Volume 248 — Illinois Reports

<p>1. Mandamus—writ will not be awarded unless the petitioner shows a clear right and a clear legal duty by defendant. The writ of mandamus will be awarded only in cases where the petitioner shows a clear right to the writ and a clear legal duty on the part of the defendant to perform the act sought to be enforced.</p> <p>2. Same—courts do not take judicial notice of municipal ordinances. One who relies upon his compliance with all municipal ordinances on the subject as entitling him to a writ of mandamus to compel city officers to issue a certain permit and license must allege and prove the ordinances as matters of fact, as courts do not take judicial notice of municipal ordinances.</p> <p>3. Same—what averments in mandamus petition are mere legal conclusions. Averments in a mandamus petition that petitioner’s proposed building is to be constructed of such material and in such a manner as to meet all the building requirements of the city, and that the plans and specifications which were submitted to the mayor and commissioner of public buildings showed that the proposed building complied with all the building requirements fixed by the ordinances, are mere legal conclusions, which are not admitted by the demurrer and cannot be considered in determining whether the petitioner has shown a right to the writ.</p> <p>4. Same—what must appear before petitioner is entitled to writ. Before a petitioner can be entitled to a writ of mandamus compelling the mayor and commissioner of buildings to issue a permit to erect a building and a license to conduct a dance hall therein, the petition must not only show that the ground upon which the defendants’ refusal was based was not a legal excuse, but.also that the petitioner has complied with all the valid requirements of the ordinances entitling him to such permit and license.</p> <p>5. Same—Chicago ordinance contemplates erection of building before an amusement license is issued. The Chicago ordinance of December 17, 1909, classifying amusements and providing for a license therefor, and which authorizes a license to issue after the place where the amusement is to be conducted has been examined and is certified by the building commissioner, city- electrician and fire marshal as complying with all the ordinances relating to the subject, contemplates that a building or enclosure shall be erected before the mayor can be compelled to issue a license to conduct an amusement therein.</p> <p>6. Same—averment of reason for refusal does not supply want of allegations showing petitioner’s right. An averment in a^mandamus petition of the reason for the defendants’ refusal to issue a certain permit and license does not supply the want of allegations showing that the petitioner has complied with all the conditions precedent to his right to have such permit and license issued.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit' Court of Macoupin county; the Hon. Robert B. Shir-LEy, Judge, presiding.

<p>1. Taxes—municipal corporations have no inherent power to levy taxes. Municipal corporations and local governmental subdivisions of the State have no inherent power to levy taxes, as such power is inherent in the legislature and is absolute, except as 'restrained by the constitution.</p> <p>2. Same—grant of power to levy taxes must be strictly construed. If any grant of power to tax is made by the legislature to municipal or local authorities they must be able to show their warrant for the exercise of the power in the words of the grant, which must be strictly construed.</p> <p>3. Same—road tax cannot be levied for ordinary purposes in excess of thirty-six cents on the $100 taxable property. Under the Roads and Bridges act relating to counties under township organization, the highway commissioners have no power to -levy a road and bridge tax in excess of thirty-six cents on the $100 of taxable property for any of the ordinary purposes of such a tax, and under section 14 of such act they may levy the additional tax only in case of some unusual or extraordinary event in the nature of a casualty, which does not happen regularly in the ordinary course.</p> <p>4. Same—certificate of commissioners must state what the contingency is for which additional road tax is levied—when insufficient. The certificate of the highway commissioners ■ for an additional road and bridge tax under section 14 of the Roads and Bridges act must state that the additional tax is desired to meet a contingency and must state what such contingency is, and it is not sufficient to state that’ it is “on account of rains and floods,” as rains are usual and floods due to heavy rains not unusual.</p> <p>5. Same—a particular flood may authorize an additional road tax. A particular flood may be so extraordinary in its nature and consequences as to authorize the levy of an additional tax under section 14 of the Roads and Bridges act, but if so, it must be specified in the certificate.</p> <p>6. Same—building of new bridges not connected with any contingency does not authorise additional road tax. The building of bridges over creeks, which is in no way connected with any contingency such as is contemplated by section 14 of the Roads and Bridges act, does not authorize the levy of an additional road tax.</p>

<p>1. Taxes—ditty of commissioners in the matter of levying road, and bridge tax. Under the statute the commissioners of highways must make a certificate of the rate per cent agreed upon by them to be levied on the property of the town for road and bridge purposes and for the payment of any outstanding orders drawn on them by their treasurer, and this certificate must be delivered by them to the town clerk, to be kept by him on file for the inspection of the inhabitants of the town.</p> <p>2. Same—duty of the town clerk in matter of levying road and bridge tax. When the town clerk receives the certificate of- the highway commissioners of the rate they have agreed upon to be levied for road and bridge purposes and to pay outstanding orders, it is his duty to file the same and keep it and make a certified copy of the certificate, and transmit such copy to the county clerk as the latter’s authority to extend the tax.</p> <p>3. Same-—the county clerk’s only authority to extend road and bridge tax is the town clerk’s certificate. The only authority of the county clerk to extend a road and bridge tax is the town clerk’s certified copy of the highway commissioners’ certificate, and if the paper transmitted to him by the town clerk is the original certificate of the highway commissioners, or is a paper having nothing upon it to indicate that it is a copy and not the original, the county clerk has no authority to extend the tax, and if he does so it is void.</p> <p>4. Same—county clerk may extend tax if the paper transmitted by town clerk purports to be a copy. If the paper transmitted by the town clerk to the county clerk purports to be a copy of the original certificate of the highway commissioners the county clerk may extend the tax even though such copy is irregular or informal, as in such case, under the Revenue act, any mere error, irregularity, informality or omission of the town clerk in certifying the levy to the county clerk may be corrected by amendment. or supplied, in the discretion of the court.</p> <p>5. Same—when paper transmitted to the county clerk cannot be amended by adding a certificate. Where the town clerk copies the highway commissioners’ certificate down to the signatures and then has the commissioners sign the paper the same as they signed their certificate, the county clerk is not justified in accepting such paper as a copy of- the certificate of the commissioners even though the paper bears no file-mark, and in such case the paper cannot be amended, on application for judgment and order of sale, by adding a proper certificate.</p> <p>6. Same—failure of town clerk to transmit to county clerk anything purporting to be a copy of certificate of levy is fatal. The failure of the town clerk to transmit to the county clerk anything which purports to be a copy of the highway commissioners’ certificate of levy of the road and bridge tax, or anything which the county clerk is justified in accepting as such copy, is not a mere irregularity or omission which may be corrected by amendment or supplied, but is an entire omission of one of the steps essential to the validity of the tax.</p> <p>7. Same-—void city tax cannot be included in total taxes subject to reduction. If the total taxes subject to reduction under the amended Revenue law will not exceed three per cent of the taxable property, provided a certain void tax is excluded, there is no violation of the statute in respect to such rate, and the fact that a tax-payer elects to pay such void tax does not entitle him to insist that it shall be included in the aggregate taxes to be reduced.</p>

<p>Appeal from the County Court of Piatt county; the Hon. E. J. Ha weaker, Judge, presiding.</p>

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on writ of error to the County Court of Fayette county; the Hon. John H. Webb, Judge, presiding.

