Volume 270 — Illinois Reports

Writ or Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding.

<p>Appeal from the Circuit Court of Monroe county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Municipal corporations—what rights of the abutting owner cannot be impaired without compensation. Since the constitution of 1870 the owner of property abutting upon a street cannot have his right of ingress and egress or his easement of light and air taken away or materially impaired by the making of a public improvement unless he is compensated for his injury.</p> <p>2. Damages—the constitution of 1870 takes away protection of statutory authority to damage property. Under the constitution of 1870 the fact that a city has statutory authority to pass an ordinance requiring a public improvement to be constructed in a street does not relieve the city from liability for damages sustained by abutting property.</p> <p>3. Same—city is liable for damage to building caused by constructing a tunnel in a public street. Where the construction of a tunnel in a public street by a street railway company in obedience to an ordinance causes a building on an abutting lot to crack and settle and become unsafe, the city is liable in damages, under the constitution of 1870, even though the ordinance was passed by statutory authority, the basis of the liability being the interference with the right of the owner to the full use and enjoyment of his property, including the building. (Rigney v. Chicago, 102 Ill. 64, followed; Otis Elevator Co. v. Chicago, 263 id. 419, explained.)</p>

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

<p>1. Deeds—when a purchaser is charged with notice of misdescription in deed. Where a recorded deed contains a metes-and-bounds description of land, followed by the statement, “conveying 55.15 acres, and is a part of the northeast fractional one-fourth of section 20, township 2, south, range 11, west,” and the purchaser takes possession of a tract of the same shape and size in such quarter section and remains in possession thereof for years, a purchaser of the land is charged with notice of a mistake in the beginning point of the metes-and-bounds description, the effect of which was to put the tract described in section 21.</p> <p>2. Equity—when rule precluding relief against mistake in a written description does not apply. The rule which precludes a court of equity from granting relief against mistakes of description in a written conveyance does not apply where the purchaser against whom the relief is sought had notice of the mistake and of the land intended to be conveyed.</p> <p>3. The other questions involved are controlled by the decision in Kolmer v. Miles, {ante, p. 20.)</p>

<p>1. Injunction—a court of equity may enjoin the obstruction of a public highway. A court of equity may enjoin the-obstruction of a public highway where the right is clear and appertains to the public or where, an individual is injuriously and directly affected by the obstruction in a manner and degree different from the public at large.</p> <p>2. Same—injury need not be so great as to be beyond possibility of compensation. While the complainants’ right must be clear to authorize the enjoining of an obstruction in a public highway and it must appear that the obstruction of the easement will be an irreparable injury, yet it is not required that the easement be absolutely necessary or that the injury be so great as to be beyond the possibility of compensation in damages.</p> <p>3. Sam:e—when highway commissioners are proper parties complainant. Highway commissioners are proper parties complainant to a bill to enjoin the obstruction of public highways, even though part of the land embraced in the highways was originally platted as part of a village, where the owners of such land constructed their fences so as to allow the land to be in the highways, which have been extensively traveled by the public and accepted and worked by the highway commissioners for more than thirty years.</p> <p>4. Same—when individuals are proper parties to bill to enjoin obstruction of highways. Individuals who own land abutting upon a road and who have built their fences and erected their buildings with reference to the road as a means of access to and egress from the property are proper parties complainant in a bill to enjoin the obstruction of such roads.</p> <p>5. Appeals and errors—when decree will not be reversed for misjoinder of parties. If part of the complainants in a bill to enjoin the obstruction of public highways are proper parties and are entitled, under the facts, to the relief decreed, the decree will not be reversed because of the misjoinder, as parties complainant, of two individuals whose injury is not shown to be different in kind or degree from that of the public at large, neither of them owning any land adjacent to the highways.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Appeals and errors—rule where Appellate Court reverses with a finding of facts. Where the Appellate Court reverses a judgment as a result of finding the facts in controversy different from the finding of the trial court and recites in its judgment the facts so found, such finding is by statute made conclusive, and the Supreme Court can only inquire whether the law was properly applied to the facts so found.</p> <p>2. Same—a finding of an ultimate fact may require an application of rules of law. A finding of an ultimate fact frequently requires the application of rules of law, and thus, in a sense, becomes a mixed question of law and fact; but such finding is none the less a finding of an ultimate fact.</p> <p>3. Same—what is a proper finding of an ultimate fact. A finding in the judgment of the Appellate Court reversing a judgment for the plaintiff in an action on a written contract, that the plaintiff “did not acquire the premises described in the contract sued on through foreclosure of the trust deed described in the contract and did not perform or fulfill the conditions of the contract to be performed and fulfilled by him, and the defendant * * * is not indebted to the plaintiff * * * under the contract sued on,” is a proper finding of an ultimate fact.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WindEs, Judge, presiding.</p>

