Smith, Justice,
delivered the opinion of the Court:
This case is submitted by the parties to the Court, for its decision on the statement of facts contained in an agreed case.
It is an application for a writ of peremptory mandamus, against the Canal Commissioners, to compel them to allow the relator to make a selection of a certain lot, to wit, number four [4] in block number two [2], in the original town of Chicago, heretofore purchased by the relator, at a public sale of lots, in that town ; and to apply certain certificates of purchase of other lots, in said town, and payments made thereon, by himself, as, also, four other certificates of payment, by another person, which have been bona fide assigned to the relator ; and for such Commissioners to accept and receive the same, on the relator’s relinquishing- all his title to the lots specified in the three other certificates of his purchase, and of the four assigned certificates, under the act entitled “ An Act for the relief of purchasers of Canal lots in Chicago and Ottawa, in 1836,” approved 27th of February, 1841;
The better to understand the character of the application, and its merits, it will be necessary to briefly recite the provisions of the act. The first section declares, that all persons who have, heretofore, purchased any of the property belonging to the canal, any of the canal lands, or of any of the lots in any town sold by the authority of the State ; and who have made advances to the State, by way of payment for the same; and who have, by any means, forfeited the same, by not complying with the other stipulations of the contract, shall be entitled to the relief hereinafter granted, upon the conditions hereinafter mentioned, to wit: 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, 33£ per centum.
The second section provides, that the purchaser shall relinquish all claim to the lots or lands which he does not choose to purchase, (that is, to complete the payment on deducting 33^ per cent.,) and, in writing, make his selection known to the Board of Canal Commissioners, who are directly authorized and required, to procure and deliver to such purchaser, a deed or patent for the lands or lots, agreeably to the laws in force for patenting lands and lots sold by the Canal Commissioners.
The third section provides, that if any balance shall be due by the purchaser, that the same shall be paid; but if there is a balance due to the purchaser, after his selection, and application of payments, then it shall be liquidated by a further conveyance, by the Commissioners, of other lands or lots, originally sold, at the original price, deducting 33-^ per cent.
The fourth section declares in what manner the division or subdivision of lots may be made.
The fifth section provides, that payments may be placed on land other than town lots, though this provision is supposed to have been rendered nugatory by the proviso to the seventh section of the act, which confines the act to the town lots of Chicago and Ottawa.
The sixth section requires a record of the proceedings had, under the act, to be kept by the Commissioners, and a report to be made to the General Assembly.
The seventh section declares, in these words, that “ 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 Board.”
This is an analysis of the whole act.
Before proceeding to an examination of the rights conferred on the purchasers, and the duties required by the Commissioners, under the several provisions of the act applicable to the present case, it may not be improper to enquire whether, if the Commissioners, in the execution of their duties under the act, had allowed parties who were original purchasers, and who had made their payments of instalments, as they became due, according to contract, and who were not in default, and had not, in any way, incurred a forfeiture, by not complying with the stipulations of the contract, to avail themselves of the full benefits of the act, such a decision would have been against the equitable construction of the act. It is true it would have been out of the letter of the act, for the first section requires that these facts shall concur, to entitle the party to the benefit of the law:
First. That he shall be an original purchaser of a lot.
Second. That he shall have made advances by way of payment for the same.
Third. That he shall have forfeited the lot purchased, by not complying “with the other stipulations of the contract,” beyond the first payment. Now the party who had punctually, and in good faith, observed the performance of his contract, is not recognised, by the letter of the act, as one of the persons for whose benefit the act was adopted; yet it would be repugnant to every principle of equity and exact justice, to exclude him from a participation in its equitable objects.
It could not have been intended, that he who had been unable to complete his engagement, or unwillingly neglected its performance, should alone reap the beneficent provisions contemplated by its framers, and intended to be conferred alike on the purchasers of the property sold by the State, at a price admitted to have been .greatly beyond its real value, at the time of sale; while it is certain that a construction admitting a party, in such a case, to participate in the benefits of the law, could not be rested on its letter; the spirit, intention, and equity of its provisions, would abundantly sustain the propriety of such a decision. The relief was not intended to be partial, and confined to those alone who had forfeited their titles. Its objects were broad and comprehensive, and it was intended that all purchasers should participate equally in its liberality. Suppose that another class of cases had been admitted to a participation in the benefits of the act, viz., such persons as took advantage of the previous act, of 2d of March, 1839, allowing a postponement of payment for twenty years, on paying yearly six per cent, interest on the original purchase money.
In admitting this -class of purchasers to a participation in the present law, it would be done under a liberal construction of the act, bearing in view the object and intention of the legislature, and might, under such a principle, be correctly done.