<p>Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.</p>

<p>Appeal from the County Court of Randolph county; the Hon. S. L- Taylor, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>1. Appeals and errors—record must show placita or convening order. It is indispensable that the record of a special assessment proceeding governed by section 9 of the Cities and Villages act of 1872 shall contain a placita or convening order showing that the term of court at which the hearing was had was regularly convened and organized, and the absence of such placita or convening order from the record precludes a consideration of the merits of the case on appeal.</p> <p>2. Same—record must contain essentials of a judgment even though no particular form is required. Even though no particular form in proceedings of a court are necessary in order to constitute a judgment, still it is necessary that the record shall contain all the essential élements of a judgment showing that the court finally disposed of the cause.</p> <p>3. Same—what does not constitute a final judgment. An entry in the record in the words, “December 7th, 1908.—The court now being fully advised in the premises sustains said motion to dismiss; appeal prayed to Supreme Court; bill of exceptions; thirty days; no bond;” does not show any final judgment and will not support an appeal.</p>

<p>1. Taxes—constitution requires town to provide for a direct annual tax to pay bonds. If bonds are issued under section 20 of the Roads and Bridges act, the constitution enjoins upon the town the duty, at or before the time of incurring the indebtedness, to provide for the collection of a direct annual tax to pay the interest and principal of the proposed debt, and this provision secures to the bondholder the right to compel the levy of a tax in accordance therewith.</p> <p>2. Same—voters at town meeting cannot levy tax to pay bonds and interest. Under section 20 of the act relating to roads and bridges in counties under township organization, if the electors, at a special town meeting, vote to borrow money for the building of bridges or for other distinct and expensive work, it is the duty of the supervisor and town clerk, under the direction of the commissioners, to issue bonds as the work progresses and the duty of the board of town auditors to audit the bonds and make a proper certificate for the levy of the necessary tax, and the electors themselves cannot levy the tax by their vote.</p> <p>3. Same—board of town auditors is the corporate authority to levy tax to pay bonds and interest. The voters at the town meeting have no authority to levy a tax to pay the interest or principal of bonds issued by the town, but the basis of the tax is the certificate of the board of town auditors to the town clerk and the certificate of the town clerk to the county clerk, and the vote of the electors cannot be substituted for the certificate of the board of auditors. (Wright v. People, 87 111. 582, distinguished.)</p> <p>4. Same—the board of town auditors are obliged to levy a tax to pay bonds. The board of town auditors, in auditing a charge against aitown on account of bonds issued under section 20 of the Roads and Bridges act, may see that the provisions of the statute relating to the issue of bonds by the supervisor and town clerk have been complied with and compute the amount necessary to meet the obligations, but they have no" discretion to refuse to audit the claim in accordance with the provision for the direct annual tax made at or before the time of incurring the indebtedness.</p> <p>5. Same—when town tax levy is illegal.. A tax levy of $500 for contingent expenses of a town is illegal where there is no further specification of what such expenses are.</p>

<p>1. Taxes—duty of commissioners as to levying tax to liquidate road and ditch damages. ' Under the act relating to roads and bridges in counties under township organization, when damages have been agreed upon, allowed or awarded for roads or ditches, it is the duty of the highway commissioners to make a certificate of the-amount of money necessary to liquidate such damages and deliver such certificate to the town clerk, but it is the duty of the clerk, and not of the highway commissioners, to ascertain the rate per cent, which must be within the statutory limit.</p> <p>2. Same—when fact that a rate was certified instead of a specific amount does not defeat tax. The fact that the rate per cent for a tax to liquidate road and ditch damages was certified instead of the specific amount necessary does not defeat the substantial justice of the tax, unless it is shown that the rate so fixed did not produce the same result as if the amount had been specified.</p> <p>3. Same—what taxing district must be used as the standard in determining tax reduction. The taxing district having the. highest aggregate of rates, exclusive of the rates mentioned in the act as not subject to reduction, is the taxing district to be used by the county clerk as the standard in determining how much, if any, the county rate shall be reduced.</p> <p>4. Same—when tax reduction is not in compliance with statute. It is in plain contradiction df the amended Revenue law. of 1909,' and subversive of its purpose, for the county clerk, in ascertaining the highest aggregate per cent of all tax levies, to select the district having the highest aggregate per cent (including taxes which are not to be reduced and which by the act are to be excluded,) and then exclude from the aggregate rate the various taxes which he is not authorized to reduce, and, if what remains is less than three per cent of the taxable property, make no reduction throughout the county, whether the aggregate levies of any other district exceed three per cent or not.</p> <p>5. Same—duty of county clerk in reducing taxes. After the county clerk has ascertained the taxing district having the highest aggregate tax levies which are subject to reduction under the amended Revenue law of 1909, he is required to reduce the same to three per cent, in accordance with the provisions of the statute, thereby fixing the county rate which applies throughout the county; and he must follow the same method in fixing the rates of other taxing districts, so that the rate will apply uniformly throughout each district.</p>

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Pulaski county; the Hon. W. W. Duncan, Judge, presiding.

<p>This case is controlled by the decision in City of Chicago v. Pittsburgh, Ft. Wayne and Chicago Railway Co. 247 111. 319.</p>

' Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court„of Cook county; the Hon. Julian W. Magic, Judge, presiding.

<p>1. Taxes—authority to borrow money for hard roads is in addition to the method provided by special tax. Section 4a of the amended Hard Roads act of 1909, (Hurd’s Stat. 1909, p. 1955,) authorizing the borrowing of money for the construction of hard roads, was not intended to enable the commissioners to anticipate the taxes under a hard roads tax levy of one dollar on each $100 assessed valuation, but was intended to produce funds for the construction of hard roads in addition to such special tax.</p> <p>2. Same—rate at which the county clerk should extend tax for money borrozved for hard roads. Where a town has voted to borrow money for the construction of hard roads and has issued bonds for the sum borrowed, the county, clerk should extend the tax at a rate sufficient to produce the amount required to pay the interest on all the bonds and the principal of the maturing bonds.</p> <p>3. Same—special hard roads tax should be extended at the rate voted for. Where the voters at the town meeting have voted to levy a tax of one dollar on each $100 assessed valuation for the purpose of constructing the hard roads described in the petition, the county clerk must extend such tax at the rate voted, even though a tax to pay the interest 'and principal of bonds issued for money borrowed to construct hard roads is also to be levied.</p> <p>4. Same—change made by act of ipop as to taxable value does not reduce rate of hard roads tax. The fact that between the time a hard roads tax of one dollar on each $100 assessed valuation was voted, and the extension of such tax, the taxable value of property was changed' by law from one-fifth of the actual value to one-third thereof, does not have the effect to reduce the rate at which such special tax is to be extended. (People v. Cairo, Vincennes and Chicago Railway Co. 247 111. 327, and People v. Chicago and Eastern Illinois Railroad Co. [post, p. 118,] followed.)</p>

<p>This case is controlled by the decision in People v. Kankakee and Seneca Railroad Co. {post, p. 114.)</p>

<p>1. Taxes—when misprision of the town clerk is properly disregarded by the court. Where the amended certificate of the town clerk shows a levy of $350 for payment of town officers and $150 for the town poor the tax should not be defeated because the record of the town meeting introduced in evidence shows the adoption of a motion that such amounts be allowed to the supervisors for the “preceding” year, as the word “preceding,” as so used, is a mere clerical misprision, and is properly disregarded by the court.</p> <p>2. Same—hard roads petition need not state that signers possess necessary qualifications. If a hard roads petition is, in fact, signed by persons possessing the necessary qualifications under the statute, it is not necessary that the petition shall show, on its face, that the signers were qualified.</p> <p>3. Same—a vote and levy for hard roads must follow petition. Land owners may petition for a vote upon the proposition to levy a tax for the construction of gravel, rock, macadam or other hard roads, leaving the character of the road to be determined by the highway commissioners; but if they petition for a vote to levy a tax for constructing one particular kind of hard road the vote and levy must follow the petition, and if extended to include other kinds of hard roads the tax is invalid.</p> <p>4. Same—notice and ballot should follow the petition. The requirements of notice and of the form of the ballot in an election to vote upon a proposition to build hard roads are in the alternative, and the notice and ballot should follow and agree with the petition.</p> <p>5. Same—laws conferring power to tax must be strictly construed. Laws which confer upon municipal authorities, as highway commissioners, the right to levy a tax must be strictly construed, and their requirements must be strictly complied with or the power will not be conferred.</p> <p>6. The objections to the county tax in this case are the same as those made in People v. Cincinnati, Lafayette and Chicago Railzuay Co. 247 111. 506, and for the reason stated in the opinion in that case were properly overruled.</p>

