The opinion
Mr. Justice Wilkin, dissenting:
I think this opinion is in conflict with the previous decisions of the court. The former judgment of the county court was reversed and the cause remanded to that court without any directions whatever, and that left it, when reinstated, in precisely the same condition as though there had been no trial or judgment. “A judgment reversing the judgment or decree of the trial court, expressed in general terms, without specific direction or instruction, operates to completely annul the judgment or decree of the lower court and to restore the parties to the position they occupied when the original decree, or judgment was rendered. Its effect is substantially the same as that of a judgment awarding a new trial, for, in general, it opens up the whole case.” (Elliott on Appellate Procedure, sec. 580, and cases cited.) Many decisions of this court are to the same effect. We did not hold in the former case that the county tax was not authorized by law, but simply that it was not levied in conformity with the requirements of section 121 of the Revenue act, as it then existed. The curative act of 1905 was passed expressly for the purpose of curing defects in that levy. The latter act has been sustained by this court in People ex rel. v. Wisconsin Central Railroad Co. (ante, p. 94,) and we there held in conformity with the rule announced in Cooley’s Constitutional Limitations, (7th ed.) 531, which is: “If the thing wanting or which failed to be done, and which constitutes the defect in the proceeding, is something the neces-' sity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature’to dispense with it by subsequent statute. And if the irregularity consists in doing some act or in the mode or manner of doing some act which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.” The same rule is followed in Cowgill v. Long, 15 Ill. 202 , and was adopted in Blake v. People, 109 Ill. 504 , and is recognized in Fairfield v. People, 94 id. 244. See, also, Steger v. Traveling Men’s Building Ass. 208 Ill. 236 , and Fugman v. Jiri Washington Building and Loan Ass. 209 id. 176.
It is a general rule that the province of an Appellate Court is only to inquire whether a judgment then rendered was erroneous or not. But if, subsequent to the judgment and before the decision of the Appellate Court, a law intervenes and positively changes the rule which governs, the law must be obeyed or its obligation is denied. United States v. Schooner Peggy, 1 Cranch, 40 .
It is not claimed in this case that the tax in question has been paid, and I am unable to see why, upon the re-trial, the curative act of 1905 was not available to the county to enforce its collection. Certainly the case is not distinguishable, upon principle, from that of Cowgill v. Long, supra, where we held that the legislature has power to pass an act to remedy defects in the law authorizing taxation for building school houses while the tax remains uncollected. It is the well known policy of the law to favor the collection of all legal taxes.
Mr. Justice Hand : I concur in the foregoing views expressed by Mr. Justice Wilkin.