Mr. Justice MAGRUDER, dissenting.

Galesburg v. Hawkinson, 75 Ill. 152). If these duties are judicial in character the county court cannot delegate them, nor can the legislature authorize the county court to delegate them, to other parties. (Cooley on Cons. Lim. 5th ed. top page 506; Hall v. Marks, 34 Ill. 358; Hoagland v. Creed, 81 id. 506; 83 id. 601; Meredeth v. The People, 84 id. 479). If they are merely ministerial or administrative, they cannot be delegated, because where a court is compelled to perform a ministerial act, such act is so performed as an incident to the exercise of judicial power. (Owners of Lands v. The People ex rel. 113 Ill. 296).

But independently of the question of delegation of power, the judges of the Circuit Courts of this State cannot be called upon to perform official duties, whether of a judicial or ministerial character, at the beck and call of a county judge. Nor is there any authority in the constitution for the formation of a tribunal composed of a county judge and two circuit judges, acting together in the manner prescribed by this Act. Section 1 of Article 6 of the constitution provides that "the judicial powers, except as in this article is otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns." But the judicial power vested in a court of a certain class must be exercised by that court sitting alone, and not in combination with some other court of a different class. The constitution contemplates official action by the Supreme court as such, by the circuit court as such, and by the county court as such, and not by boards made up of members selected from these different courts, and especially when such selection is made by the judge of one only of such courts.

Certain duties, which are ministerial or administrative and not strictly judicial, are sometimes imposed upon courts. (The People v. Morgan, 90 Ill. 558; Owners of Lands v. The People, supra.) But in such case the court is one already ex

Mr. Justice MAGRUDER, dissenting.

isting and organized in a constitutional way. The legislature has no more right to create a new tribunal, by the fusion of existing judicial tribunals, for the performance of ministerial acts, than it has to form such tribunal for the exercise of judicial power.

By the provision now under consideration, the circuit judges who are to assist the county judge, are not even designated by the act itself, but their designation is left to the arbitrary dictation of the county judge. The county judge of a particular county may call upon any two judges residing anywhere in the State to come to his side to assist him in fixing the boundaries of a sanitary district. The constitution requires circuit judges to be elected by the people, supreme court judges to be elected by the people, county judges to be elected by the people, but the Act now under consideration assumes to authorize a county judge to create a judicial tribunal by his own fiat and independently of any action by the people. This provision of the Act violates the principle of uniformity required by section 29 of article 6 of the constitution, which provides that "all laws relating to courts shall be general and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgment and decrees of such courts, severally, shall be uniform."

Here, a certain class of duties, or a certain kind of jurisdiction, is imposed, not upon all circuit judges in the State, but upon such of them as may happen to be chosen by a county judge in a particular class of counties. It makes no difference that the act to be performed may not be altogether judicial in its character. It will not be contended that the appointment of a stenographer by a circuit judge is an exercise of strictly judicial power. And yet we held in The People v. Rumsey, 64 Ill. 44, that a law authorizing the appointment of stenographers by the circuit courts of Cook county, where the

Syllabus.

other circuit courts of the State had no power to appoint such officers, was in violation of section 29 of article 6. It is contrary to both the letter and the spirit of the constitution to clothe a judge of a court of one grade or class with the authority to pick out judges of another grade or class, and assign them to the performance of duties of a particular kind, or call upon them to assist him in the performance of his own duties.

GEORGE W. RIGGS et al.

v.

STEPHEN A. D. GIRARD et al.

Filed at Springfield June 12, 1890.

1. LIMITATIONS-act of 1839-color of title. A sheriff's deed for land on a sale for taxes, and a deed from the sheriff's grantee purporting to convey, is good color of title under the Limitation law of 1839.

2.

SAME-possession under act of 1839-by whom-as, by a tenant-or the widow. To create the bar of section 1 of the Limitation act of 1839, it is not necessary that the person claiming the land shall actually reside on it or cultivate it. The requisite possession may be shown in different ways, and that by a tenant is enough. The possession of a tenant, or one in the position of a tenant, will inure to the benefit of the holder of the color of title.