<p>Appeal from the County Court -of Kankakee county; the Hon. A. W. Deselm, Judge, presiding.</p>

<p>Appeal from the County Court of Lake county; the Hon. DeWitt L. Jones, Judge, presiding.</p>

<p>1. Taxes—bonds of a town are a claim against the town, which must be audited. Bonds of a town are claims against the town and must be audited and allowed by the board of town auditors before they can be made the basis for the levy and collection of taxes, and it is not within the power of the electors, at the town meeting, to audit such claims or levy taxes to meet them.</p> <p>2. Same-—when certificate of town clerk is properly amended. If bonds of a town have been audited and allowed by the board of town auditors and a valid levy made by it to pay the same, but the certificate of the town clerk, while it correctly states the amount and purpose of the levy, erroneously states as its basis the action of the electors at the town meeting instead of the certificate of the board of auditors, it is not error to permit such certificate to be amended to show the facts, upon an application for judgment and order of sale for the tax.</p> <p>3. Same—certificate of board of auditors is basis for the town clerk’s certificate—-what does not overcome it. The certificate of the board of town auditors, and not the record of the board’s proceedings, is the basis for the town clerk’s certificate to the county clerk of the tax to pay bonded indebtedness of the town, and the facts that such record does not show the action of the board in allowing the claim, or that it may show the board recommended that the money to pay the bonds be raised at the next annual town meeting, do not overcome the force of a certificate of the board showing the allowance of the bonds as a. claim against the town.</p> <p>4. Same—existence of a contingency is an indispensable prerequisite of additional road tax. The board of town auditors and the assessor have no power.to consent to the levy of an additional tax, under section 14 of the Roads and Bridges act, unless a contingency exists and is stated in the certificate of the highway commissioners, and hence if the matters stated in the certificate upon which the board acted do not show such a contingency as is contemplated by law, it cannot be amended, upon application for judgment and order of sale, to show such contingency.</p> <p>5. Same—what does not sustdin objection to item of county tax for salary of the officers. An objection that a portion of an item of county tax for the “salary of the officers” was for salaries of employees who were not within the term “officers,” is not sustained by the mere fact that the county treasurer, who testified for the collector, named various offices and employments, with the salary attached to each, according to a list which he testified was a “list of the officers paid by the county,” which he had made.</p> <p>6. Appeals and errors—•when cross-errors cannot be considered. Cross-errors cannot be considered unless the matters complained of appear either in the abstract of record furnished by the appellant' or in an additional abstract furnished by the appellee.</p> <p>7. The objection to the item of county tax for “care of paupers” was considered in the case of People v. Cincinnati, Lafayette and Chicago Railway Co. 247 111. 506, and for the reasons there stated was properly overruled.</p>

<p>Writ or Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

<p>1. Taxes—provision for notice contained in the proviso to section 2p8 of Revenue act applies to section 2jó. The provision for notice to the property owner, contained in the proviso to section 278 of the Revenue act, applies to section 276, which directs that property omitted from assessment in former years shall, when discovered, be listed and assessed by the assessor; and section 276 is not, therefore, in violation of the “due process of law” provision of the constitution.</p> <p>2. Same—notice to ozuner of assessment of omitted property must be given by board of review. Since the Revenue act of 1898 came into effect the assessment of property omitted for previous years and which is required to be listed and assessed under section 276 of the Revenue act is to be made by the board of review, and such board should give the notice of such assessment which, prior to the act of 1898, it was the duty of the assessor to give to the owner of the omitted property.</p> <p>3. Same—provision of statute exempting capital stock of certain corporations from taxation is invalid. Clause 4 of section 1 of the Revenue act, as amended in 1905, does not attempt to classify corporations for the assessment of their capital stock by different assessing bodies, but merely declares the capital stock of some corporations shall be assessed and taxed while that of others shall not, and the attempted exception in favor of the corporations therein enumerated is in violation of the constitution, and ineffectual.</p> <p>4. Same—board of review must assess ■ capital stock of manufacturing corporation omitted in previous years. The statute having prohibited the assessment by the State Board of Equalization of the capital stock of manufacturing corporations, it is the duty of the board of review to assess such capital stock where the same has been omitted from assessment in any year or number of years.</p> <p>5. Same—tax upon capital stock of corporation is a tax upon property. The capital stock of a corporation is subject to .taxation and the tax thereon is a tax upon property.</p>

<p>Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Mazzini SlussER, Judge, presiding.</p>

<p>Writ op Error to the Criminal Court of Cook county; the Hon.. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Statutes—usual meaning must ordinarily be given words of statute. The words used in a statute will ordinarily be given their usual and popular meaning by the courts, and before denying a word its usual meaning courts must be certain they are following the legislative intent in so doing.</p> <p>2. Registration op titees—what is essential to entitle owner to include several pieces of land in one application. To entitle an owner to include several pieces of land in one application, as authorized by section 12 of the Torrens law, the several pieces must form one compact body or the several pieces must have the identical chain of title.</p> <p>. 3. Same—when lots are not contiguous within meaning of section 12 of the Torrens law. Lots in different blocks separated by a street, or lots in the same block separated by lots owned by other persons, - are not within the meaning of section 12 of the Torrens law, authorizing any number of contiguous pieces of land in the same county and owned by the same person to be included in one application, as the word “contiguous” means “touching” or in “actual contact.”</p> <p>4. Same—“same" chain of title means “identical" chain. Lots owned by the same person in different subdivisions do not have the “same” chain of title, within the meaning of section 12 of the-Torrens law, even though the chain of title is the same from the government down to a certain year, but is then broken, as the word “same,” as used in such statute, means “identical.”</p> <p>5. Same—zvhen affidavit for introducing secondary evidence is sufficient. Section 35 of the Conveyances act, relating to the introduction of secondary evidence of a deed if it shall appear to the satisfaction of the court that the original deed is “lost or not in the power of the party wishing to use it,” is in the alternative, and an affidavit under such section need not show that the deed is lost and also not in the power of the party wishing to use it.</p> <p>6. Same—zahén abstracts of title are not entitled to admission under section 18 of Torrens lazo. Testimony that an abstract of title was “ordered in the regular course of business” from a company engaged in the business of making abstracts of title is not sufficient to entitle such abstract to admission under section 18 of the Torrens law, authorizing the admission in evidence of “any abstract of title, or certified copy thereof, made in the ordinary course of business by makers of abstracts.”</p> <p>7. Same—section 18 of Torrens laza is not invalid becatise not adopted by vote of people. The fact that section 18 of the Torrens law, which became a part of the law by amendment after the original act was adopted by a vote of the people, is not invalid because the amendment was not adopted by such a vote, as there is no requirement of law to that effect; nor is such section invalid,on other grounds. {Brooke v. Glos, 243 111. 392, adhered to.)</p>

<p>Writ op Error to the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>1. Practice—cause should not be referred to one master to report on evidence taken by another. It is error to refer a cause to one master in chancery to report his conclusions of law and fact upon the evidence taken before another master.</p> <p>2. Evidence—a written contract is the evidence of its terms. Evidence of prior or contemporaneous negotiations leading up to a written contract, and of conversations or declarations at the time the contract is made, or afterwards, is not admissible, except that where the contract is not intended to be a complete statement of the whole transaction, evidence of a separate parol agreement as to matters not inconsistent with the terms or legal effect of the written one, or about which the latter is silent, is admissible.</p> <p>3. Contracts—when a written contract is not ambiguous. A written contract whereby one partner in a land syndicate agrees to sell to another partner “my undivided one-fifth part of Schnell’s first addition to the city of Rock Island,” clearly refers to nothing but real estate, and evidence tending to show that it was meant to include the proposed vendor’s interest in the syndicate, including notes, mortgages and choses in action derived from the sale of lots before the date of the contract, is not admissible in a proceeding to specifically enforce the contract according to its terms.</p> <p>4. Specific performance—when contract cannot be enforced. Where one partner in a land syndicate agrees to sell his undivided interest in the land to another provided that all claims for money or endorsements on account of the syndicate were fully satisfied without loss to him, the proposed vendee is not entitled to demand specific performance without re-payment, or an offer to re-pay, to the proposed vendor of the amount paid by him as his share of a partnership note signed by all the partners of the syndicate and given for money used in purchasing the syndicate land.</p>