Writ oe Error to the Branch “C” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.

<p>1. Evidence—party defending as an heir is not incompetent to testify. Section 2 of the Evidence act declares parties to a suit incompetent to testify when the adverse party sues or defends as heir or devisee but not when the witness himself is suing or defending as heir or devisee.</p> <p>2. Same—when widow is not competent under the third exception to section 2 of Evidence act. In a proceeding by the widow for assignment of dower, the fact that a witness defending as an heir testifies to the execution by the widow of an ante-nuptial contract, a sworn copy of the record of which is introduced in evidence, does not qualify the widow, under the third exception to section 2 of the Evidence act, to testify that she never entered into any ante-nuptial contract.</p> <p>3. AnTE-nuptiae contracts—when burden is on wife to show she was not fully informed as to property. Where the wife seeks to repudiate an ante-nuptial contract after the husband’s death she must show that there was a marriage engagement between them when the contract was entered into, since otherwise there is no fiduciary relation; and if there is no such engagement shown and the contract merely states that the parties contemplate marriage with each other, the burden is on the wife, in case the provisions of the contract are disproportionate to the husband’s means, to show that she was'not fully informed of her intended husband’s circumstances.</p>

<p>1. Pleading—Ming a plea puis darrein continuance does not waive former pleas. Under section 50 of the Practice act, as amended in 1907, the filing of a plea puis darrein continuance is not a waiver of former pleas.</p> <p>2. Same—a replication admits sufficiency of plea in absence of new matter set up to avoid it. A replication to a plea in mandamus admits the sufficiency of the plea as a bar to the relief sought by the petition unless the new matters set up in the replication are sufficient to avoid the legal effect of matters set forth in the plea.</p> <p>3. Same—one must move to carry a demurrer back. Where a plea is filed to a mandamus petition and there is also a replication to the plea, a demurrer to the replication will not be carried back to test the sufficiency of the plea unless the petitioner makes a motion to that effect, and the judgment of the court will be limited to the sufficiency of the replication.-</p> <p>4. Construction—rules of construction of statutes apply also to ordinances. The rules for the construction of an ordinance are the same as those applied in the construction of a statute.</p> <p>5. Statutes—legislative intention is determined from the law itself. While it is a primary rule of construction that the intention of the legislature must be ascertained and given effect, that intention must be determined from the language used in the act and not from statements of the author of the bill or by those interested in its passage or by members of the legislature.</p> <p>6. Ordinances—rule for construing an ordinance which is a proposition for a contract. Where an ordinance is not enacted for the government of the public generally but is a proposition for a contract, justice to the party accepting the contract demands that the legislative intention be determined from a consideration of the enactment itself.</p> <p>7. Same—acts of a committee for submitting ordinance should not be considered in construing ordinance. The acts of a committee having a proposed ordinance before it for consideration before it is presented to the council cannot be considered in determining the intention of the council in passing the ordinance, but this intention must be determined from the ordinance itself and the situation, disclosed by the pleadings, existing when it was passed.</p>

