Dissenting Opinion: Brown, J. We see no error in the action of the Circuit Court, and its judgment is MR. JUSTICE BROWN dissenting. Affirmed. I am compelled to dissent from the opinion of the court in this case. I think the company is estopped by its own act to set up the non-payment of the premium as a defence. At the time the original policy was surrendered and the new ones taken out, there had been no failure to pay the premiums as they became due. The surrender was made without the authority or knowledge of the plaintiff, and it is admitted that it was not binding upon her, but it was made by one who did have authority to pay her premiums upon the original policy, and was accepted by the company, and, for the time being, the reduced policies were treated as the only contracts between the parties. In such case the plaintiff was at liberty to ratify the act of her agent or to repudiate it. She took the latter course and brought suit upon the original policy. Under these circumstances she ought not to be prejudiced by the fact that the agent whom she had authorized to pay the premiums betrayed his trust, and attempted to cancel her contract, unless she in some way adopted or confirmed his act. So. far as the surrender was concerned, the defendant dealt with the insured at its peril, and was bound to ascertain whether his act was authorized or not, and is in no position to claim that the plaintiff should have paid the premium upon the original policy when it had itself treated it as cancelled. Having elected to treat the original contract as at an end, it is estopped now to claim that the plaintiff had not performed it. "It is a principle of law that he who prevents a thing from being done shall not avail himself of the non-performance which he has himself occasioned." 3 Addison on Contracts, 798. I think the case of Whitehead v. New York Life Insurance Co., 102 N. Y. 143, is indistinguishable in principle from this, and is a sound enunciation of the law upon the point involved. In that case the Court of Appeals of New York held that where a policy in full force was surrendered by the husband, Dissenting Opinion: Brown, J. without the assent of the assured, the subsequent failure to pay the accruing premiums did not alone warrant a forfeiture; that by the agreement of surrender the insurance company did an act the tendency and purpose of which was to prevent future payments by the parties interested, and the company could not defend upon a default to which its own wrongful act contributed, and but for which a lapse might not have occurred. It is true that it did not appear directly in that case that the insured stated that he was unable to pay the premium, but it does not appear that he was able to pay it, and it is safe to infer that he was not, or he would not have taken a policy for a reduced amount. In neither case was there an actual forfeiture by reason of non-payment of premium before the new arrangement was entered into, though in both cases a forfeiture was probable. The other authorities cited, though not directly in point, all indicate that where the original policy is surrenderd without authority, and a new one taken out, there can be no forfeiture of the original policy for non-payment of premiums, so long as the new policy is outstanding. Manhattan Life Insurance Co. v. Smith, 44 Ohio St. 146; Garner v. Germania Company, 110 N. Y. 266; Pitcher v. New York Life Insurance Co., 33 La. Ann. 322; Schneider v. United States Life Insurance Co., 52 Hun, 130. Inasmuch as no cases are cited of a contrary purport, it seems to me that these authorities settle a principle of law which ought not now to be disturbed. Statement of the Case. ILLINOIS CENTRAL RAILROAD COMPANY v. DECATUR. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 56. Argued November 22, 23, 1892. — Decided January 9, 1893. The provisions in Section 22 of the act incorporating the Illinois Central Railroad Company, (Private Laws, Ill. 1851, 61, 72,) exempting it from taxation, do not exempt it from the payment of a municipal assessment upon its land within a municipality in the State, laid for the purpose of grading and paving a street therein. An exemption from taxation is to be taken as an exemption from the burden of ordinary taxes, and does not relieve from the obligation to pay special assessments, imposed to pay the cost of local improvements, and charged upon contiguous property upon the theory that it is benefited thereby. ON February 10, 1851, an act was passed by the general assembly of Illinois, incorporating the Illinois Central Railroad Company. Private Laws, Ill. 1851, 61. By it the company was made the beneficiary of the land grant from Congress to the State of September 20, 1850. 