, to give notice, are not mere irregularities, but failures to comply with the statute in substantial matters, which go to the foundation of the tax and vitiate the levy. Chicago & N. W. Ry. Co. v. People, 171 III. 525, 49 N. E. 538. The objections to the district road tax in the town of Papineau should therefore have been sustained.

The first objection urged in this court against the road, and bridge tax is that the commissioners of highways of the town of Middleport did not certify, in writing, to the board of town auditors and assessor of said town, that in the opinion of said commissioners a greater levy was needed than 60 cents on each $100 of the taxable property in said town. The road and bridge tax for which judgment was sought was the excess extended against the property of appellant over and above the 60 cents on the $100 of assessed valuation allowed by law to be assessed by the commissioners without the consent, in writing, of a majority of the board of town auditors and assessor of the town.

Section 13 of the road and bridge act reads: "The commissioners shall also meet semi-annually on the same day and at the same place of meeting of the board of town auditors. At the meeting immediately preceding the annual meeting of the county board the commissioners shall determine what per cent of tax shall be levied on the property of the town for road and bridge purposes and for the payment of any outstanding orders drawn by them on their treasurer, which levy shall not exceed sixty cents on each $100." Section 14 of the same act, as amended by the act approved May 11, 1901, reads: "If, in the opinion of the commissioners, a greater levy is needed, they may certify the same to the board of town auditors and the assessor, a majority of whom shall be a quorum, and with the consent of a majority of this entire board given in writing, definitely and specifically directing the particular purpose or purposes to which the same shall be solely

applied, an additional levy may be made of any sum not exceeding forty cents on the $100 of taxable property of the town. If the commissioners shall use any part of the funds so authorized, by said written consent, for any other purpose than that therein specified without the further written consent of said board, they shall be deemed to have illegally appropriated the same, and shall be liable accordingly." Hurd's Rev. St. 1901, p. 1523.

Under section 13 the commissioners had no power to make a levy to exceed 60 cents on each $100 of the taxable property of the town, but under section 14, as amended, if the commissioners were of the opinion a greater levy was needed they might certify that fact to the board of town auditors and assessor, and, with the consent of a majority of that board given in writing, an additional levy of not exceeding 40 cents on each $100 might be made. The commissioners of highways at their September meeting, 1901, made a verbal statement to the board of town auditors and assessor that in their opinion an additional levy of 20 cents on each $100 was needed, and upon that statement the consent of a majority of the board to an additional levy of 20 cents on each $100 was given in writing, and a levy of 80 cents on each $100 was made by the commissioners of highways, and it is contended that, such certificate by the commissioners not having been in writing, it, in law, amounted to no certificate, and that, therefore, the consent of said board was invalid, and did not authorize the levy of the additional tax. We are inclined to agree with such contention. "To 'certify' is to testify to in writing; to make known or establish as a fact." And. Law Dict.; State v. Schwin, 65 Wis. 207, 26 N. W. 568. The oral statement of the commissioners was not such certificate as is contemplated by the statute. The power of the commissioners of highways to impose a tax is limited, and must be strictly construed (Commissioners v. Newell, 80 Ill. 587); and the provisions of a statute designed for the protection of the taxpayer are mandatory, and a disregard of them will render a tax illegal, and the substantial justice of a tax is affected if the authorities attempting to impose it have no power to levy it (Chicago & N. W. Ry. Co. v. People, 193 Ill. 594, 61 N. E. 1100). The board of town auditors and assessor had no power to act until the commissioners of highways certified to them the fact that in their opinion a greater levy than 60 cents on each $100 of taxable property was needed, and, as no certificate to that effect was made to them, their consent was invalid, and the levy in excess of 60 cents on each $100 was void, and the court should have so ruled, the effect of which would have been to have sustained the first objection of appellant to said road and bridge tax.

The judgment of the county court will be reversed, and the cause remanded. Reversed and remanded.