<p>1. Pleading—when amendment by changing date in a declaration is authorized. Where a declaration in an action for damages against a sanitary district alleges, under a videlicet, the plaintiff’s ownership of the land on March 1, 1904, and that “on, to-wit, that day, and for a long time before that date,” the defendant constructed the ditches which caused the overflow, the court may allow the declaration to be amended by making the date alleged in the declaration January 17, 1900.</p> <p>2. Deeds—when remainder is contingent. Where a deed conveying a life estate expressly provides that at the death of the life tenant the land shall go to and vest in the child or children or descendants of children, if any,- who survive the life tenant, the remainder is contingent until the termination of the life estate, but the fee remains in the grantor, subject to being divested by the happening of the contingency, and at her death, intestate, the reversion in fee descends to her heirs.</p> <p>3. Evidence—when depositions are too remote to be admissible. In an action for damages against a sanitary district for overflowing land, where witnesses testify as to the condition and value of the land in the year 1900, depositions of the same witnesses, taken in the year 1880, in support of a claim for damages to the same land from the construction of a dam, are too remote to be admissible to impeach or contradict the witnesses.</p> <p>4. Same—when elevator books are not admissible. In an action for damages to 577 acres of land due to overflow from the construction and operation of a sanitary ditch, books kept by an elevator firm at which the plaintiff’s tenants delivered corn from the time of the alleged damage to the time of the trial are not admissible at the instance of the defendant as tending to show the amount of corn raised, where the plaintiff owned over 1000 acres of land and there is no way of determining what part of the corn delivered was raised on the land in controversy.</p> <p>5. Appeals and Errors—when judgment will not be reversed on ground damages are excessive. A judgment in a suit at law where the damages are not susceptible of exact computation but must be determined from the testimony and opinions of the witnesses will not be reversed upon the ground that the damages are excessive, unless the verdict is clearly the result of passion or prejudice or manifestly contrary to' the evidence.</p> <p>6. Same—when misconduct of counsel will not reverse. Improper remarks and misconduct of counsel in a suit for damages will not justify a reversal unless their effect is clearly prejudicial to the defeated party, particularly where the verdict does not appear from the evidence to be ..excessive.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Eminent domain—when the jury’s conclusion as to value of land not taken will not be disturbed. Where the jury, on a cross-petition for damages to land not actually taken, have viewed the premises and fixed a compensation within the range of the estimates of the witnesses for both parties, and it does not appear that passion or prejudice has influenced their action, their verdict as to land values and damages will not be disturbed on appeal.</p> <p>2. Same—measure of damages to land not taken. On a cross-, petition for damages to land not actually taken in condemnation proceedings the cross-petitioner is entitled to the highest fair cash market value of the land for the best use to which it is adapted.</p> <p>3. Same—when spoil banks of proposed canal are an element in determining damages to land not taken. The presence of spoil banks of a proposed canal, if they must be located so near the land not taken as to injure its sale if subdivided for residence and business purposes, which the owner claims is its best adapted use, is a proper element for the witnesses to take into consideration in estimating the damages to the land.</p> <p>4. Same—when expert witnesses may testify as to injury to land not taken in construction of a canal. Where the extent to which land not taken in condemnation proceedings will be injured by the construction of a canal in the manner disclosed by the proof is largely a matter of opinion, it is proper to take the testimony of witnesses whose experience qualifies them to express such an opinion.</p> <p>5. Same—when spoil banks may be considered an obstruction to view, light and air in estimating the damages to land not taken. If there is evidence tending to sustain the theory of the cross-petitioner that the use to which the land not taken is best adapted is subdivision for residence and business purposes, then the fact that spoil banks of the proposed canal will obstruct the view, light and air from any portion of the lands not taken may be proved as an element of damages.</p> <p>6. Same—when the sale of lots in subdivisio7i may be proved 071 the questio7i of value of acre property. The sale of lots in a subdivision may be proved on the question of the value of acre property, where the lots are only a block distant from the acre property, were adjacent to each other and sold as a single tract, and the subdivision was a subdivision only on paper.</p> <p>7. Same—when la7ids will not be considered simila7‘ly situated for esti7nati7ig value. Lands situated about a mile away, near a negro settlement and farther from railroads and street railways than the land in question, will not be considered as being similarly situated.</p> <p>8. Same—when Í7istruction to assess damages once for all need not inake exceptio7i for neglige7it or improper constructio7i of proposed work. An instruction which warns the jury of the effect of a final judgment in condemnation proceedings and directs them to assess damages once for all need not make exception for possible negligent or improper construction of the work, where it does not assume to direct a verdict but is only a part of a series of instructions, some of which tell the jury they must conclusively presume that the law will be complied with in all respects in constructing and maintaining the proposed work, the plans for which were in evidence, and where the entire series, taken together, fairly and fully instructs the jury as to the proper measure of damages,</p> <p>9. Evidence—when hypothetical questwis 771 ay be asked. Hypothetical questions may be asked of witnesses in a condemnation proceeding where the matters assumed in them are based upon the evidence in the case and are not conjectural.</p>