<p>1. Quo warranto'—court is not required to enter rule to show cause why information should not be filed. It is discretionary with the court whether a rule shall be entered requiring the respondents to show cause why an information in the nature of a quo warranto shall not be filed, and the court or judge may act upon the petition ex parte,-wad, if satisfied there is probable cause, may grant leave to file the information.</p> <p>2. Same—discretion of court in allowing an information to be filed 011 the petition alone cannot be reviewed. If a petition for leave to file an information in the nature of quo warranto shows probable ground' for the proceeding, leave should be granted unless good cause is shown for refusing it; and the discretion of the court in granting such leave without any evidence other than the petition and without entering any rule on respondents to show cause why the information should not be filed, cannot be reviewed.</p> <p>3. Drainage—objects of respective drainage districts must be determined from the statute. The objects for which two drainage districts whose territory overlaps were organized cannot be determined from averments of the pleadings but must be determined from a consideration of the statute under which the respective districts were organized.</p> <p>4. Same—powers of drainage districts are derived from statute and not from the order of the court. The powers of a drainage district are derived from the statute and not from the order of the court organizing the district, and where a drainage district is organized under the Levee act it has all the powers conferred by such act, regardless of the wording of the petition to organize the district or the particular work in immediate contemplation, and regardless of the expectation or desires of land owners or petitioners.</p> <p>5. Same—two districts organised under same statute have the same purposes and powers. Two drainage districts organized under the Levee act have the same powers and are organized for the same purposes, in law, regardless of the particular work which has been doné by one district or is expected to be done by the other.</p> <p>6. Same—levee district is not confined to the work originally reported and confirmed. Section 59 of the Levee act authorizes a levee district not only to carry out the work originally reported and confirmed but to do additional work if it appears to be necessary for more complete drainage of particular lands, and indicates the intention of the legislature to give such district complete jurisdiction of questions of the drainage of lands of the district, to the exclusion of other authority.</p> <p>7. Same—a district cannot be organised ottt of territory of another existing district. A levee drainage district cannot lawfully be organized out of territory included in another levee district already organized and in active operation. (People v. Crews, 245 111. 318, .followed.)</p> <p>8. Same—court may refuse to allow information to attack organisation of district to be filed. In its sound legal discretion the court may .refuse to allow an information in the nature of quo warranto to be filed, and may, out of considerations of public interest or inconvenience, or because of the unreasonable delay or the acquiescence of the complaining parties, refuse to allow such an information to be filed to test the legality of the, organization of a drainage district which has issued and sold bonds, levied assessments, incurred liabilities, entered into contracts and Otherwise exercised the powers of a drainage district.</p>

Writ OB Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Appear from the Circuit Court of Edgar county; the Hon. W. B. Schoreierd, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas'M. Jett, Judge, presiding.</p>

Writ or Error to the Appellate Court for'the Second District;—heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. Edgar Erdredgr, Judge, presiding. . 'This is a bill in equity brought by plaintiffs in error, Caroline Moore, Frank Brandenburg, George Brandenburg and Mary Jones, against defendants in error, Catherine Brandenburg, Christian Brandenburg, Ruby Brandenburg and Raymond Brandenburg, in the circuit court of LaSalle county, to cancel and…

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. .</p>

<p>Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Pope county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>1. Bills of exceptions—reducing bill of exceptions to form at trial has never been required. Since the taking of a bill of exceptions first became a part of the procedural law in Illinois it has never been required that the bill should be reduced to form at the trial, but it was sufficient if this was done during the term, although it was essential that the bill should show that an exception was taken at the trial. (Contrary expression in Hake v. Strubel, 121 111. 321, disapproved.)</p> <p>2. Same—practice of allowing bill of exceptions to be prepared at a subsequent term is not founded on statute. The practice in circuit courts,'where the parties have so agreed or the court has so ordered, of permitting a bill of exceptions to be prepared and signed in vacation or at a subsequent term is not founded upon the statute but grew out of the action of the courts.</p> <p>3. Same—prior to amendment of 1907 the municipal court had the same power as circuit courts concerning bills of exceptions. Prior to the amendment of the Municipal Court act, in 1907, the municipal court, in cases of the first class, had all the power of the circuit court in regard to fixing the time when the bill of exceptions might be filed.</p> <p>4. Same—amendment of 1907 limits power of municipal court to extend time for filing bill of exceptions. Under section 38 of the Municipal Court act, as amended in 1907, the municipal court, in cases of the first class, may extend the time for tendering the bill of exceptions upon application made therefor within sixty days after the entry of a final order of judgment, but it cannot grant an extension after such sixty days, even though the application is made within the period of an extension granted within such sixty days. (Lassers v. Steamship Co. 244 111. 570, followed.)</p> <p>5. Practice—motion to strike bill of exceptions may be made after joinder in error. A motion to strike a bill of exceptions from the record because the same was not filed within the proper time may be made in the Appellate Court after joinder in error; and the question of what is the record may be tried by the record at any time.</p>

<p>Writ of Error to the Municipal Court of Chicago; the Hon. John C. ScovBL, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

<p>1. Practice—defective order of reference to the master should be objected .to in trial court. An order of reference to the master which is defective in omitting the words “be referred” should be objected to in the trial court, and if no such objection is made and the parties treat the order as valid it cannot be questioned in a court of- review.</p> <p>2. Appeals and errors—error in allowing stenographer’s fees to master in chancery may be waived. ’ Error in allowing to the master in chancery stenographer’s fees for writing testimony may be waived by a failure to properly assign such error on the record.</p> <p>3. Same—when maxim de minimis non curat lex applies. An error of $1.28 in figuring the amount of taxes, interest and costs to be paid to the defendant upon, the setting aside of his tax -deeds, which amount is fixed by the decree at $479.46, should be disregarded under the maxim de minimis non curat lex.</p> <p>4. Judgments and decrees—a. decree setting aside tax deeds need not use identical words of description used in the bill. A decree setting aside tax deeds need not use the'■ identical words employed in the bill in describing such deeds, if it is clear, from a consideration of the bill and the decree, that the deeds set aside were, in fact, the ones described in the bill.</p>