3. A party holding color of title took possession of the land in the spring of 1863, and died in December following, leaving a widow and children. His widow continued to hold possession from her husband's death to January, 1884, and paid all taxes on the land from 1874 to 1883, inclusive, and after the widow's death the heirs paid the taxes: Held, that the widow's possession and payment of the taxes inured to the benefit of the heirs, and constituted a bar to an action by the holder of the former paramount title.

4. DESCENTS-as to color of title. Upon the death of the holder of color of title to land in possession thereof, his title descends to his children as tenants in common, and they will take a present vested interest, subject to the rights of the widow in the premises.

5. DOWER-before assignment-character of the right. Until dower is assigned, the widow does not become seized of an estate of dower in

Brief for the Appellants.

land. All she has is a right, resting only in action, to have her dower assigned, and she does not become the tenant of the heirs.

6. SAME-widow's quarantine-right of possession under former stat-. ute-not adverse to the heirs. Under a former statute, known as the "Widow's Quarantine law," in force in 1863, the widow was vested with a right of possession to the home farm, a position analogous to that of a tenant of the heirs, free from molestation and rent. Her right of possession was defeasible upon the assignment of dower, but when it was not assigned the right of possession continued for her life.

7. A widow's possession under the statute which gave her the right to retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, with the out-houses and plantation thereto belonging, free from rent, until her dower should be assigned, was not adverse to the title of the heirs, but was entirely consistent and in harmony with such title.

APPEAL from the Circuit Court of Fulton county; the Hon. JOHN C. BAGBY, Judge, presiding.

Mr. JAMES C. CONKLING, for the appellants:

A widow has a right to retain possession of the entire homestead premises until her dower is assigned, unless transferred, lost, or forfeited by her own acts. Dower act of 1845, sec. 27; Doane v. Walker, 101 Ill. 635; Trask v. Baxter, 48 id. 407; Strawn v. Strawn's Heirs, 50 id. 257.

The widow had a right to the exclusive possession, and to lease and receive the rents. The possession of her tenants (or family) was her possession. Clark v. Burnside, 15 Ill. 63. If the heirs had obtained possession without her consent, she could have maintained ejectment against them. Wolf v. Wolf, 67 Ill. 56.

It is the duty of a party in possession, though wrongfully, to make reasonable repairs and pay the taxes. Doane v. Walker, 101 Ill. 642.

If a widow receives all the rents she must pay all the taxes. Strawn v. Strawn, 50 Ill. 263.

A tenant for life is bound to keep down the taxes. Peck v. Sherwood, 56 N. Y. 615; Prettyman v. Walston, 34 Ill. 192; Carter v. Youngs, 42 N. Y. 422; Owen v. Peacock, 38 Ill. 37.

Brief for the Appellants.

The defendants rely upon section 6 of the Statute of Limitations for a defense. But color of title, possession and payment of taxes for seven successive years, must all concur before the statute will begin to run. Heacock v. Lubuke, 107 Ill. 403; Clark v. Lyon, 45 id. 391; Wettig v. Bowman, 47 id. 19.

In this case, the possession of defendants did not commence until the death of their mother, in January, 1884, and they did not begin to pay taxes in their own right until the spring of 1884. The bar was not therefore complete before this action was brought.

Neither can defendants maintain their defense under section 4 of the Statute of Limitations, concerning seven years' residence under a connected title deducible of record. They produced a sheriff's deed for taxes as the foundation of their title, but they did not show the authority of the sheriff to sell. They should have produced the judgment and precept, to make out a title deducible of record. Hinman v. Pope, 1 Gilm. 131; Atkins v. Hinman, 2 id. 437; Elston v. Kennicott, 46 Ill. 196.

But defendants did not have such a residence as is contemplated by law. The residence was that of Mrs. Girard, their mother, until her death, in 1884. Until then, her possession or residence was exclusively her own, and for her own benefit. During her estate for life her residence could not be their residence, under this statute. Martin v. Judd, 81 Ill. 488; Clark v. Burnside, 15 id. 63.

The intent of the framers of this act in requiring possession by actual residence, was to require such a possession as could afford to the holder of an adverse title the best notice. It must be an open and notorious possession. Martin v. Judd, 81 Ill. 492.

No suit could have been maintained by Riggs against the heirs before their mother's death. Therefore the statute did not commence to run in their favor, against Riggs, until he had a right to enter. Higgins v. Crosby, 40 Ill. 262.