Sangamon County IL Archives Court.....Webster, V French 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 24, 2008, 8:51 am

Source: Records Of Cases Illinois
Written: 1850

Bela C. Webster et al., plaintiffs in error, v. Augustus C. French et al., 
defendants in error.

Error to Sangamon.

Under a law which required the governor to receive written sealed bids, until 
the first day of July. Held, that all bids received after the thirtieth of 
June must be rejected. Under a directory statute, a duty should be performed 
at the time specified, but may be valid if performed afterwords. Under a 
peremptory law, the act must be done at the time specified.

The word "until," may, in a contract or a law, have an exclusive or inclusive 
meaning; depending upon the subject, transaction or connection about or in 
which it is used. (a)

After the decision of this case, as reported in the 11th of Illinois, page 
254, on the case being remanded to the Circuit Court, the complainants, 
plaintiffs in error, filed a supplemental bill, to which answers were filed by 
all the respondents. But as the case turns exclusively upon the time, within 
which the biddings in controversy were offered, it is not necessary that the 
pleadings and proofs should be set out.

The record shows conclusively, that the bid of the complainants (as also the 
bids of other parties), were offered on the second of July, 1849. The bill was 
heard before Davis, Judge, and a pro forma decree dismissing the bill was 
entered by consent.

S. T. Logan, Lincoln & Herndon and M. Brayman, for plaintiff in error.

Browning & Bushnell, Stuart & Edwards, and W. I. Ferguson, for defendants in 
error.

Caton, J. At what time were the biddings closed? This is the first and most 
important question, and it must be determined by the true construction of the 
act of the legislature, under which the sale was made. The act says: "The 
Governor shall receive written sealed bids for said property, from all persons 
until the first day of July, A. D., 1849, at which time all the bids received 
shall be opened and compared by the Governor," etc. In order to determine 
whether all the bids must be in before the first day of July, we must not only 
look at the language of the act, but we must also consider its objects, and 
the nature of the transaction contemplated. By this mode of sale, as we 
attempted to show when this case was before us at the last term, in order to 
insure a just competition among bidders, fairness is indispensable. Certain 
rights must be secured to those who bid, and eminently important among these, 
is, that a certain determinate time shall be fixed when the biddings shall be 
closed. Without this, all men will not necessarily stand on an equal footing, 
which they certainly should. The same rule which shall be held to control this 
case, must also govern others of a like nature, and this rule should be such 
as to exclude as far as possible, any advantage which might be extended to 
one, and which another may not enjoy as a matter of right. This would not be 
the case if a discretion is left, as to the time when no further bids shall be 
received. It is not enough that in this instance, we can see that all who 
desired to bid, had an opportunity to file their proposals. In some other case 
it might happen, if a discretion is allowed, that the bidding will be kept 
open till certain bids are received, and then closed, to the exclusion of 
others, less favored. The rights of the bidders are fixed by the closing of 
the biddings, and if that is determined by the lapse of time, certainty, which 
is essential to the security of all rights, is attained. Confidence as well us 
fairness is important to ensure free competition, and by this certainty, 
confidence is promoted. We do not mean to say, that a party may not by the 
terms of the sale reserve the right to receive bids so long as he pleases, or 
close the bidding at his discretion. An express provision to that effect, in 
the terms of a law like this, or in the terms offered for a sale by an 
individual, would undoubtedly authorize such a course, but in the absence of 
such express provision, or of a necessary implication to that effect, such 
authority ought not to be presumed.