<p>Appeals and Errors—controverted questions of fact are settled by judgment of Appellate Court. Where the questions whether there was a verbal warranty at the time of the purchase of merchandise, whether the merchandise was of the Quality represented, whether the contract was executed or executory and whether it was rescinded are controverted questions of fact, the judgment of the Appellate Court affirming that of the trial court is conclusive of such questions.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>1. Eminent domain—right of eminent domain is an inherent attribute of sovereignty. The right of eminent domain is an inherent attribute of sovereignty, existing independently of written constitutions or statutory laws, although it is regulated by appropriate legislation, and is the power of the sovereign to appropriate private property to the public use, limited only by the constitutional provision for compensation.</p> <p>2. Same—the right of eminent domain extends to every kind of property. The sovereign right of eminent domain extends to every kind of property, including not only that which is tangible but also all rights and interests of any kind, including easements.</p> <p>3. Same—right of eminent domain is not imrestricted. While the questions of the necessity and propriety of the exercise of the right of eminent domain are legislative and not judicial, yet the power to exercise such right is not unrestricted, and it cannot be abused to the injury of well recognized private rights.</p> <p>4. Same—lawful public use lies at foundation of right to condemn. A'dawful public use lies at the foundation of the right to appropriate private property or property rights, and in the absence of such use the existence of an act of the legislature authorizing a proceeding to condemn is immaterial.</p> <p>5. Same—legislature cannot authorise taking of private property for an illegal use. The legislature, being restricted by the requirement that the use shall be public and lawful, cannot authorize the taking of private property of a citizen for an illegal use, and the courts are not without power to determine that question.</p> <p>6. Same—use may be public and yet destructive of some natural or constitutional right. A use may be public in the broadest sense of being open to all alike upon the same terms and conditions and as being a matter of right and not a mere favor to the public, and yet be against public policy because destructive of the health, morals and welfare of society or subversive of some natural or constitutional right.</p> <p>7. Same—what questions may be determined by the court. In a condemnation proceeding the court has the right to determine whether the proposed use is a public use, whether such use or purpose justifies the exercise of the compulsory taking of private property under the statutes and constitution, and, where the petitioner is a private corporation, whether the power has been delegated to such corporation by the legislature and whether the uses and purposes for which the power is sought to be exercised fall within the legislative. grant of powers.</p> <p>8. Same—power to condemn property is limited by power to appropriate it to the particular use. If there is a want of power to appropriate private property to a particular-use there can be no condemnation of rights in such property, whatever the nature of those rights may be.</p> <p>g. Same—right of abutting owners to have Grant Park, in Chicago, kept free from buildings cannot be condemned. The right of abutting owners to have Grant Park, in Chicago, kept free from buildings rests upon an accepted dedication of the land to a specified and restricted use, which neither the city nor the legislature has power to change or disregard; and such right cannot be condemned, either with or without legislative authority, to enable the park commissioners to erect buildings in such park.</p> <p>10. Dedication—dedicator has a right to specify use and impose restrictions. An owner making a donation of his land to the .public has the right to specify the particular use to which the land is to be devoted and to impose restrictions on such use, and if the dedication is accepted the land cannot be applied to any other use nor can the restrictions be disregarded, as it is only where property is dedicated generally, without restriction, to the use of the public, that it may be applied to such uses as the public may desire.</p> <p>11. Same—what is not such a dedication as precludes a change of use. Where a proprietor subdivides his land and sells lots with a dedication of a portion of the land for the common use of the owners of the lots, there is no acceptance by the public for a specified use such as precludes a change of such use, and such portion is not a park nor public property nor exempt from taxation.</p> <p>i¡2. SamE;—land dedicated to a speciñed use will revert to dedicator if ttse is changed. Where land is dedicated to the public for a specified use under certain restrictions and the dedication is accepted by the public, a subsequent appropriation of the land to- inconsistent uses, in violation of the terms and restrictions of the dedication, will cause a reverter of the land to the dedicator and a loss of the same to the public.</p> <p>13. Same—-State cannot change use for which property was dedicated. If the owner of private property offers to donate it to the public for a specified public use, and the offer is accepted and the property devoted to siich use, the State cannot change the use and apply the property to some other use inconsistent with the dedication.</p> <p>14. Res judicata—the doctrine of res judicata is not limited to matters actually determined. Where there is identity of parties, subject matter and cause of action, the doctrine of res judicata extends not only to every matter that was actually determined in the former suit, but to every other matter which might have been raised and determined in it.</p> <p>15. Same—the character of rights of abutting owners in Grant Park, in Chicago, is res judicata. That the right of abutting owners to have Grant Park, in Chicago, remain free from buildings is more than a mere property right which can be compensated in damages or a mere limited right to' a temporary injunction until damages can be ascertained and paid, is conclusively settled by the former litigation between the parties over this question wherein the erection of buildings of any kind in such park was permanently enjoined. (Chicago v. Ward, 169 111. 392, Bliss v. Ward, 198 id. 104, and Ward v. Field Museum, 241 id. 496, adhered to.)</p>

<p>Appeal from the County Court of Union county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

<p>1. Appeals and errors—right of intervenor in garnishment to appeal. A legatee who was made a party to a garnishment proceeding by a judgment creditor of another legatee against the executor, and whose claim of title to the fund by assignment from the debtor and his contention that the statute authorizing the proceeding against the executor was unconstitutional were not allowed by the trial court, which entered judgment against him dismissing his intervening petition and for costs, is entitled to prosecute his separate appeal, even though the executor, who also prayed a separate appeal and filed a bond, did not further prosecute the appeal.</p> <p>2. Garnishment—purpose of act of i8p7, relating to garnishment of executors and administrators. Prior to the act of 1897, (Laws of 1897, p. 231,) there was no specific authority for summoning an executor or administrator as a garnishee by a judgment creditor of an heir, devisee or legatee, and the purpose of the act was to subject executors and administrators to garnishment process at any time after letters were issued.</p> <p>3. Same—the act of i8py, relating to garnishment of executors and administrators, is not complete in itself.. The act of 1897, in relation to garnishment of executors and administrators, while it consists of but one section and purports by its title to be an independent act, is not complete in itself and is clearly intended as an amendment to the existing garnishment and attachment law, although it is not so indicated in its title.</p> <p>4. Constitutional law—the act of i8pf, authorising garnishment of executors and administrators, is invalid. The act of 1897, (Laws of 1897, p. 231,) relating to garnishment of executors and administrators, is unconstitutional, in that it purports by its title to be an independent act but is not complete in itself, but is, in fact, an amendment of the existing garnishment and attachment law, in disregard of section 13 of article 4 of the constitution. (Badenoch v. City of Chicago, 222 111. 71, followed.)</p> <p>5. Same—no part of the act of 1897, relating to garnishment of executors and administrators, can he sustained. The act of 1897, relating to garnishment of executors and administrators, consists of a single section, no part of which can be sustained as a complete and independent act; and the provision requiring an assignment by an heir, devisee or legatee to be in writing and filed in the office of the clerk of the court which issued the letters testamentary or of administration, before service of process, cannot be sustained.</p> <p>6. Same—what does not render act invalid if it is complete in itself. The fact that the subject of an act, which purports by its title to be an independent act, has been previously dealt with by other statutes which the later act has the effect to repeal or amend, does not render the later act invalid if it is complete in itself.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. R. S. Tuthill, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge,, presiding.-</p>

<p>1. Statutes—the word “person” may be applied to corporation. Under clause 5 of section 1 of the act concerning the construction of statutes, the word “person” or “persons,” as well as all words referring to or importing persons, may extend to and be applied to corporations as well as individuals.</p> <p>2. Confidence game—indictment need not allege names of persons connected with the corporation defrauded. The fact that sections 98 and 99 of division 1 of the Criminal Code, concerning the confidence game, mention persons, only, and not corporations, does not preclude the punishment, under such sections, of one obtaining money or property of a corporation by means of the confidence game; nor is it necessary to allege in the indictment the names of the persons connected with the corporation whose minds were inspired with confidence by the defendant’s scheme.</p>