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Smith, Justice,
delivered the opinion of the Court:
This case is submitted by the parties to the Court, for its decision on the statement of facts contained in an agreed case.
It is an application for a writ of peremptory mandamus, against the Canal Commissioners, to compel them to allow the relator to make a selection of a certain lot, to wit, number four [4] in block number two [2], in the original town of Chicago, heretofore purchased by the relator, at a public sale of lots, in that town ; and to apply certain certificates of purchase of other lots, in said town, and payments made thereon, by himself, as, also, four other certificates of payment, by another person, which have been bona fide assigned to the relator ; and for such Commissioners to accept and receive the same, on the relator’s relinquishing- all his title to the lots specified in the three other certificates of his purchase, and of the four assigned certificates, under the act entitled “ An Act for the relief of purchasers of Canal lots in Chicago and Ottawa, in 1836,” approved 27th of February, 1841;
The better to understand the character of the application, and its merits, it will be necessary to briefly recite the provisions of the act. The first section declares, that all persons who have, heretofore, purchased any of the property belonging to the canal, any of the canal lands, or of any of the lots in any town sold by the authority of the State ; and who have made advances to the State, by way of payment for the same; and who have, by any means, forfeited the same, by not complying with the other stipulations of the contract, shall be entitled to the relief hereinafter granted, upon the conditions hereinafter mentioned, to wit: 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, 33£ per centum.
The second section provides, that the purchaser shall relinquish all claim to the lots or lands which he does not choose to purchase, (that is, to complete the payment on deducting 33^ per cent.,) and, in writing, make his selection known to the Board of Canal Commissioners, who are directly authorized and required, to procure and deliver to such purchaser, a deed or patent for the lands or lots, agreeably to the laws in force for patenting lands and lots sold by the Canal Commissioners.
The third section provides, that if any balance shall be due by the purchaser, that the same shall be paid; but if there is a balance due to the purchaser, after his selection, and application of payments, then it shall be liquidated by a further conveyance, by the Commissioners, of other lands or lots, originally sold, at the original price, deducting 33-^ per cent.
The fourth section declares in what manner the division or subdivision of lots may be made.
The fifth section provides, that payments may be placed on land other than town lots, though this provision is supposed to have been rendered nugatory by the proviso to the seventh section of the act, which confines the act to the town lots of Chicago and Ottawa.
The sixth section requires a record of the proceedings had, under the act, to be kept by the Commissioners, and a report to be made to the General Assembly.
The seventh section declares, in these words, that “ 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 Board.”
This is an analysis of the whole act.
Before proceeding to an examination of the rights conferred on the purchasers, and the duties required by the Commissioners, under the several provisions of the act applicable to the present case, it may not be improper to enquire whether, if the Commissioners, in the execution of their duties under the act, had allowed parties who were original purchasers, and who had made their payments of instalments, as they became due, according to contract, and who were not in default, and had not, in any way, incurred a forfeiture, by not complying with the stipulations of the contract, to avail themselves of the full benefits of the act, such a decision would have been against the equitable construction of the act. It is true it would have been out of the letter of the act, for the first section requires that these facts shall concur, to entitle the party to the benefit of the law:
First. That he shall be an original purchaser of a lot.
Second. That he shall have made advances by way of payment for the same.
Third. That he shall have forfeited the lot purchased, by not complying “with the other stipulations of the contract,” beyond the first payment. Now the party who had punctually, and in good faith, observed the performance of his contract, is not recognised, by the letter of the act, as one of the persons for whose benefit the act was adopted; yet it would be repugnant to every principle of equity and exact justice, to exclude him from a participation in its equitable objects.
It could not have been intended, that he who had been unable to complete his engagement, or unwillingly neglected its performance, should alone reap the beneficent provisions contemplated by its framers, and intended to be conferred alike on the purchasers of the property sold by the State, at a price admitted to have been .greatly beyond its real value, at the time of sale; while it is certain that a construction admitting a party, in such a case, to participate in the benefits of the law, could not be rested on its letter; the spirit, intention, and equity of its provisions, would abundantly sustain the propriety of such a decision. The relief was not intended to be partial, and confined to those alone who had forfeited their titles. Its objects were broad and comprehensive, and it was intended that all purchasers should participate equally in its liberality. Suppose that another class of cases had been admitted to a participation in the benefits of the act, viz., such persons as took advantage of the previous act, of 2d of March, 1839, allowing a postponement of payment for twenty years, on paying yearly six per cent, interest on the original purchase money.