(200 III. 132)

MORRIS et al. v. MALONE. (Supreme Court of Illinois. Dec. 16, 1902.) SERVANT-DEATH BY WRONGFUL ACT-UNDISCLOSED AGENCY OF MASTER-EVIDENCE -SAFE PLACE TO WORK-FAILURE TO GIVE WARNING.

1. Where it is not disclosed to an employé that his employer in hiring him is acting as agent for a third party, the employer will be answerable to the employé for negligence to the same extent as though he were a principal.

2. In an action for negligently causing the death of a laborer working in a vat immediately beneath a rapidly revolving shaft, which caught his clothing and killed him, the evidence examined, and held to sufficiently tend to show a failure on defendant's part to provide deceased a safe place to work, or to warn him of danger, to justify submission to the jury.

Appeal from appellate court, First district. Action by Nora M. Malone, as administratrix of Peter Malone, deceased, against Nelson Morris & Co. From a judgment of the appellate court affirming a judgment for plaintiff, defendants appeal. Affirmed.

F. J. Canty and J. A. Bloomingston, for appellants. John P. Ahrens and F. W. Becker, for appellee.

BOGGS, J. Judgment against the appellant in the sum of $2,000, entered in the superior court of Cook county in an action under the statute by the appellee administratrix for the benefit of the widow and next of kin of Peter Malone, deceased, was affirmed by the appellate court for the First district. The recovery was upon the ground that the said Peter Malone, while in the employ of the appellant company, through the negligence of the company, received personal injuries which caused his death. This appeal asks reversal of the judgment of affirmance upon two grounds: First, that the superior court erred in refusing to admit proper and competent evidence offered in behalf of appellant; second, that the superior court erred in denying the motion, entered by appellant at the close of all the evidence, to instruct the jury to return a verdict in appellant's favor. The evidence which was tendered by appellant and excluded was designed, as counsel for appellant insist, to show that on the day of the accident the appellant company, a co-partnership, "was acting as an agent of the Fairbank Canning Company, and that it was organized as a copartnership simply for that purpose, and for the purpose of selling goods only, and not manufacturing or producing; and for the further reason of showing that the name 'Nelson Morris & Co.' was used simply because it was better known to the trade, and for advertising purposes on that account," and that actually the said deceased, Peter Malone, was in the employ of the said appellant company as agent for the Fairbank Canning Company. The evidence clearly showed that the deceased was employed by

Nelson Morris & Co., and that it was not diselosed to him that said Nelson Morris & Co. was acting as agent for any one, if it was, in fact, so acting. The testimony of the foreman under whom deceased worked, and the man who employed the deceased, was that he, as foreman for Nelson Morris & Co., employed the deceased, and that deceased was in the employ of Nelson Morris & Co. Nelson Morris & Co. was operating the factory in which the accident occurred, as owner and proprietor thereof, so far as the public and the workmen employed therein knew. Upon this point there was no controverting proof. The contention that Nelson Morris & Co. was in fact acting as agent first arose from the offer of the excluded testimony. We think that the agency, if any existed, not having been disclosed, Nelson Morris & Co. became liable for negligence, either by way of misfeasance or nonfeasance, in the same manner and to the same extent as if it were a principal in interest. Malone v. Morton, 84 Mo. 436. The evidence was therefore properly excluded.