<p>1. Statutes—State court is bound by construction of Federal statute by. the Federal courts—effect where State statute is similar. In construing a Federal statute a State court is bound by the construction thereof by the Federal courts, and while a State court, in construing a State statute, is not bound to follow the Federal court’s construction of a like Federal statute, construed before the State statute was passed, yet it is inclined to do so.</p> <p>2. Railroads—Illinois statute requiring automatic couplers applies both to coupling and uncoupling cars. The Illinois statute requiring cars to be equipped with automatic couplers coupling by impact, so that employees will not be required to go between the cars to uncouple them, is like the Federal statute in that respect, and, like that law, applies both to coupling and uncoupling cars.</p> <p>3. Same—duty of a railroad to haul only cars having automatic couplers is absolute. The Illinois statute making it unlawful for a carrier engaged in moving traffic between points within the State to haul any car not equipped with automatic couplers which will work for the purpose intended, imposes an absolute duty upon carriers to provide such couplers and keep them in repair, and it is not sufficient that they exercise reasonable care to maintain the couplers in operative condition and do not intentionally violate the statute.</p> <p>4. Same—-an injured employee not bound to prove that carrier knew that automatic coupler would not work. In an action by a switchman injured while attempting to open by hand an automatic coupler which would not work by impact, it is not necessary, under the Illinois statute on that subject, for the plaintiff to prove that defendant knew or by the exercise of reasonable care might have known that the coupler would not work.</p> <p>5. Same—Illinois statute concerning automatic couplers applies to empty cars. The Illinois statute making it unlawful for carriers engaged in hauling cars between points in Illinois to haul cars not equipped with automatic couplers applies both to loaded and empty cars being used in intra-State traffic.</p> <p>6. Same—State has power to pass laws regulating intra-State traffic. A State has power to pass laws regulating traffic between points within the State notwithstanding the power of Congress to control inter-State traffic, provided the regulations prescribed by the State law are not inconsistent with legislation of Congress on the subject of inter-State traffic.</p> <p>7. Same—when traffic is domestic and subject to State control. If the places between which passengers or property are being transported and the railroad over which they are being transported are within the State the traffic is domestic and subject to State control, even though the railroad company may be engaged in both inter-State and intra-State commerce.</p> <p>8. Same—fact that Congress has acted as to inter-State traffic docs not preclude action by the State. The fact that Congress has passed a law requiring railroads engaged in inter-State traffic to haul only cars equipped with automatic couplers does not preclude a State from legislating on the subject with reference to traffic within the State, if the provisions of the State law are not inconsistent with those of the act passed by Congress.</p> <p>9. Same—Illinois statute requiring automatic couplers is not inconsistent zvith Federal lazv. The Illinois statute making it unlawful for carriers engaged in hauling cars between points within the State to haul cars not equipped with automatic couplers is not inconsistent with or repugnant to the Federal law upon that subject, which applies to carriers engaged in inter-State commerce.</p> <p>10. Same—character of traffic not determined by character of carrier. If a car in the yards of a station in Illinois is to be transported from that station to another station in Illinois the traffic is intra-State, notwithstanding the carrier which attempts such transportation is an inter-State railroad, engaged in both inter-State and intra-State commerce.</p> <p>11. Same—an employee does not assume risk in going between cars to work defective automatic coupler. Under the Illinois statute relating to automatic couplers upon cars employed in intraState traffic, an employee of a railroad company about to move such a car does not assume the risk of injury by going between the cars to work with his hands an automatic coupler which is out of repair and will not work by impact.</p> <p>12. Appeals and errors—when judgment of Appellate Court is' conclusive. If the evidence for the plaintiff fairly tends to support the first count of the declaration, which is based on the Illinois statute concerning automatic couplers on cars, the court is justified in submitting the issues to the jury under that count; and an affirmance by the Appellate Court of the judgment of the trial court in favor of the plaintiff is conclusive upon the Supreme Court, even though the trial court may have erred in vacating, after verdict, an order requiring the plaintiff to elect between that count and one based upon the Federal statute of like import.</p> <p>13. Same—constitutional question is waived by appealing to the Appellate Court. The question whether the statute upon which a suit is based is constitutional is waived by the defendant if he prosecutes an appeal to the Appellate .Court and submits the case upon assignments of error which that court has power to consider and determine.</p> <p>14. Same—verdict will not be disturbed because contrary to instructions which are erroneous. A verdict which is in accordance with the law and the evidence will not be disturbed by the Supreme Court because it is contrary to erroneous instructions given at the request of the party against whom the verdict was returned.</p>

<p>1. Appeals and errors—the .question whether one statute is repealed by another is not a constitutional one. Whether two statutes are in conflict, and if so, whether one is repealed by the other, is a question of judicial construction and not a constitutional one.</p> <p>2. Same—when constitutional question is not involved. A constitutional question is not involved upon the mere assertion of counsel that a statute is unconstitutional, where no claim is made that it conflicts with any provision of the constitution or that it was beyond the power of the legislature, but only that it conflicts with another statute conferring certain rights.</p> <p>3. Same—when Supreme Court is without jurisdiction. Where the only questions in controversy in a suit brought by a guardian on a note are whether there should have been an administration on the estate of the deceased payee, and whether, if no administration was necessary and the title to the note vested in the minor heirs, the Statute of Limitations was a good defense against such minors, the judgment should be reviewed by the Appellate Court and not by the Supreme Court.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. W. B. ScholEiELD, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of Cook county ; the Hon. Julian W. Magic, Judge, presiding.</p>

<p>1. Special assessments—rebate, if any, is to be divided in accordance with judgment of confirmation. The Local Improvement' act requires the question of benefits and pro rata cost between the various pieces of property to be settled in the confirmation proceedings, and if there is any rebate it must be divided in accordance with the judgment of confirmation.</p> <p>2. Same—/lodgment vacating confirmation judgment after term must show that jurisdiction was acquired. The jurisdiction of the county court over a judgment of confirmation ends with the term at which the judgment was entered, and if jurisdiction is subsequently acquired to modify or vacate the judgment, it is. essential to the validity of any order that such jurisdiction be shown by the record.</p> <p>■3. Same-—when rebate must be divided according to original judgment of confirmation. Where a judgment of confirmation is vacated at a subsequent term and a new judgment entered without showing that jurisdiction to vacate the original judgment was acquired, the order vacating the judgment is void on its face and any rebate of the assessment must be divided according to the original judgment.</p>

<p>Appeals from the County Court of Madison county; the Hon. John E. Hillsicotter, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.

<p>Appeal from the County Court of Champaign county; the Hon. Thomas J. Roth, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Appeae from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>Appeal from the County Court of Montgomery county; the Hon. John L. Dryer, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. William L,. Pond, Judge, presiding.</p>

<p>1. Trespass—anything tending to show character of defendant’s possession is competent. In an action of trespass quare clausum fregit, where the defendant relies upon adverse possession of the strip of land in controversy, any evidence of the acts and declarations of the parties which tends to show the character of the possession of the defendant and his predecessor in title, as hostile and adverse to the plaintiff or otherwise, is competent.</p> <p>2. Same—commissioners’ line established in a proceeding under act for permanent surveys must be treated as the true line. The boundary line established by commissioners appointed in a proceeding, under the act of 1901, for the permanent survey of lands, must be accepted as the true line in subsequent litigation between the parties, but rights acquired under the Statute of Limitations before the line was established are not affected thereby.</p> <p>3. Same—defendant has burden of proving his defense of adverse possession. If the plaintiff in an action of trespass quare clausum fregit proves a record title in himself to the land, including the strip in controversy, the burden is upon the defendant to establish his defense of twenty years’ adverse possession of such strip by a preponderance of the evidence, and the burden does not rest upon the plaintiff to disprove the defendant’s claim of adverse possession.</p> <p>4. Instructions'—when instruction in action of trespass quare clausum fregit is erroneous. In an action of trespass quare clausum fregit, where the plaintiff proves record title to the land, including the strip in controversy, and the defendant relies solely upon the defense of adverse possession of such strip for twenty years, it is reversible error to give an instruction which, after stating that the burden is upon the plaintiff to prove his ownership of the land, informs the jury that if, “upon considering the evidence upon this question, you find that the evidence is equally balanced or that it preponderates in favor of the defendants, however slight, then upon this question your verdict should be for the defendants.”</p>

<p>1. Equity—certificate of evidence is part of the record and the decree. The certificate of evidence in a chancery case is a part of the record and of the decree.</p> <p>2. Same—fact that decree is a consent decree need not appear from the decree itself. The fact that a decree in a chancery proceeding is a consent decree need not necessarily appear from the decree itself but may be shown by the certificate of the evidence, if there are no recitals in the decree to the contrary.</p> <p>3. Appeals and errors—when an order denying motion to re-docket partition suit must be affirmed. An order denying leave to re-docket a partition suit to enable the parties to file exceptions to the report of the commissioners must be affirmed, where it appears from the record that the decree approving the report and partition made by the commissioners was entered by the consent of all the parties, who were adults and represented by counsel.</p>