If, then, the terms of this act will fairly and reasonably admit of a 
construction which fixes a determined period when the biddings shall be 
closed, that construction should be adopted. The provision of the act is that 
bids shall be received until the first day of July, 1849, at which time the 
bids shall be opened. We think that the language of this act not only admits 
of this construction, but that according to the ordinary use of language, it 
in the most natural construction, even without any aid from the subject matter 
of the provision. The word "until," may, either in a contract or a law, have 
an exclusive or an inclusive meaning according to the subject to which it is 
applied, the nature of the transaction which it specifies, and the connection 
in which it is used. In the case of Sands v. Lyon, 18 Connecticut 27, the 
court said: "The word 'after,' which is used in the devise we are considering, 
like 'from,' 'succeeding,' and similar words, where it is not expressly 
declared to be exclusive or inclusive, is susceptible of different 
significations, and is used in different senses, and with an exclusive- or 
inclusive meaning, according to the subject to which it is applied." Of the 
same class are the correlatives of those words, 
as "until," "at," "before," "within," and the like. All of these words may be 
used in the same exclusive or inclusive sense and may be used as words of 
similar import. They are most generally used as words of limitation and indeed 
almost universally so, unless there are other controlling expressions in the 
connection, showing that a different meaning was intended. Before the first of 
July, and until the first of July, convey nearly, if not precisely the same 
meaning. In statutes prescribing time for redemption the word "within" is held 
to be exclusive, although the positive words of exclusion "and not after," 
which are usually inserted in statutes of limitations, are not used: The 
People v. Luther, 1 Wendell, 42.

In this case we entertain no doubt that the time within which bids might be 
received expired with the thirtieth of June. The legislature have exercised 
the power of determining how long the right to put in bids should continue and 
when that time expired, the rights of the bidders were fixed, and they could 
not be defeated by bids coming in after that time. Those rights were 
guaranteed by the terms of the law and of the advertisement. Bids were invited 
until a given time, but after that time none were authorized to bid. Had no 
bids been filed before the first day of July, 1 the power of the governor to 
sell would have been gone. No one having closed with the terms offered by the 
state, she was not bound by any other offer.

But it was urged upon the argument, that the subsequent words, specifying the 
time when the bids should be opened, extended the time of bidding up to the 
opening of the bids, or in other words, that the closing of the biddings and 
the opening of the bids were to be simultaneous acts. The provision of the law 
required that bids should be received till the first day of July, at which 
time all bids received should be opened. We entirely concur with counsel that 
this provision proscribing the time when the bids should be opened was but 
directory. According to the decision in this case, when it was before us at 
the last term, the responsible bidder who, by putting in the highest bid, 
brought himself within the terms offered by the state, in the law and the 
advertisement, closed a contract with the state, which either party had a 
right to insist upon. By this he acquired a vested right of which he ought not 
to be deprived by the delay of the vendor in opening the bids at a particular 
time. The governor was still vested with a necessary discretion to determine 
who were responsible bidders, and of the responsibility of the security 
offered, but still all had a right to have their bids considered, if they were 
put in in time, and the highest responsible bidder who offered responsible 
security had a right to claim that his bid should be accepted. It must have 
been foreseen that various accidents might occur which would prevent the 
opening of the bids even for days after the time specified in the law, as the 
sickness or unavoidable absence of the governor, the secretary of state, or 
the treasurer, in whose presence the bids were required to be opened. If the 
bids could not be opened after the time designated, in such a case, the rights 
of both parties would be lost. It was the intention of the legislature to 
effect a sale of the property at the time, and as the governor had no 
authority again to offer the property, that intention might be defeated if the 
specification of the time for opening the bids should not be held peremptory. 
By a directory statute, it is not to be understood that no duty is imposed to 
do the act at the time specified, in the absence of a satisfactory reason for 
not then doing it, but simply that the act is valid if done afterwards; while 
a peremptory law requires the act to be done as specified and at no other time.

But we think the argument which proves that the provision, fixing the time for 
opening the bids, is directory, conclusively establishes that the provision 
fixing the time within which the bidding should be closed, is peremptory. If 
it were otherwise, the time for bidding might have been extended indefinitely, 
till the necessity which might have occasioned the delay in opening the bids 
ceased. No necessity can require such a construction of this law.

With the view which we entertain of this case, it is unnecessary to inquire 
what effect the fact that the first day of July, 1849, was Sunday, might 
otherwise have had. All the bids were required to be in before that time. And, 
as we have seen, they might be opened after that day ceases to be a matter of 
the least importance, as the complainant's bid was not put in till the second 
of July, in our opinion it was not a bid, and no rights could be acquired 
under it which can be enforced in a court of equity. It is unnecessary to say 
that all the bids put in after the thirtieth of June must share the same fate.

The decree of the Circuit Court, dismissing the bill, must be affirmed.

Decree affirmed. 

-------------------
(a) See Clark v. Ewing, 87 Ill., 344, in which principal case is considered.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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