<p>1. Deeds—what provision in a will does not render a deed testamentary in character. The fa,ct that a will directs that the note given the testator as consideration for a deed previously made and delivered shall be paid by the maker, who is also the executor of the will, by distributing certain sums as specific legacies, does not render the deed testamentary in character.</p> <p>2. Equity—what does not authorize a court of equity to retain jurisdiction to compel an accounting. If the charges of undue influence and want of delivery in a bill to set aside a deed are not established, a court of equity will not retain jurisdiction merely to require an accounting from one of the defendants as executor of' the grantor’s will, since to do so would amount to taking the administration of the estate out of the probate court, which, under the facts alleged in the bill, could grant all the relief asked for.</p>

<p>Writ oe Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.</p>

<p>1. Statutes—object in construing a statute is to ascertain the legislative intent. The object in construing a statute is to ascertain and give effect to the legislative intent, and to that end the whole act, the law existing prior to its passage, any changes in the law made by the act and the apparent motive for .making such changes, will be weighed and considered.</p> <p>2. Same—when the word "may” will be held to mean "shall.” The fact that the language of a statute is permissive in form of expression does not determine the question of the legislative intent, and the word “may” will be held to mean “must” or “shall” in cases where public interests and rights are concerned and where the public or third persons have a claim of right that the given power shall be exercised.</p> <p>3. Highways—act of 1913, providing that commissioners may reduce width of public road on petition, is mandatory. In view of the facts that section 73 of the Road and Bridge act of 1913 provides that all public roads established under such act shall be forty feet wide, and that section 74 withdraws the question of the consideration of the public interest from the commissioners upon a petition by adjoining land owners to narrow an existing public road to the width of forty feet, which question was reserved to the commissioners by the acts of 1897 and 1907, it must be held that said section 74 is mandatory, notwithstanding its language is permissive in form.</p> <p>4. Same—road may be narrowed on petition for less than its entire length in the township. If a majority of the land owners along one mile of road in a township petition the commissioners of highways to narrow such mile of road to a width of forty feet it is the duty of the commissioners to grant the prayer of the petition, even though the road extends for six miles in the township.</p> <p>5. .Same—when signers of a petition cannot withdraw names. The signers of a petition to highway commissioners to narrow a public road cannot withdraw their names after the commissioners have acted upon the petition and suit is begun in the circuit court to compel the commissioners to grant the prayer of the petition.</p>