<p>1. Easements—when a city acquires easement for street purposes by prescription. Where the owner of a lot abutting upon a street erects his building some distance back of the street line, and the city uses the strip between tire street and the building for street purposes for over twenty-five years, such strip becomes a part of the street by prescription, and the owner is not thereafter entitled to the use of the strip for his building.</p> <p>2. Same—what does not preclude acquiring of a prescriptive right by city. The facts that a portion of a strip of land between the street line and a building is occupied beneath the surface of the ground by footing stones for the building and that the cornice of the building overhangs the strip, do not show such antagonistic use of the strip by the owner of the building as precludes the city from acquiring a prescriptive use therein for street purposes.</p> <p>3. Same—owner may use his property in any way not inconsistent with public easement. Where property is subject only to a public easement the owner has a right to make any use of his property which he sees fit, provided such use is not inconsistent with the public easement.</p>

<p>Writ or Error to the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Taxes—when county tax rate should be forty-five cents. Where reduction of tax rates to three per cent, as required by the act of 1909, brings the county tax below the minimtim fixed by said act, the county clerk should extend such tax at the minimum rate, which, in counties having a population of less than 300,000, is forty-five cents on each $100 of assessed valuation.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Wirriam H. McSurfry, Judge, presiding.

<p>1. Trusts—courts are loath to disturb titles on oral evidence alone. Courts are loath to disturb long standing titles to land upon oral evidence alone, and will not establish a trust where the evidence consists merely of ambiguous expressions and declarations of the party sought to be charged, and testified to after his death.</p> <p>2. Same—what is necessary to establish trust ex maleficio. To establish a trust ex maleficio as against a plea of the Statute of Frauds, the transaction by means of which the ownership of the property was obtained must be, in fact, a scheme of deceit which amounts to positive fraud.</p> <p>3. Same—when equity will not declare a trust. Equity will not declare a trust where the evidence shows that the grantor, without fraud and with full understanding, conveyed her farm to her brother’s wife upon the agreement that he and his family should leave their home in a foreign State and move upon the farm, furnish the grantor with a home and keep the farm if it could be saved from the debts and encumbrances resulting from the grant- or’s improvidence in transactions with which the brother was not concerned, which agreement was carred out by the brother until his death and thereafter by his wife, who spent a large sum in paying taxes and interest and making improvements on the farm.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. Erank D. Ramsay, Judge, presiding.

<p>Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding.</p>

Lewis Rinaicer, Judge, presiding. This was an application in the county court of Cook county for judgment and order of sale by the county collector of Cook county against the east seven acres of- the east half of the north-east quarter of the south-east quarter, north of the river, (excepting the west two hundred feet east of the railroad,) of section 25, township 39, range 13, in the city of Chicago, county of Cook and State of Illinois, for the taxes of 1909 levied upon…

<p>Appeal from the County Court of Christian county; the Hon. C. A. Prater, Judge, presiding.</p>

<p>Appeals and errors—a freehold is not involved in suit before justice of peace for obstructing highway. An action of debt for obstructing a public highway does not involve a freehold when begun before a justice of the peace, as a justice of the peace has no jurisdiction to determine a question of freehold; and in such case the fact that there was an appeal to the circuit court does not bring in the question of freehold.</p>

<p>1. Constitutional law—words specified in section 33 of article 6 of constitution must be used if suit is a prosecution. If a suit is a prosecution within the' meaning of section 33 of article 6 of the constitution the court cannot dispense with the requirement that such prosecution shall be carried on “in the name and by the authority of the People of the State of Illinois,” and conclude with the words “against the peace and dignity of the same,”. and the omission of such words may be taken advantage of on motion in arrest or on writ of error.</p> <p>2. Same—meaning of the word “prosecutions,” as used in section 33 of article 6 of the constitution. The word “prosecutions,” as used in section 33 of article 6 of the constitution, requiring prosecutions to be in a certain form, me'ans prosecutions of a public or criminal character, and concerns the mode of formal accusation of offenders by presentment or indictment by a grand jury or by information.</p> <p>3. Same—information in nature of quo warranto is to some extent a prosecution. An information in the nature of quo warranto is the substitute for the ancient writ of quo warranto, and was, when introduced, essentially a criminal method of prosecution to punish encroachments upon the prerogative of the crown, and it still retains that character to the extent that the proceedings are in the name of the People and criminal in form, for the double purpose of punishing the usurper and ousting him from the enjoyment of the franchise.</p> <p>4. Same—an action of debt to recover a penalty for practicing medicine without a license is not a “prosecution.” It is not a crime, either at the common law or by statute, to practice medicine without a license, and an action of debt to recover the penalty provided by statute for practicing medicine without a license is not a “prosecution,” within the meaning of section 33 of article 6 of the constitution, but is a civil action, and the rules of criminal pleading and procedure do not apply.</p> <p>5. Same—fací that defendant may he committed to jail to collect debt does not make the suit a prosecution. The fact that the defendant to an action of debt to recover the penalty for practicing medicine without a license may be committed to jail as a method of collecting the penalty does not fix the character of the suit as a prosecution, as meant by section 33 of article 6 of the constitution.</p> <p>6. Same—provision of Municipal Court act for review of judgments on writ of error is not invalid. The provision of the Municipal Court act for a review of the judgments of such court by writ of error from the Supreme Court or Appellate Court is not in violation of section 26 of article 6 of the constitution, as that section relates only to such appeals to the criminal court as may be allowed by statute, and there is no statute providing for an appeal from the judgments of the municipal court.</p> <p>7. Appeals and errors—appeal cannot he taken from municipal court to criminal court. Section 26 of article 6 of the constitution authorizes the criminal court of Cook county to exercise the same jurisdiction as circuit courts in criminal matters in that county and provides that such appeals as may be allowed by law shall be taken to that court, but there is no statute allowing an appeal to that court from the municipal court of Chicago, and no one can prosecute an appeal by virtue of the constitution alone.</p> <p>8. Same-—error in denying an appeal to certain court does not render judgment erroneous. Even though it were error to deny an appeal from the municipal court to the criminal court of Cook county, such error would not render the judgment of the municipal court erroneous nor require a reversal thereof by the Supreme Court on writ of error.</p> <p>9. Same—zvhen appeal cannot he allowed. No appeal can be allowed in the absence of a statute authorizing such appeal and fixing the terms and conditions thereof.</p>

<p>1. Taxes—park and library tax should be excluded when reducing city tax. Under section 2 of the act of 1909, concerning the reduction of tax rates by the county clerk, (Laws of 1909, p. 323,) the park tax and library tax should be excluded before reducing the city tax, whether the city has a population of more or less than 150,000, and in either case the minimum rate below which the county clerk cannot reduce the city tax does not include the rate of the tax for park or library purposes.</p> <p>2. Upon the point that appellant has not preserved an exception to the judgment below, the record in the case is the same as the record in People v. Wabash Railroad\Co. (ante, p. 540,) where it was held that the exception was properly preserved.</p>

<p>Appeal from the County 1 Court of St.Clair county; the Hon. John B. Hay, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Wayne county; the Hon. J. R. CrRighton, Judge, presiding.