9 Stat. 466. The 22d section (page 72) was in these words: "SEC. 22. The lands selected under said act of Congress, and hereby authorized to be conveyed, shall be exempt from all taxation under the laws of this State until sold and conveyed by said corporation or trustees, and the other stock, property and effects of said company shall be in like manner exempt from taxation for the term of six years from the passage of this act. After the expiration of six years, the stock, property and assets belonging to said company shall be listed. by the president, secretary or other proper officer, with the Auditor of State, and an annual tax for state purposes shall be assessed by the auditor upon all the property and assets of every name, kind and description belonging to said corporation. Whenever the taxes levied for state purposes shall exceed three-fourths of one per centum per annum, such excess shall be deducted from the gross proceeds or income Argument for Plaintiff in Error. herein required to be paid by said corporation to the State, and the said corporation is hereby exempted from all taxation of every kind except as herein provided for. The revenue arising from said taxation, and the said five per cent of gross or total proceeds, receipts or income aforesaid, shall be paid into the State Treasury, in money, and applied to the payment of interest-paying state indebtedness, until the extinction thereof: Provided, In case the five per cent provided to be paid into the state treasury, and the state taxes to be paid by the corporation, do not amount to seven per cent of the gross or total proceeds, receipts or income, then the said company shall pay into the state treasury the difference, so as to make the whole amount paid equal at least to seven per cent of the gross receipts of said corporation." By section 27 it was provided that "this act shall be deemed a public act, and shall be favorably construed for all purposes therein expressed and declared in all courts and places whatsoever." In 1887, proceedings were had in the county court of Macon County, to defray the cost of grading and paving a certain street in the city of Decatur. Under those proceedings two separate parcels of land belonging to the Illinois Central Railroad Company, and forming part of its right of way, were assessed to the amount of $262.70. The company objected to this assessment on the ground that by its charter it was exempted from all taxation of every kind except as therein provided for, and that there was no provision permitting such an assessment. This objection was overruled, and a judgment entered by the county court against the two parcels of land. Exception was taken, and an appeal allowed to the Supreme Court of the State. In that court the ruling of the county court was sustained, and the judgment affirmed, and the case is now brought here for review by writ of error. Mr. Benjamin F. Ayer for plaintiff in error. The terms of the contract between the State and the railroad company are explicit. Immunity from taxation was not Argument for Plaintiff in Error. granted to the company; but a certain rate and method of taxation, in the nature of a commutation, was agreed upon, and the revenues thus accruing to the State were to be received in lieu of all other taxes. The words are: "And the said corporation is hereby exempted from all taxation of every kind, except as herein provided for." The stipulation has all the elements of a legal contract. There is not only consent on the part of the State, but the consideration to be received by the State was largely in excess of the customary taxes, and therefore more than a fair equivalent for the exemption promised to the company. The constitutional power of the legislature to make the contract is undoubted. That was authoritatively settled by the Supreme Court of the State in 1855, and the decision was affirmed in 1863. Ill. Cent. Railroad v. McLean County, 17 Illinois, 291; Neustadt v. Ill. Cent. Railroad, 31 Illinois, 484. The taxes in question were assessed upon portions of the right of way of the company, that is, upon component parts of the railroad itself. It is not pretended that they are taxes provided for in the charter. If not, how can they be enforced without a plain violation of the contract? The decision of the state court did not proceed upon any denial of the binding force of the contract, but upon an interpretation of the contract, which, it is respectfully submitted, is manifestly contrary to its plain import, and upon certain assumptions, which, with due deference, we say are wholly gratuitous. The taxes in question, it is said, are special taxes, levied on contiguous property for a local improvement, and cannot be regarded as burdens, because the property is supposed to receive benefits equal to the amount of the tax. Therefore, the court said, this is not an ordinary tax, and is not within the exemption clause of the charter. It is quite clear, however, that the power to levy such local taxes is referable to and can be sustained only as an exercise of the power of taxation inherent in the State. It matters not how they are called whether we style them "ordinary" taxes or extraordinary, general or special-or whether they are levied for one public purpose or another; they are not |