The court did not err in refusing to direct a peremptory verdict in favor of the appellant company. The deceased, while in the employ of the appellant company, was ordered to go into a vat, and there receive, and place in even, level rows, hams of about 50 pounds' weight, which were to be conveyed to the vat from the floor above by means of a "chute." The vat was 15 feet long from east to west, 5 feet 4 inches wide, and 4 feet deep. The chute was of the dimensions of 2 feet by 4 feet, and passed from the floor above to the bottom of the vat, dividing the vat into two equal compartments, save that there was a space of about 16 inches between one side of the vat and the chute. The chute was double,-that is, it delivered hams to each compartment of the vat. The compartments of the vat were 62 feet by 5 feet 4 inches, and 4 feet in depth. The deceased was in the easternmost compartment. About 10 inches above that part of the vat in which he was working was a shaft, and an iron rod called a "belt-shifter." The shaft, when in motion, made 500 revolutions per minute. The purpose of the belt-shifter was to shift the belt and put the machinery in motion or throw it out of gear. The shaft passed over the vat at a point about 2 feet west of the east end, and the belt-shifter was some 18 inches still further to the west. The shaft and belt-shifter were 4 feet 10 inches above the bottom of the vat where the deceased was working. If standing upright on the bare floor of the vat, his head and shoulders would have been above the shaft and beltshifter. The shaft was not boxed, or otherwise covered, so as to protect the workmen from coming in contact with it. After the vat was about half full of meat, on which the deceased was standing, the shaft by some means not disclosed, was put in motion, caught the clothing of the deceased, and 65 N.E.-45

whirled him about the shaft and instantly killed him. There were seven other vats in the same room, and the deceased had worked in the other vats, but never before in the one in which he was killed. The shaft did not pass above any of the other vats. The danger which attended the work in this vat was not explained to the deceased, and the shaft was not in motion when he entered the vat. It appeared that the machinery might be put in motion by a pressure of 15 pounds upon the belt-shifter over the vat. The belt-shifter was not boxed, or in any wise protected from contact with the workmen. The evidence tended to show the deceased was not advised, and did not know, that pressure upon the belt-shifter might put the shaft in motion. The testimony tended to show the appellant company neglected its duty to use reasonable care to provide a safe place in which the deceased might work, and negligently failed to advise him of the dangers to which he was exposed by such omission of duty. The court, therefore, properly declined to declare, as matter of law, that the appellant company was free from the negligence charged in the declaration.

The judgment of the appellate court must be and is affirmed. Judgment affirmed.

1.3 Starr & C. Ann. St. 1896, p. 3552, § 14, provides that if, in the opinion of highway commissioners, a greater levy is required than that authorized by section 13, they may certify the same to the board of town auditors and the assessor, and, with the consent of a majority of a board formed by such officers, given in writing, definitely and specifically directing the particular purpose to which such additional levy shall be applied, an additional levy may be made of any sum not exceeding 40 cents on the $100 of taxable property. Held, that the making of a certificate by the commissioners to the board of auditors and assessor and such written consent were jurisdictional, and condi tions precedent to the right to levy the tax.

2. Where, prior to the making of an additional levy for road taxes, the commissioners had no knowledge of an amendment to the statute requiring a certificate of the highway commissioners to the board of auditors and assessor, and the written consent of such board and assessor, a tax including an additional levy laid without such certificate or consent, as authorized by prior act, could not be validated by an amendment of the certificates of the commissioners and the consent of the board of auditors and assessor, allowed by the court on the tria of objections to the recovery of taxes levied.

Appeal from McHenry county court; 0. H. Gilmore, Judge.

Action by the people, on relation of F. F. Axtell, county collector, against the Chicago & Northwestern Railway Company, to recov er highway taxes. From a judgment in fa

vor of plaintiff, defendant appeals. Reversed.

A. W. Pulver and D. T. Smiley (Lloyd W. Bowers and S. A. Lynde, of counsel), for appellant. L. D. Lowell (John B. Lyon, of counsel), State's Atty., for appellee.