<p>1. Taxes—municipal corporation has no inherent right to levy taxes. Before a municipal corporation can levy and collect taxes it must have express authority from the State,' and the grant must be strictly construed and the methods prescribed substantially followed, as a failure to comply with the statutory requirements is not a mere irregularity but a fatal omission, which vitiates the tax.</p> <p>2. Same—requirement that appropriation ordinance be passed zvithin first fiscal quarter is mandatory. The requirement of section 2 of article 7 of the Cities and Villages act that the appropriation bill or ordinance shall be passed within the first fiscal quarter is a provision in the interest of the tax-payer and a prerequisite to the passage of the tax levy ordinance, and a failure to pass the appropriation ordinance until after the first fiscal quarter is ended is a fatal omission, which renders the corporation tax invalid.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Constitutional law—provision as to titles of acts should be construed liberally. Section 13 of article 4 of the constitution, concerning the titles of acts, should be construed liberally in favor of the validity of a statute, and if all the provisions of an act relate to the subject of legislation expressed in the title, and are parts of it, incident to it or reasonably connected with it, said section is complied with.</p> <p>2. Same—details of the legislation need not be mentioned in title of act. The object of the title of an act is to give information as to the subject of the legislation with which the act deals, but the particulars or details of the legislation are to be found in the act itself and need not be mentioned in the title.</p> <p>3. Same—Municipal Court act not invalid because the creation of the court is not mentioned in the title. The Municipal Court act is not invalid because the creation of the court is not men-, tioned in its title, as the title covers everything relating to the creation, organization and procedure of the court; and it cannot be assumed, as against the knowledge of the legislature and the courts to the contrary, that the act was intended to apply to a municipal court already in existence.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>Auditor's certificate of appeal to review the decision of the Board of Review of Union county.</p>

<p>1. Taxes—amended Revenue law requires same per cent of reduction throughout taxing district. Where it becomes necessary, under the amended Revenue law of 1909, (Laws of 1909, p. 323,) to reduce the rate of tax levy in any portion of a taxing district, the act requires the same per cent of reduction in the rate of such tax levy in every other part of the taxing district, in order that a uniform rate shall apply throughout the district.</p> <p>2. Same—the rule for reducing county, town and. city taxes. Where the aggregate of tax rates, exclusive of the levies for State, village, levee, school building, high school and road and bridge purposes and for the payment of bonded indebtedness, is higher in a certain city than in any other taxing district in that county, the county clerk must reduce the county tax, city tax and town tax in the same proportion as is necessary to reduce the said aggregate rate to three per cent on the $100, but if such reduction brings the county and city tax below the minimum rate fixed by law the minimum rate must be used.</p> <p>3. Same—what should be excluded before reducing tax for city purposes. Before reducing the rate of a tax levy for city purposes, which includes levies to pay the principal and interest on bonded indebtedness and for library maintenance and library building purposes, the rates for such levies should be excluded, as the tax rate for bonded indebtedness is not subject to reduction, and the rates for library maintenance and library building purposes, while subject to reduction, are not to be included in the minimum rate fixed by law below which the city tax cannot be reduced.</p> <p>4. Same—what essential to validity of road tax in tozvn under labor system. It is essential to the validity of a road and bridge tax in a town under the labor system that there be a certificate signed by the commissioners of highways and submitted to the board of supervisors for action at the September meeting of the board, and if the certificate upon which the tax was extended was signed only by the county clerk it cannot be amended, on application for judgment for the tax, by adding the names of the commissioners.</p>

<p>Appeal from the County Court of LaSalle county; the Hon. W. H. Hinebaugh, Judge, presiding.</p>

<p>1. Churches—a conveyance for the general use of a religious society is not upon a specific trust. A conveyance to a religious corporation upon" a specific trust will be -enforced by a court of equity and a diversion of the property to other uses prevented, but a conveyance for the general use of a religious corporation is not a conveyance upon a specific trust.</p> <p>2. Same—what conveyances are not made upon a specific trust. A conveyance in trust “for the Cumberland Presbyterian Society for the purpose of a camp ground for divine worship and for a burying ground for the interment of the dead, which shall be free for any orthodox denomination to have divine worship so as not to interfere with the regular rights and privileges of the Cumberland Presbyterian Society,” is not a conveyance upon a specific trust; nor is a conveyance of property to the trustees of a certain presbytery for church purposes, with a condition of reverter, upon re-payment of the purchase money, if it should cease to be so used.</p> <p>3. Same—decision of general assembly of Cumberland church upon questions of faith and doctrine is final. Under the system of ecclesiastical government of the Cumberland Presbyterian Church the general assembly is the highest authority, and its decision upon questions of faith and doctrine must be accepted as final and is binding upon the civil courts. (First Presbyterian Church v. First Cumberland Presbyterian Chu,rch, 245 111. 74, followed.) -</p> <p>4. Same—effect of union of the Presbyterian and Cumberland Presbyterian churches. The Cumberland Presbyterian Church and .the Presbyterian Church in the United States of America having become one through their union, property held in trust before the union for either one of such churches is now held in trust for the united church, unless charged with a specific and inconsistent trust; and'those members who recognize the validity of the union are entitled to the use of the property to the exclusion of those who do not. (First Presbyterian Church v. First Cumberland Presbyterian Church, 245 111. 74, followed.)</p>

<p>Auditor's certificate of appeal to review decision of Board of Review of Cook county.</p>

<p>1. Wills—word "heirs” may be given meaning of "children.” The word “heirs” is not always given its strict legal significance, and if it is used in such a way as to clearly indicate that it is intended to mean “children” it will be given such meaning.</p> <p>2. Same—when word "heirs” zvill be given meaning of "children.” Where a testator devises all of his estate to a named sister, to be divided by her into four equal shares, one share to be retained by her and one share given to each of three other named sisters or their heirs, and “in case either of them shall be dead leaving no heirs, then their shares shall go to the sisters or their heirs who shall be living,” it is clearly the testator’s purpose to divide his estate among the four named sisters or their children, and not to include sisters not named or collateral heirs of the named sisters who may have died, and if three of the named sisters die childless, the surviving one takes the entire estate.</p> <p>3. Aliens—an alien may take title to land in trust. Under the Aliens act of 1897, (Laws of 1897, p. 5,) relating to the right of aliens to take title to real estate in Illinois and hold or convey the same, an alien may take the title to real estate in trust, for the purpose of carrying out a will directing her to divide the estate between herself and three other named persons in equal parts, particularly where, by reason of the death of the other persons, the trustee becomes sole beneficiary.</p>

<p>1. Specific performance—complainant must have clothed herself with right to demand deed. An alleged purchaser of land has no right to apply to a court" of chancery to compel a conveyance of land unless she has, before filing the bill, clothed herself with the right to demand a deed without anything further being done on her part.</p> <p>2. Same—the complainant must show that she has performed, or offered to perform, all precedent conditions. Before an alleged purchaser of land is entitled to a decree of specific performance she must show that she has performed, or offered to perform, all precedent conditions imposed upon her, and that she has always been ready, willing and eager to perform on her part.</p> <p>3. Same—fact that complainant was unable to secure money to tender is no excuse. The fact that the complainant in a bill for specific performance was unable to procure the money at the time it was to be on deposit does not excuse non-performance of that condition even though the defendants failed to furnish an abstract of title to enable her to negotiate a loan, where it was no part of the agreement that any abstract of title should be furnished.</p> <p>4. Same—complainant must show reasonable excuse for failure to perform on time. While the failure to have the purchase money on deposit at the time agreed upon may not, in equity, bar the right of the proposed purchaser to a decree of specific performance, yet it is necessary in such case that there be a reasonable excuse for the delay.</p> <p>5. Same—when equity will not grant relief against conseqvience of failure to perform on time. If a proposed purchaser of land has neither paid anything under the contract nor obligated herself to pay anything in case of a default upon her part and is in no worse condition after the termination of the contract than she was before, and offers no reasonable excuse why she was not ready to perform the contract at the time fixed, there is no ground for equitable relief from the consequences of her failure to perform on time.</p> <p>6. Same—when party is not entitled to decree of specific performance. A party is not entitled to a decree compelling the delivery of a deed to her by her co-heirs, even though the contract, which was made without authority of the co-heirs, might be treated as having been ratified by them, where she did not have the money ready at the time specified for the delivery of the deed and has never tendered the money or had it in her possession to tender.</p>