delivered the following dissenting opinion :
The relator in this case, claiming to be the assignee of Henry G. Hubbard, by assignments made to him, as admitted on the argument, since the passage of the act of the General Assembly of this State, entitled “An Act for the relief of purchasers of Canal Lots in Chicago and Ottawa, in 1836,” (1) of certain certificates of purchase of lots in Chicago, sold as canal property, in that year, applied to the Board of Canal Commissioners to relinquish all the lots designated in the certificates, and apply the purchase money specified in them, to another lot or lots, of which the relator was the original purchaser.
The Board refused the application, and on a case made by the relator and the Board, it being represented here by Mr. Morris, the President thereof, a peremptory mandamus is now moved for, to compel the Board to allow the application.
The relator bases his right to make this application of the certificates of purchase assigned to him, upon the act of 1836-7, pages 153-4, and the act of 1841, above referred to.
The majority of the Court are of opinion, that by a proper construction of those acts, the relator is thus entitled; and as I dissent from them, and believing there are very important interests involved in the construction of the last mentioned act, duty to myself, and respect for them, require that I should state the reasons for such dissent.
The first mentioned act (2) needs no construction; its terms are plain and easily to be understood; its design being nothing more than to place the assignees of purchasers in the same situation with regard to the lot or lots purchased, as the original purchaser occupied, so that patents might issue to such assignees. It was intended to protect and confirm the rights of assignees.
In placing a construction upon the other act—that of 1841— some regard must be paid to the circumstances under which it was enacted by the legislature, for the purpose of discovering, in connexion with its title and language, the object the General Assembly had in view, in passing it. The facts accompanying the sales of canal lots in Chicago and Ottawa, when they were sold, and the object for which they were sold, must also be regarded.
The lands on which these towns are located, was granted to the State for the purpose of constructing a canal, and they were sold to supply means for that purpose. At a time when property of almost every description, and these lots in particular, had a fictitious value put upon them, in 1836, they were offered for sale on a credit of one, two, three, and four years, the purchaser paying in instalments, the amount of his purchase. Some of the purchasers paid one or more instalments as they became due, and some did not; almost all having, when the act under consideration was passed, forfeited their payments to the State, by reason of their noncompliance with the terms of sale. In this attitude, they presented themselves before the legislature. A change of times, which they could not foresee, had disabled them from complying with their contracts, and not wishing that the payments they had made should be wholly lost to them, asked that some terms might be prescribed, by which their payments could be saved to them. They desired relief from the embarrassments under which they were placed, and in a spirit of liberality and justice, the General Assembly declared, in the first section of the act, the terms on which they would grant relief, as follows: “upon the conditions hereinafter mentioned, that is to say, every person who has paid any money upon such purchases, shall first ascertain the amount from the proper authority, and next, he shall have, or procure to be described, the particular lot or land upon which payment shall have been made, and shall be allowed the right to select so much of his original purchase, at his option, as the said payments will cover, deducting from the original price stipulated for, thirty-three and one-third per centum.”
The second section provides for relinquishing to the State, by the purchaser, such lands as he does not choose to purchase, and make his selection known to the Board, who are to procure and deliver to the purchaser, a deed or patent for the part selected.
The third section requires, that if there is any balance due the canal fund, after making the above deduction of 33^- per cent., it shall be promptly paid by the purchaser; and in no case is the Board allowed to issue scrip of forfeited payments, that may in any event become currency, for the payment of any other lands or lots belonging to the canal, at any other than the amount of purchase ; but if any balance is due the purchaser, it shall' be liquidated by the conveyance of lands or lots originally sold, and at the original amount or price given at the time of purchase, with the above deduction.
The fourth section authorizes a purchaser to relinquish a part of a lot by fourths, or halves, in proportion to the above depreciation, by a certain mode of subdivision.
The fifth section authorizes “ any purchaser as aforesaid,” to place his payment, which has been forfeited, on one piece of land, not a town lot, or one or more town lots, or such particular lot or piece of land as he may deem proper, at the original purchase price, with the above deduction, but in no case is he allowed to place this payment on any other lands or lots, at any other price, or valuation, than the depreciated valuation.
The sixth section requires the Canal Commissioners to keep a just and full record of all proceedings under the act, and report the same to the next meeting of the General Assembly.
The seventh section is in these words : ■“ The rights of the purchasers under the provisions of this act, may be the subject of transfer in writing, signed by the purchaser, or his legal representative, which shall be filed and recorded by the Boarda proviso follows, restricting the act to town lots sold in Chicago and Ottawa, in 1836; “ being for the relief and benefit of those purchasers and none others.”
The terms of this act, would lead me to believe that it was originally intended by some of those interested in its passage, if the construction placed upon it by the relator, be the correct one, to perpetrate a great injury upon the State, which the proviso in the last section prevented. The law was made applicable to canal lands sold on a credit, and after being stripped of their timber, they could be relinquished to the State, and the amount paid on them applied to other lands. The legislature never would have passed this law, if such consequences were to flow from it; and yet they would most certainly have resulted, if the proviso had not been inserted at the end of the act.