In admitting this -class of purchasers to a participation in the present law, it would be done under a liberal construction of the act, bearing in view the object and intention of the legislature, and might, under such a principle, be correctly done. To determine, however, the question presented, we are to apply the well known and acknowledged rules applicable to the construction of statutes; to look at the real object and intention of the law maker, as gathered from a comparison and examination of the whole context of the act, its spirit, and import.
The act in question, as its title indicates, is for the relief of the purchasers of the lots designated in the law; and hence it is important to enquire what is the relief thus granted.
First. It is a right of relinquishment of purchase.
Second. A transfer and consolidation of purchases and payments, from one or several lots, to one or more, in full payment and obtention of complete title.
Third. A right of the purchaser of selecting such a portion of a lot, as his previous payments will cover, and the relinquishment of the residue of the lot.
Fourth. If his several payments will more than cover the price of a single lot, then the residue is to be extinguished, by a conveyance of so much of another lot, which has been relinquished, as the excess will pay for, not less than the legal subdivision named in the act.
Fifth. A discount of 33| per cent, from the original price.
Sixth. A power to transfer his rights to another, by assignment, vesting his title in his assignee.
Under these rights, thus acquired by the law, it is conceded, that if a person purchased originally more than one lot, on which he had made previous payments, he may relinquish as many of the lots purchased as may be necessary, and transfer and apply his payments made on such lots, to the one lot which he desires to retain, and thus obtain, by full payments, a perfect title to the whole lot.
That if he is an original purchaser of a single lot, and has made one payment thereon, and has acquired, by assignment from another purchaser, who has made a payment on a lot, his certificate of such payment, before the passage of the act, he may then apply the amount of such payment, expressed in the certificate, to the lot he originally purchased, and if it completes the payment, deducting the 33£ per cent, from the original price of the lot he desires to retain, obtain a title therefor.
So where he has acquired a title by assignment of certificate, and becomes a purchaser by assignment, before the passage of the act, not being an original purchaser -himself, he may make a consolidation of payments, on one or more of the lots acquired by assignment, and obtain a title.
If these payments and consolidations may be done because the first is within the letter, and the two latter cases are within the intention, spirit, and equity of the act, and its objects are best carried out by such an interpretation, why may not Hamilton, the relator, who is a purchaser by assignment, apply his certificates to the extinguishment of the amount due on lot four, [4] originally purchased by him ? His case is surely not less equitable because he may be supposed' to have acquired the certificates by assignment after the passage of the act, but which fact does not so appear in the case; and he may as well be presumed to have acquired them before, as after the passage of the law. But if such were the fact, it would surely not alter the justice or equity of the case, or change his rights. His assignor had the right of consolidation and relinquishment under the act, and why shall not the legal assignee possess all the rights of the assignor, which must have passed to him by the transfer ? What, it may be asked, is the difference in the present case, in allowing the relator to consolidate the assigned certificates with his own .on one lot; or compelling the assignor to consolidate his three certificates on the fourth. In the one case, seven out of eight lots are relinquished, and in the other, six. Of what importance can this be in a pecuniary point of view ? None, it is apprehended, unless it be that by compelling the assignor, Hubbard, to consolidate, the State looses the 33-J- per cent, discount on the value of the lot he retains, while, if Hamilton applies the four certificates assigned to him, the State saves the discount which Hubbard would receive.
Let it, however, be enquired whether, even under the letter of the act, the right of the assignee is thus restricted and limited, as is contended.
The seventh section of the act, declares that 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 Board.
For what purpose or object was this provision inserted, if it did not intend thereby, to directly recognise the right contended for? What meaning shall be attached to it, if this is not the true one ? It could not be supposed to refer to the right of mere assignment of certificates, without carrying with it the interest acquired by the passage of the act, because the act of the 16th of January, 1839, in force at the time of the passage of this act, had already made ample provision for such assignments and transfers, and authorized patents to issue in the name of the assignee.
Again. Could the terms used, of rights acquired under the act itself, be construed to be rights acquired before the passage of the act ? Certainly not. May it not then be justly said to refer to the right of relinquishment, the right of consolidation of payments, the right of deduction of 33$ per cent, of the price of the original purchase ; and that rights so acquired, should be the subject of assignment and transfer ? If, then, this section be construed, as its language would clearly import, and when taken in connection with the contexts of the other parts of the act, its spirit and equity imply, there is no difficulty in declaring the right to exist as asserted ; and a decision in affirmance of such right, but declares the actual and evident intention of the framers of the act. Suppose, however, that this construction be rejected, and that in construing the act, the words “ under the provisions of this act,” in the seventh section, be rejected, as useless and surperfluous words, leaving the sentence to read thus : “ The rights of the purchaser may be the subject of transfer in writing signed by the purchaser or his legal representative.” What rights, we ask, are declared shall be the subject of transfer ? It is most evident, that it is the previous right acquired by the original purchaser, under the sale, which is thus declared shall be the subject of transfer in writing; and if of transfer, for what purpose, but to vest in the assignee, who becomes a purchaser by assignment, all the rights acquired by the first purchaser, which are of consolidation, relinquishment, and payment by application of certificates, with the deduction of 33$ per cent ? Either construction, then, establishes the right asserted by the relator, to exist in him, by the transfer to him of the four certificates by Hubbard. It can, surely, be of little consequence, who is benefited by the provisions of the act, if he is the legal and bona fide owner of the title to the certificate of payment made; whether he is the purchaser, by assignment and transfer, or is an original one, of all the certificates he proposes to relinquish, will not vary the result; the effect would seem to be the same in either case.