<p>1. Special assessments—objections not argued will be regarded as waived. In a special assessment proceeding, where the record shows that objections have been filed, it will be presumed that the objector relied on each one of the objections made, but where it is shown that the party did not, in fact, rely upon all of the objections but only presented some of them to the court, those which appear not to have been urged as reasons upon which the court should act will be regarded as waived.</p> <p>2. Same—when action of the lower court as to allowance of amendments and additional objections to assessments will not be reviewed. The allowance of amendments to objections filed in a special assessment proceeding and the granting of permission to file additional objections are matters within the sound discretion of the court, which will not be reviewed unless the discretion has been abused.</p> <p>3. Same—vuhen question as to mayor's title cannot be raised. In a special assessment proceeding the question of the mayor’s title and his authority to approve the ordinance cannot be raised, where it is not claimed that he was not acting as mayor at the time.</p> <p>4. Same—to hold ordinance unreasonable it must clearly appear so from evidence. An ordinance for the opening of a street cannot be held unreasonable unless it clearly appears from evidence of the situation of the surrounding property and streets that the opening of the street in the manner provided for by the ordinance will not be of benefit to the public and will be oppressive to the owners of property; and such condition does not necessarily arise because no drainage, no pavement and no sidewalks have been provided for in the ordinance.</p> <p>5. Same—when several lots may be assessed as one parcel. Although benefits cannot be assessed in gross on several tracts, yet if several lots are owned and improved as one parcel they may be assessed as one parcel, and where the roll shows such an assessment, in "the absence of evidence to the contrary it will be presumed that the property was properly treated as one parcel.</p> <p>6. Same—what portion of cost of making and collecting assessment must be paid out of general fund. Under section 94 of the Local Improvement act, in a city, town or village having less than 100,000 population, the amount which may be levied by special assessment for the cost of making and collecting the assessment is limited to six per cent of the amount of the assessment, and any additional cost must be paid out of the general fund.</p> <p>7. Same—benefits not limited to purposes for which property has been previously used. The question to be determined in a special assessment proceeding is whether the improvement will enhance the property, in value, and this question is not limited to the purposes for which the property has been previously used.</p> <p>8. Same—what evidence proper on question of benefits to whole property. Whether corner lots fronting on other streets will be benefited or injured by the building of sidewalks and other necessary improvements occasioned by opening a street along their sides is a question upon which witnesses may give their opinions in determining whether the whole property is or is not benefited by the opening of the street.</p> <p>9. Same—when future necessary improvements must be considered. If additional improvements are necessary in order to make the use of a proposed street beneficial to the adjoining property, although no assessment is being made for these improvements, their cost is a proper element to be taken into consideration in determining the amount which the property will be benefited by the pro- ■ posed improvement.</p> <p>10. Same—effect of amendment of 1913 to section 12 of Local Improvement act. The effect of the amendment of 1913 to section 12 of the Local Improvement act is to require the proceedings for making compensation for the land taken or damaged to be governed by the terms of section 49 of such act unless those terms are inconsistent with sections 13 to 33.</p> <p>11. Same—section 49 of Local Improvement act not in conflict with section 23. Section 23 of the Local Improvement act provides for the submission of two issues to the jury in a proceeding to take property for a local improvement and section 49 provides for the submission of another issue, and said section 49 is not in conflict with section 23 but is in addition to it.</p> <p>12. Same—jury may try issue as to proportionate share of cost of improvement. Since the amendment of 1913 to section 12 of the Local Improvement act, the jury are authorized, in a proceeding to condemn land under the Local Improvement act, to consider the issue whether property assessed to pay for the improvement is assessed more than its proportionate share of the entire cost of the improvement.</p> <p>13. Same- instruction should not tell the jury what credit they shall give witnesses. The court may tell the jury the various elements which may be taken into consideration in determining the credit to be given to witnesses, but it is for the jury to determine finally what credit they will give.</p> <p>14. Appeals and Errors—Supreme Court will rely on the abstract of record. The Supreme Court will rely upon the abstract of record, and is not required to search the record to supply matters omitted from the abstract.</p>

<p>1. Lis pendens—rule of lis pendens as applied to cross-actions. The rule of lis pendens does not apply to one who at the time of his purchase of land from the complainant has no notice, from the pleadings then on file, of the claim of a defendant who subsequently files a cross-bill alleging equitable ownership of the land.</p> <p>2. Notice—when a purchaser is not chargeable with notice of equitable claim. One purchasing land from an heir of the holder of the legal title is not chargeable with notice that the husband of such holder claims to be the equitable owner, where the husband, at the death of the wife, waived his right to administer upon her estate and did not claim any interest in the land except as surviving husband, and where it is not shown that the husband leased the land or collected rents, although it was occupied by tenants at the time of and for many years prior to the purchase from the heir.</p> <p>3. Equity—when subsequent purchaser must prove payment of consideration. In equity a subsequent purchaser, in order to establish the fact that he is a bona fide purchaser for value, has the burden of proving that there was a valuable consideration and that it has been paid. (Brown v. Welch, 18 Ill. 343, followed.)</p> <p>4. Same—what does not prove grantee bona fide purchaser for value. Mere proof of a deed reciting a certain consideration is not sufficient, in equity, to prove that the grantee was a bona fide purchaser for value. (Lowden v. Wilson, 233 Ill. 340, distinguished.)</p>