It can hardly be believed, if the proviso was not in the act limiting it to town lots, that the act would receive a construction by which the consequences I have alluded to, would be produced; yet if it is liable to the meaning the relator contends for, as applicable to town lots alone, it would be equally so, without the proviso, to lands, and the canal fund thus subjected to immense injury and waste. The purchaser of a tract of timbered land, after getting from it all that made it valuable, would sell and assign his certificate to another purchaser, who had purchased another tract for agricultural purposes, to complete his payment to the canal fund. In this way, this fund would bear all the loss arising from these spoliations, in addition to that which would result from receiving the certificate in payment, instead of the money which would be paid by the other purchaser, who had improved his land. It would be a censure upon the intelligence of the legislature, to suppose they intended any such thing.
Their intention was merely to afford relief to the original purchasers of lots, and the whole plan of relief is fully developed by the first and fourth sections of the act. It is munificent and paternal, enabling a purchaser to complete his title to as many lots, or parts of lots as his payments might cover; and the original price reduced 38^ per cent. This, in my judgment, is all the act intends, to relieve the purchasers from their obligations to pay any more money to the canal fund, except the balances that their certificates may not reach, after making the above deduction; to permit them to have the full advantage of the money they have paid, in one or moré lots, or parts of lots, of their original purchases.
With all becoming deference to the opinion of the majority of the Court, it seems to me, that any further extension of the act, by construction, would subvert the design the legislature had in view,. in passing it; would open wide the door for fraud and speculation, and deprive the State of a large portion of its anticipated means to complete a most magnificent enterprise.
By the construction given to the act, a person who purchased in Chicago or Ottawa, from Canal lots, for example, in 1836, at the price of $1000 each, and has paid one half the purchase money on each lot, may abandon all his purchases ; dispose of his certificates by assignment, to a person who has a payment to make on a valuable lot he has purchased, and designs to retain, and thus enable this purchaser to complete his payments. And here the question may be asked, how is the Board of Commissioners to protect the State against fraudulent assignments of these certificates? How can they test their validity ? No mode is pointed oupby the act; and thus it may become, not a measure of relief, but a source of great and extensive frauds. By this construction, the four lots partially paid for, and perhaps of but little value, will be abandoned to the State, and the canal fund deprived, it may be, of many' thousand dollars. By the construction for which I contend, the purchaser of the four lots may select any one or more of them, or any of their parts, equal to one-half or one-quarter of a lot, and apply the money paid to the part thus selected, be it one lot, a half, or a quarter lot, and completing his payments in this way, by relinquishing the balance of the lots, obtain a title to the part retained, and his assignee, under the seventh section of the act, is enabled to do the same thing, and nothing more. He can select any lot or part of lot indicated in the certificate he holds by assignment, and relinquish the part which the payments made will not cover.
If, under the construction contended for by the relator, these certificates of original purchase are to become an article of traffic, ' then the canal fund must be subjected to a very heavy loss. It is no doubt the fact, that very many of the lots have lost the principal value set upon them, at a time when speculation was so rife in that region, and elsewhere. Some of them may be of a nominal value only, on each of which payments have been made to the amount of a thousand dollars, for which certificates are held by the original purchaser, or his assignee, under the act of 1836. This money was forfeited to the State, before the passage of the act of 1841; and consequently, the certificates were greatly depreciated, and really of no value. By the act of 1841, value was given to them, in the hands of the original purchasers, to the extent of such parts of their purchases as the payments made would cover; but by the construction given to the law, if the lots specified in them should not be of much value, they can be raised from them, and thrown into market for sale. A may hold four such certificates, each indicating the payment of $1000, but now so much under par, by reason of the real want of value in the lots purchased, as to be worth only $100 each. He sells one to B, to C, to D, and to E, each of whom have payments of $1000 to make, on valuable lots they have improved and desire to retain. Each one buys a certificate of $1000, for $100, by which each one pays the canal fund the debt he owes, and so in greater or less proportion, according to the scale of depreciation. In this way the canal fund loses, by each of these purchasers, the whole amount due from each one, which he would otherwise have paid to secure his lot. This act would thus create a depreciated paper, with which to pay these debts, and bring upon the canal fund these heavy losses, to an extent I have no means of ascertaining, but certainly not inconsiderable. It is, in truth, giving that amount to each purchaser of a valuable lot. Can it be supposed that an act intended for relief only, was to be made the instrument of so much mischief? That the legislature would surrender up in this manner, the property and interests of the State, of which they were the constitutional guardians ? I cannot believe it; and finding nothing in the act forcing me to such a conclusion, I cannot arrive at it. According to my understanding of the act, the original purchaser himself cannot surrender the whole of his purchase, and apply the money paid on it to another lot. Why then should his assignee have the privilege ? There can be no reason shown why he should possess a right the original purchaser does not possess. I cannot believe that the legislature intended any such application of the certificates as the relator claims; there is nothing in the act indicating, to my mind, such an intention.
In doubtful cases, such as this must be admitted to be, a construction should not be given to a legislative act, which may work a great public injury; the reasonable presumption always existing, that no such consequences were intended. I am, therefore, of opinion the mandamus should not be awarded.
Treat and Douglass, Justices, also dissented.
Peremptory writ of Mandamus awarded.
Laws of 1841, 49—50.
Laws of 1836-7,153-4.