CARTWRIGHT, J. The county court of McHenry county overruled objections of appellant to the road and bridge taxes levied in excess of 60 cents on each $100 of taxable property for the year 1901 in certain towns of said county, and entered judgment against the real estate of appellant for the taxes so objected to. Counsel for appellee say that, as to the tax objected to in the town of Greenwood, the record, through mistake or misprision of the clerk, shows that the objection was overruled and judgment entered, when, as a matter of fact, the objection was sustained and judgment refused by the court, and they agree that judgment as to that tax must be reversed. In each of the other towns a levy, in addition to 60 cents on each $100 of the taxable property of the town, was made for road and bridge purposes by the commissioners of highways, with the consent of the board of auditors and assessor. The ground of the objection was that the consents failed to definitely and specifically direct the particular purpose or purposes to which the additional tax levy should be solely applied, as required by the act authorizing such levy, and therefore the attempted levies were void. Section 13 of the act in regard to roads and bridges in counties under township organization is as follows: "At the meeting immediately preceding the annual meeting of the county board, the commissioners shall determine what per cent. of tax shall be levied on the property of the town for road and bridge purposes, and for the payment of any outstanding orders drawn by them on their treasurer, which levy shall not exceed sixty cents on each $100." 3 Starr & C. Ann. St. 1896, p. 3552. Section 14 of that act was amended by an act in force July 1, 1901, so as to read as follows: "If, in the opinion of the commissioners, a greater levy is needed, they may certify the same to the board of town auditors and the assessor, a majority of whom shall be a quorum, and with the consent of a majority of this entire board given in writing, definitely and specifically directing the particular purpose or purposes to which the same shall be solely applied, an additional levy may be made of any sum not exceeding forty cents on the $100 of taxable property of the town. If the commissioners shall use any part of the funds so authorized by said written consent for any other purpose than that therein specified without the further written consent of said board, they shall be deemed to have illegally appropriated the same, and shall be liable accordingly." Laws 1901, p. 274.

On the trial of the objections, the certifi cates of the highway commissioners made to the boards of auditors and assessors in their respective towns, with the consents, in writing, of such boards and assessors attached thereto, were introduced in evidence, and in none of them did the consent definitely and specifically direct the particular purpose or purposes to which the additional levy should be solely applied. On the contrary, the respective boards of auditors and assessors thereby consented to the additional levies for road and bridge purposes to be added to the 60 cents which the commissioners of highways were authorized by law to levy. Prior to the amendment of 1901, said section 14 merely provided that if, in the opinion of the commissioners, a greater levy should be needed in view of some contingency, they might certify the same to the board of town auditors and assessor, a majority of whom should be a quorum, and that, with the consent of a majority of that entire board, given in writing, the additional levy might be made. Before 1901 an additional levy might be made for road and bridge purposes, and added to the levy of 60 cents, as was done in this case. It is manifest that the amendment of 1901 was made with the definite object of limiting the commissioners of highways to 60 cents on each $100 of the taxable property of the town, unless an additional levy should be allowed and consented to, in writing, by the board of auditors and assessors for a definite and specific purpose, and a separate and distinct fund should be raised, to be applied solely to such purpose, and to be kept and accounted for in such a way that the commissioners would be liable if the additional tax should be perverted to any other purpose. The making of a certificate by the commissioners to the board of auditors and assessor, and the written consent definitely and specifically directing the particular purpose of the additional levy, were made jurisdictional, and conditions precedent to the exercise of the right to levy the tax. Unless there has been a strict compliance with the requirements of the statute, any special road tax levied will be void. Commissioners v. Newell, 80 Ill. 587; Mee v. Paddock, 83 Ill. 494; Chicago & A. R. Co. v. People, 190 Ill. 20, 60 N. E. 69.

On the trial the relator called the officials of the various towns concerned in levying and consenting to the taxes in question, and they testified with entire unanimity that they knew nothing about the act of 1901 or the requirements of the act as amended, but that, if they had known of it, they would have levied the tax just the same, and would have complied with the law, and made the certificates in accordance with it, by stating the purpose to which the tax should be applied. It also appeared from their testimony that at the meetings held September 3, 1901, at which the certificates and consents were made, there was talk among the