<p>1. Corporations—when compensation of officer is illegal. Compensation voted to an officer of a corporation is illegal if the resolution fixing such compensation is carried by his vote.</p> <p>2. Same—how corporations are to be controlled in Illinois. In Illinois a corporation is to be controlled byja majority of its stockholders acting through directors elected by them in person or by proxy, although it is legitimate for owners of a majority, of the stock to combine for the purpose of controlling the corporation.</p> <p>3. Same—stockholders cannot divest themselves of power to vote for directors. The power to vote for directors can be exercised only by stockholders, in person or by proxy, and they cannot be deprived or deprive themselves of this power, as they cannot evade the duty imposed upon them by law of using tlieir power as stockholders for the welfare of the corporation and the general interest of its stockholders.</p> <p>•4. Same—stockholder may withdraw^ from combination to control a majority of stock. A stockholder may ordinarilyLyitEdraw from a combination to control the majority of the stock of the corporation and from a contract not to transfer his shares to the opposition or to vote against the combination, even though it is expressly agreed that the contract shall be irrevocable,</p> <p>5. Same—what agreement as to control of corporation is invalid. While the pooling of stock for the purpose of electing directors aHflT'dfficers and controlling the management of the business of the corporation is not necessarily illegal, an agreement the purpose and effect of which are to,permit the affairs of_the_cor-. poration to be managed by the determination of persons ptherjhan "stockholders or by a minority of its own stockholders is, invalid,,,</p> <p>6. Same—power to vote can only be delegated by proxy, with power of revocation. The power to vote is inherently attached to and inseparable from the real ownership of each share of stock, ánd can only be delegated by proxy, with power of revocation. (Venner v. Chicago City Railway Co. 258 Ill. 523, explained.)</p> <p>7. Same—proxy to vote stock is alzvays revocable. There is no such thing as an irrevocable proxy to vote stock not coupled with any interest in the stock itself other than the right to vote it, and a proxy, though stated to be irrevocable, may be revoked at any time.</p> <p>8. Same—a stockholder must be free -to cast his vote. Each stockholder must be free to cast his vote, whether by himself or by proxy, for the best interest of the corporation, and each stockholder has the right to demand that every other stockholder, if he desires to do so, shall have the right to exercise at each annual meeting his own judgment as to the best interest of all the stockholders.</p> <p>9. Same—what voting trust agreement is not binding. A voting trust agreement by which a stockholder owning but á'Tew shares of stock is made a trustee of a majority of the stock, with power,for ten years, to elect, alone, three of the five directors of the corporation and to formulate and determine its policy, unrestrained or uninfluenced by the other stockholders, is not binding, and any stockholder or purchaser of stock with notice .of the'agreement may withdraw from the agreement and compel the trustee to deliver the certificates for the stock.</p>

<p>1. Public utilities—what the term "public utilities” includes as applied to telephone companies. The term “public utilities,” as used in the act creating the Public Utilities Commission, includes every corporation, company or individual that may own or manage for public use any plant, equipment or property used for or in connection with the transmission of telephone messages between points within this State.</p> <p>2. Same-—jurisdiction of the Public Utilities Commission. The jurisdiction of the Public Utilities Commission is by the terms of the statute confined to the control and supervision of owners and operators of property devoted to -a public use.</p> <p>3. Same—purpose of Public Utilities act. The purpose of the Public Utilities act is to bring under control by the public, for the common good, property applied to public use in which the public has an interest, and the owner of such property must submit to be controlled by the public to the extent of its interests as such public use is maintained.</p> <p>4. Same—what constitutes a public use. To constitute a public use it is not necessary that the benefits be received by the whole public or even a large part of it, but all persons must have an equal right to the use and it must not be confined to specific, privileged persons.</p> <p>5. Same—what implied in the term “public utility.” The term “public utility” implies a public use carrying with it the duty to serve the public and treat all persons alike, and it precludes the idea of service which is private in its nature, whether for the benefit of a few or of many.</p> <p>6. Same—when telephone company not a public utility. Where by the charter of a corporation the use of its telephone system is limited strictly to the members of the corporation, and it has no authority, under its charter, to erect or maintain any telephone line for the service of the public, the company is not a public utility, and the fact that it has a license to construct and operate telephone poles, wires and fixtures in the streets does not give the Public Utilities Commission jurisdiction over it nor tend to prove that' the use is public. (State Public Utilities Com. v. Noble Mutual Telephone Co. 268 Ill. 411, and Buncombe Telephone Co. v. McGinnis, id. 504, distinguished.)</p> <p>7. Corporations—nature of corporation to be ascertained from its charter. The nature of a corporation and the purpose of its organization must be ascertained by reference to the terms of its charter and do not depend upon the number of persons engaged in the enterprise for their mutual benefit, and such corporation can exercise only those powers that are within the scope of its charter.</p>

