The herald., 1897-11-30
j OFFICE or THE HERALD
LOS ANGELES. Nov. 20. 1897.

i.ASS94e ~---
fystem Of land transfers in Illinois has
&ised questions of wide interest. The
0rst law enacted was annulled by the
isppreme court Of the state on the ground
that judicial powers were conferred on
registrars contrary to the provisions
of the state constitution. A second law,
framed to meet objections. is now be-
fore that court. and the attack upon its
ponstitutionality alleges that private
property rights are interfered with. 1t
10 contended that the act proposes to
transfer the property of one man to an
lothor without his consent, under the
guisc ofan assurance fund, and the ques-
tion is also raised whether after the title
is registered the registrars methods do
not involve transfer of property with
out the owners consent. To the latter
contention the answer Ia made that only
the actual owner can become the regis
tered owner, and an owner may in the
exercise Of inherent right. with consent
Of the legislature, grant to the registrar
the powers to be exercised by him sub
seQuent to registration. SO far as the
former contention Is concerned, how
ever, opponents OF the law have the adj
vantage of a decision by the supreme
court of Ohio which killed the attempt to
introduce the system in that state. The
bearing of that decision, says the Liter
,ary Digest, upon the present case in Illi-
uois is discussed as follows by the Chi
cago Evening Post:
''The law provides that an assurance
fund shall be raised by tho payment by
the petitioner, when he brings his lands
under the act, of one-tenth of per cent
OF the value of the land, and that the
devisee or heir shall pay the same
amount when the title Ia transferred to
him. With reference to this provision,
the supreme court Of Ohio used the fol-
lowing emphatic expressions: The terms
OF these sections of the act show that the
FUND is to be raised to indemnify those
whose lands have been wrongfully
wrested from them under the earlier pro-
visions OF the act, and without due pro-
cess OF law When the provisions of the
constitution are applied to this peniten-
,tial scheme, 1t Mt once becomes apparent
that 1t Is both inadequate and forbidden.
The assessment Is further declared by
the court to amount to the taking Of
property by public authority without
the consent of the owner. The appeIlees,
In their argument. criticise very severely
this language. They aver that the opin-
ion In the Ohio case betrays not only op-
position to but misconception and per-
version OF the TOrrens principle, There
In tHr.n so Al. 4
OF Illinois that justifies the treatment Of
the assurance fund as a source of COM
pensatfon for the wrongful taking of
private property, either for public or pri-
vate use, AS the point of extreme impor-
tance, 1t demands closer examination.
Is the money assessed for the assur-
ance fund taken without the consent of
the owner? So far as the registered
owner of'the land Is concerned the ques-
tion can not nationally be an
uwered in the affirmative. The act
ls not compulsory; no owner Is
obliged to bring his land or title under
It. The man who registers his land
does so uponhis own choice and upon his
own petition. But the law'distinctly de-
clares that the bringing sof land under
this act shall imply an agreement which,
shall run with the, land that the same
shall be subject to the terms of the act
In other words, whoever voluntarily ac-
cepts the benefits of the act must also
assume the conditions and burdens i'm
posed. The assessment is one of the bur-
dens, hence in applying for registration
the owner agrees to make the required
payment AS to tax-buyers, heirs and
devisees, the answer is equally plain and
conclusive, A tax-buyer gets what is
onered for sale, neither more nor less,
and he ts not obliged to make the pur-
chase. The heir or devisee takes the
land subject to the terms of the act under
which the registered owner bought it.
Still the objection raised by the Ohio
court is not completely disposed of. The
very existence of the assurance fund
proves that some rights may be ad-
versely affected and cut off without the
consent and knowledge of their pos
SCISSOR, and as to those rights the ques-
ton still remains whether property is
not taken for private use. The Ohio
court caustically says that the 'peniten-
tfal scheme of paying in specie for land
alienated without consent Is both mad
eQuate and forbidden by the constitu-
tion OF that state. Is not the same
remark true Of the Illinois consti-
tuition? On this point the ar
gunent (of appellees) Is weak an incon-
elusive. To say that the calls upon the
indemnity fund are not likely to be fire.
quent, or that no system can be devised
In which there would be no liability to
loss, Is to make q sound. practical an
swer, but hardly a satisfactory answer
to constitutional exception. How often
a wrong will occur under law can not
be considered In determining the ques-
tion Of constitutionality."
= =
An important change lin the direction
OF the San Francisco Market Street rail-
way Is thus noticed in the Chronicle:
I. w. Hellman. president of the Ne
vada bank. became a member of the
board Of directors Of the Market Street
Railway company yesterday. At the
monthly meeting Of the directors Of the
street railway company yesterday af-
ternoon, w. J. Adams, who has long held
place on the board by virtue of his
large holdings Of stock, rendered his res
ignation and Hellman was elected to
the vacancy. Another change in the
board was the retirement of Will H.
Crocker and the election Of Henry T.
Scott In his stead, Adams was one of
the large stockholders in the Powell
street system before that line became
amalgamated with the Market street
system. and after the consolidation he
accepted stock in the big company in
exchange for his holdings in the Ferries
and Clif House line, and was given O