Opinion of the Court. explanation why two deeds were executed, there was ample opportunity to obtain it. The witness Senf says that when he undertook to explain the deeds to complainant, at the house where they were executed, the parties talked so much to complainant, and drew his attention to such an extent, that he could not make him understand the explanation; but they left the house soon after, alone, to go to the recorder's office, carrying with them both deeds, and there was certainly nothing to prevent him from explaining the contents to the complainant, had he wished to do so. It is all a sham and pretence the scrivener was prevented from explaining the contents of the deeds to complainant. Abundant opportunity was afforded him to do so, if he had been prevented, as he says he was, from making any explanation at the house by the parties interested, and especially would he have done so after he had been made aware there was a design to conceal from complainant the making of the deed to the boy. The testimony of this witness adds nothing whatever in support of complainant's theory of the case that he was overreached by these two women in the making of the deed. It rather shows, if it proves anything, the deeds were made precisely as the parties all agreed they should be made. The subsequent conduct of complainant strengthens this hypothesis. It is in proof he had both deeds in his possession a long time before the death of his wife, and during all that time he made no complaint, to her or to any one else, the deed to the boy had been wrongfully procured, or that it had been made in fraud of his rights. The scrivener who prepared them, as he well knew, was his friend and acquaintance, and lived only a few miles from him. He could have taken the deeds to him any day and had them explained to him, but this he did not do. Assuming, then, as it is thought the evidence warrants the court in doing, the deed to Heneke was made as it was intended it should be, with the knowledge and consent of complainant, his subsequent conduct is consistent with this theory Opinion of the Court. of the case. It will be remembered the boy was always in delicate health, and constantly grew more infirm, until he became a hopeless idiot. No doubt it was believed by complainant that he and his wife Dorothea would both survive him, and that they would still have the land. This is evident from his interview with the minister, the Rev. Mr. Alberding. He had then become satisfied the death of his wife would soon occur, and his solicitude was how he might still retain the land. The advice he wanted of the minister was, how to get the land. No complaint was made the land had been wrongfully deeded to Heneke. He brought both deeds to the minister from his own custody, and after he had read them he told complainant he could do nothing for him, as the land belonged to the boy. Complainant then told the minister he should do the best for him. The witness then took complainant to the room of his sick wife, and he asked her if complainant should have the land if Wilhelm died, and she said yes, if he would care well for the boy. Prior to the time of the interview with the minister, complainant had both deeds. in his possession perhaps for a period of well nigh, if not quite, five years, and when he brought them out for examination there was no pretence he did not know the land had been conveyed to Heneke, or that it was wrongful, but his whole solicitude was to secure the land in some way, now that his wife was about to die and the boy would survive. Another fact not of much consequence, but it tends in some degree to support this view of the case, is, that after the death of his wife he sued Heneke for his board while he resided in his family, and for the taxes he had paid on the land. That suit was, however, abandoned when this suit was commenced. On the whole record considered, no case is made, by any such clear and satisfactory testimony as the law requires, that would warrant the relief decreed to complainant. The decree will be reversed, and the cause remanded, with directions to the court to dismiss the bill. 36-114 ILL. Decree reversed. Syllabus. 114 562 124 92 114 562 130 581 114 562 140 515 143 104 143 162 114 562 152 545 153 652 THE JACKSONVILLE RAILWAY COMPANY v. THE CITY OF JACKSONVILLE. Filed at Springfield September 23, 1885. 1. SPECIAL ASSESSMENTS for improvement of street-necessity for an ordinance and requisites thereof. A valid ordinance is essential to proceedings by special assessment for the improvement of a street by a city. If the ordinance is invalid, a judgment confirming an assessment on property is not authorized. 2. An ordinance for the improvement of a public street, the cost of which is to be assessed, in whole or in part, upon abutting property, must specify the nature, character, locality and description of the proposed improvement. 3. An ordinance for paving a street partly by special assessment and the residue by general taxation, required the pavement to be what is known as the "Bloomington brick pavement," and the foundation thereof to be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, etc. The estimate of its cost, approved by the city council, showed that cinders were to be used. It was held, the ordinance was not obnoxious to the objection of uncertainty as to the materials to be used for the brick to rest upon. In such case the words, "or other materials," etc., may be treated as surplusage. 