<p>1. Quo warranto—power of court to vacate an order granting leave to file an information. Where, during the term at which an order granting leave to file an information in the nature of quo warranto is entered, a motion is made to vacate the order, the court has discretionary power to allow the motion and vacate the order upon a showing that the leave was inadvertently or improvidently allowed under a misapprehension of the facts or the law; and this is true though one judge of the court granted the leave and another heard the motion to vacate.</p> <p>2. Same—effect of rule of superior court providing for a motion judge. The existence of the rule of the superior court of Cook county providing for a motion judge on the law side of the court and the designation of a judge of • that court as motion judge do not prevent any other judge of the court from passing upon any motion, where no objection is interposed and his action is taken with the consent of the parties, express or implied, and with the permission of the court.</p> <p>3. Same—affidavits may be filed on motion to vacate leave. On motion to vacate an order granting leave to file an information in the nature of quo warranto, affidavits may be filed for the purpose of bringing to the attention of the court any fact or facts necessary to enable the court, in connection with the petition, to determine whether there was probable cause for granting the leave.</p> <p>4. Municipal corporations—a city may require unification of street railways. A city has power to require the combination, union or merger of the street railways within its jurisdiction, and the street railway companies have power to comply with such requirement by effecting a combination, union or merger of their properties for the joint operation of their lines under single management.</p> <p>5- Same—Chicago unification ordinance and agreement of November 13, 1913, are valid. The Chicago unification ordinance of November 13, 1913, and the operating agreement contained therein with the street railway companies of the city, do not amount to a transfer by the companies of their rights and franchises to individuals nor do they relieve said companies of any of their corporate powers, duties or responsibilities, but are merely intended to secure the operation of the street railways as one system under the management of a board, and are valid.</p> <p>6. Same—Chicago Surface Lines Board of Operation is merely an agency. The members of the Chicago Surface Lines Board of Operation are merely the agents or servants of the street railway companies appointing them and are employed for the purpose of managing the companies as one system, and the fact that they are-given the absolute management of the details of the business does not amount to an assumption by them of corporate powers nor to a surrender of corporate powers by the street railway companies.</p> <p>7. Same—term “Chicago Surface Lines” is merely a name— effect of suit in such name. The term “Chicago Surface Lines” is merely a name used for convenience in the operating agreement of November 13, 1913, to designate the combined properties of the street railway lines in Chicago, and a suit brought against the Chicago Surface Lines is ineffective as against any of the companies to the operating agreement even though service may be had upon the proper officers of some one or more of the companies.</p> <p>8. Same—what does not show that board is attempting to exercise privileges of corporation. The fact that the Chicago Surface Lines Board of Operation, in a suit brought against it which should have been brought against one of the street railway companies, did not take advantage of the failure to name the proper party defendant but entered the appearance of the board, does not show that the board is attempting to exercise the privileges of a corporation.</p>

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.

<p>1. Partition—partition decree should not decree mortgage lien on property not covered thereby. It is error in a partition proceeding to decree a mortgage lien upon all of the property sought to be partitioned where one tract of the land is not covered by the mortgage.</p> <p>2. The other questions involved are controlled by the decision in Kolmer v. Miles, {ante, p. 20.)</p>