It is not thought that the legislature intended that its bounty should be stinted in its application, by technical objections, and nice distinctions, to prevent the legal holder of these evidences of payment and title, from fully realizing the relief granted; nor would it be in accordance with the benevolent motives, which, doubtless, actuated it in passing the law, to thus deprive the holder of the assigned certificates, of the advantages intended to be conferred on all; it would but ill accord with what seems clearly to have been the views of the General Assembly.
When the United States’ Government permitted similar applications and consolidations, under an act of Congress, whoever was the holder of the certificate, received the , benefits of the act, no matter whether he was the original purchaser or the assignee.
It was strongly insisted on, in the argument, that if the construction contended for by the relator’s counsel, was adopted, it would open the door to speculations, and be highly prejudicial to the canal fund, by suffering parties to select good lots, and relinquish bad ones. This argument is considered' fallacious and ideal. It proceeds upon an assumption of facts, of which there is no evidence. How can it be assumed, that a portion of the lots in question are worthless ? In what manner does it appear, and where are the evidences to establish it ? Certainly not in the case. If, however, we could judicially look into extrinsic evidence, beyond the record, we still have no proof to sustain the allegation. These lots were required by law, to be all valued before sale. That they were so valued, is not only the presumption of law, but is proven by history to be matter of fact. That all were valued by the standards of value of real property in the region in which the lots are, as it was estimated in 1836, in the very heart, and amid the scenes of delusion, deception, and exaggeration of those days, is believed to be an indisputable matter of history now. That each lot was valued, in relative proportion to the value of others, as to eligibility of situation, and adaptation to commercial, or other useful and,valuable purposes, and was not permitted to be sold for less than its appraised value; and if it is intended to be understood that the outer lots are the refuse ones, which are to be relinquished, of which we have no means of judging, and, therefore, affirm nothing relative thereto, to the injury of the canal fund, it is thought that little is hazarded, in affirming that it may readily be believed, that great misapprehension exists in relation thereto. It is understood that the proportionate value affixed to such lots, and those in the more business parts of the town, was greatly in favor of the first over the latter, and that it still maintains, from the existence of adjacent improvements, and vother causes, that relation. Hence it is by no means probable, if such lots should be relinquished, that the effects imagined could arise. But with the consequences and results, the Court have little to do, on the present occasion. The arguments, drawn from such a position, are not legitimate.
It is, nevertheless, true, if it were apparent, that by a particular ■construction of a law, in a doubtful case, such construction would be likely to endanger, or to actually sacrifice great public interests, it would not, and ought not to be intended that such a construction was contemplated by the legislature, in disregard of such interests.
In the present case, not only such supposed injuries are neither ■seen, nor anticipated; but seem impossible ever to happen. How .can the transfer, where the relative value of each lot has been al-" ready fixed, of one payment on a particular lot, to another, produce-injury ? The scale is equal. The relinquishing party gives back the lot, and applies his payment to another; both have been valued; and if he gives up a lot, valued at a low price, he transfers his payment to one of a higher price. The benefits and the injuries, if any exist, are equal. Neither benefit or lose, by the act, except that the party relinquishing gets the deduction allowed by law, and is enabled to complete his title; and the State receives back her lands, with at least the possible advantage, by the future growth of the town, of obtaining, eventually, a greater price for her property. These arguments are, however, unnecessary. The immediate, as well as the remote consequences of the act, are presumed to have been not only understood, but maturely considered by the legislature, when it passed the act. Of its expediency and propriety, it was the legitimate judge, and it is not for this tribunal to determine whether it was impolitic or unwise. It is to ascertain its just, reasonable, and true construction; and when that is satisfactorily ascertained, it has but to pronounce the conclusion to which it has arrived.
We are of opinion that the application for the writ be allowed as prayed for.
Acte of 1841, 49.