4. An ordinance for the paving of a street is not void for uncertainty, because it requires the brick pavement to be laid upon a foundation of sand, gravel or cinders. 5. Nor is such an ordinance rendered invalid by a provision requiring all the work done and materials used to be subject to the approval of the city engineer, and in accordance with the plans and specifications to be furnished by the city council. Such provision does not give him the power to determine the kind of materials to be used, but only the right to see that the materials required are used, and the work done as directed by the ordinance. 6. MUNICIPAL INDEBTEDNESS-constitutional limitation-as affecting power to improve streets, etc. The fact that a city has already exhausted its constitutional power to incur a debt, can not be shown to defeat a proceeding by it to improve a street by special assessment in part, and partly by general taxation. That question can not arise until the city seeks to borrow money or incur an indebtedness in that regard. APPEAL from the County Court of Morgan county; the Hon. MONTREVILLE T. LAYMAN, Judge, presiding. Opinion of the Court. Messrs. MORRISON & WHITLOCK, for the appellant. Mr. RICHARD YATES, and Messrs. SPRINGER & DUMMER, for the appellees. Mr. CHIEF JUSTICE MULKEY delivered the opinion of the Court: This appeal brings before us for review a judgment of the county court of Morgan county, confirming an assessment by the corporate authorities of the city of Jacksonville, against the road-bed and franchise of the Jacksonville Railway Company, for its ratable portion of the costs and expenses of constructing a brick pavement on that part of East State street which lies between the east line of East street and the east line of Illinois avenue, in said city of Jacksonville, to be known as the "Bloomington brick pavement." The commissioners estimated the cost of the entire improvement at $17,569.31. Of this amount $915.43 was charged to the city, to be raised by general taxation, and the balance was assessed upon the abutting property, the appellant's portion being fixed at $1920. On appeal by the company from this assessment, it was reduced by the jury to $1062. Pending a motion for a new trial, the city entered a remittitur of two per cent on the amount found by the jury, which reduced it to $1040.76, for which sum the court entered final judgment, and the company appealed. A reversal is urged, mainly on the alleged ground that the ordinance under which the assessment was made, as passed by the city council, is invalid. The objection, of course, goes to the foundation of the whole proceeding, and if well taken the judgment can not stand. The other points made in the brief go to the form rather than the substance of the proceeding. It is claimed the ordinance is fatally defective in this, that it does not specifically determine the material of which the foundation of the pavement is to consist; that the power to Opinion of the Court. determine whether it shall be of sand, gravel, cinders, or other like material, is, by the ordinance, given to the city engineer, and if not given to him, then no means are provided for determining the question at all, and that in either case the ordinance would be void. In support of this view of the subject the cases of Foss v. Chicago, 56 Ill. 354, Andrews v. Chicago, 57 id. 239, Lake Shore and Michigan Southern Railroad Co. v. Chicago, 56 id. 454, and Lake v. City of Decatur, 91 id. 600, are cited. We fully concede the general principle recognized by these cases, viz: that an ordinance providing for the improvement of a public street, the cost of which is to be assessed, in whole or in part, upon the abutting property, must specify "the nature, character, locality and description of such improvement." This is nothing more than an express requirement of the statute authorizing municipal authorities to make assessments for such purpose. It is clear, therefore, that an ordinance which does not substantially conform to the requirements of the statute in this respect will confer no power on the corporate authorities to make the assessment. The question then resolves itself into this: Is the ordinance under which the present assessment was made, obnoxious to the objection urged against it? The first section of the ordinance, after specifying the loca tion of the improvement, and providing that it shall be paved with brick, proceeds as follows: "The pavement shall be what is known as the 'Bloomington brick pavement.' The foundation thereof shall be laid of cinders, sand, gravel, or other materials equally suitable, at least six inches deep, conforming to the grade to be established by the city, through the city engineer, surfaced by at least one inch of sand. The first course of brick shall be hard paving-brick, laid flat, all joints to be thoroughly filled in with sand,-this course of brick to be covered by at least one inch of sand. The upper course of brick shall be extra hard-burnt paving brick, laid on edge, all joints to be thoroughly filled with sand, leaving |