officers about the necessity of an additional levy, and the purposes for which it would be required, such as that there were a great many bridges to keep up, and roads needed to be repaired and graveled so as to be passable. In the case of one town, certificates of the commissioners stated that they required a further rate of 40 cents, in view of the contingency of erecting a new bridge across the Kishwaukee river in the place of an old one, “and other contingencies." At or shortly before the hearing of the objections, amendments were made by town clerks to the records of the meetings, showing, in substance, that the commissioners asked for additional levies for graveling the roads, or other reasons stated. Upon the strength of this evidence the court permitted the certificates of the commissioners and the consents of the boards of auditors and the assessors to be amended so as to specify certain purposes to which the taxes should be applied. As none of the officials knew anything about the law authorizing them to make an additional levy or consent thereto, and had no intention of complying with it, the case did not come within the rule applied where officials have complied with the law in levying taxes, but have failed to make their action effectual by reason of some technical and formal omission or mistake. Where the power to levy a tax is conferred by law, and is regularly exercised by the proper authorities in substantial conformity to the law, the court, upon proof of such fact, may permit the certificate of the levy to be amended on the hearing by changing the official designation of the officers, allowing the individual signatures to be substituted for the corporate name, and correcting other like formal errors. Spring Valley Coal Co. v. People, 157 Ill. 543, 41 N. E. 874; Chicago & A. R. Co. v. People, 171 Ill. 544, 49 N. E. 489; Chicago & N. W. Ry. Co. v. People, 183 Ill. 247, 55 N. E. 680. But if the statute authorizing the levy of the tax has not, in fact, been followed and complied with, the levy cannot be made valid by amendments of certificates or proceedings, because that would not be a correction of a mere irregularity, but would be an attempt to make valid a levy at the time of the amendment. People v. Smith, 149 Ill. 549, 36 N. E. 971; Chicago & N. W. Ry. Co. v. People, 184 Ill. 240, 56 N. E. 367. There must be a valid levy, which is defective in matters merely formal, to authorize an amendment. In this case, the fact that none of the officials knew of the existence of the law or its requirements is conclusive evidence that they were not following it or attempting to follow it. All that they did or attempted to do was to increase the levies for road and bridge purposes above the rate of 60 cents, just as they might have done under the previous law. The mere fact that the commissioners of highways and boards of auditors and assessors talked over the reasons for additional levies, and the ne

cessity of them, does not show or tend to show any attempt to comply with the act as amended, but such consultation and talk would have occurred under the former law, having no such provisions as the present one. The evidence shows clearly that it was not thought of or intended by any one that a separate and distinct fund was to be created, to be applied to any specific purpose, and accounted for separately and distinctly from the other taxes. The attempted levies of taxes objected to were void for want of compliance with the only statute which authorized them, and they could not be made valid by amending the certificates or consents upon the trial.

The judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in conformity with the views herein expressed. Reversed and remanded.

1. Section 70 of the act in regard to the administration of estates provides that money received in trust by the decedent and not accounted for shall be paid out of the estate by the executor or administrator. A will gave a certain sum to one for life with remainder to another. Held, that an express trust, within the meaning of section 70, was thereby created in favor of the remainderman, and his claim on the death of the legatee for life would be enforceable in the probate court.

2. A copy of a will, certified by the clerk of the court of its alleged probate, was offered in evidence, the certificate stating that the will had been admitted to probate, but being accompanied by no certified copy of the order of probate. The court admitted the instrument over an objection of incompetency. Held, that an objection to the admissibility of the will, based on the lack of the certified copy of the order of probate, could not be urged with effect for the first time on appeal.

3. Where the bill of exceptions failed to show certain motions, or the rulings thereon, they were not made a part of the record, so as to be reviewable on appeal, by being included in the transcript by the clerk.

Appeal from appellate court, Second district; Charles Blanchard, Judge.

Proceedings for the allowance of the claim of Minnie Ruppel against the estate of Elizabeth Schneider, deceased. From a judgment of the appellate court affirming a judgment of the circuit court allowing the claim, WilAfhelmina Deiterman, a legatee, appeals. firmed.

Fred. T. Beers, for appellant. D. B. Snow, for appellee.

CARTER, J. The probate court of La Salle county allowed the claim of appellee, Minnie Ruppel, against the estate of Elizabeth Schneider, deceased; whereupon appellant, Wilhelmina Deiterman, interested in said es