<p>1. Deeds—when trustees cannot dispute the validity of a deed. Where a deed is made to the grantor’s daughters conveying the grantor’s estate to them as trustees and they accept the trust in writing, they are not entitled to’ thereafter dispute the validity of the deed on the ground that the grantor was mentally incompetent.</p> <p>2. Same—ratification may cure insufficiency of power of attorney. - Even though the powef of attorney under which an acceptance by one of the trustees .in a trust deed was signed may not have been sufficiently broad in its terms to authorize the acceptance, yet if the trustee thereafter ratifies the deed by acting thereunder she cannot dispute the validity of the deed.</p> <p>3. Same—what is sufficient delivery of stocks and bonds. Stocks and securities conveyed by deed are sufficiently delivered where the grantees went with the grantor to the safety deposit company and deposited the stocks and securities in a box under a signed agreement that the box- could only be opened by the grantor when accompanied by two of the three grantees but could be opened by any two of the grantees; and the delivery is not affected by the fact that the grantor kept both keys to the box for some time before she gave one of them to the grantees.</p> <p>4. Same—vested remainder defined. A vested remainder is one that throughout its continuance gives to the rémainder-man or his heirs the right to the immediate possession, whenever and however the preceding estate may determine, and there must be some certain person in being and ascertained who answers the description of remainder-man at some time during the continuance, of the particular estate and not merely at the time fixed for its termination..</p> <p>5- Same—contingent remainder defined. A contingent remainder is one which is limited by the instrument creating it either to a person not yet ascertained or not yet in being or so as to depend upon a dubious and uncertain event, .the uncertainty not being whether the remainder-man will ever enjoy the estate but whether there will ever be a right to such enj oyment.</p> <p>6. Same—the law favors vesting of estates -but will not override donor’s intention. The law, having regard to the public welfare, is inclined to regard an estate as vested and thereby profnote the free transfer of property, but it will not override the intention of the donor as expressed in the instrument.</p> <p>7. Same—remainder may be contingent though event determining the preceding estate is certain. Even though the event which is to determine the preceding estate,—the death of the grantor,— is certain to occur, yet the remainder is contingent if the persons who are to succeed to the estate in remainder are not ascertained.</p> <p>8. Same—when a remainder created by a deed is contingent. A deed conveying all of the grantor’s estate to her three named daughters and the survivors of them, in trust, to hold the title dur-</p> <p>. ing the grantor’s life and at her death to divide the property equally among themselves, and make conveyances, if a division is agreed upon, or through commissioners appointed by the court, creates a contingent remainder in the daughters, where it is further provided that each daughter shall have power to will or devise her respective share, and in case of- the death of any daughter, intestate, before the grantor’s death, then the children of such deceased daughter shall take the parent’s, share, and if she leaves a husband, the latter shall have the same use of the property, both real and personal, as he would have under the statutes of Illinois; and Under such deed the husband of a daughter whose,death has occurred in the lifetime of the grantor does not take as heir but takes under the terms of the deed, as surviving husband.</p>

<p>1. Public utilities—when commission is without jurisdiction to make order as to alleged discrimination. Where the complaint by a shipper does not allege that the rate charged for the 90-mile haul of sand and gravel from his plant to Chicago is unreasonable, but only that he is unjustly discriminated against because the railroad' company will not give him the same rate it charges shippers of sand and gravel from a zone extending from 38 to 55 miles from Chicago, the Public Utilities Commission has no power to make an order finding unjust discrimination and ordering the railroad company to extend its zone to include complainant’s plant, but its only power is to begin suit against the company under the act of 1873.</p> <p>2. Same—act of 1873 covers the subject of unjust discrimination. The act of 1873 (Laws of 1873, p. 135,) covers the subject of unjust discrimination in railroad rates and provides for penalties to prevent public injury and an action to compensate the injured shipper, but in a prosecution under such act the defendant is entitled to a jury trial.</p>

<p>1. Practice—participation in trial waives right to insist that cause was not at issue. Complainants in a bill to construe a will, by participating in the trial of the cause and until its conclusion, waive their right to file replications to the answer and to insist that the cause was not at issue.</p> <p>2. Same—when chancellor may hear cause on bill and answer. Where a bill to construe a will creating a trust sets out the will in hcec verba the chancellor may construe the will on the bill, and answers without proof, as proof aliunde could not legally be heard to amplify, limit, enlarge or explain the will, and if the complainants offer no evidence they waive the point that the court should have heard evidence.</p> <p>3. Same—when proposed amendments to bill are properly rejected. Proposed amendments to a bill to construe a will are properly rejected where their substance is recited in the will itself and are not matters which are proper for consideration in construing the will and where they are offered so late in the proceedings that it was within the discretion of the chancellor to reject them.</p> <p>4. Wiles—when provision does not violate rule against perpetuities. A provision in a will that the trust created thereby shall terminate at a certain time, except that the estate devised to a named daughter “shall always remain in trust,” means in trust for the life of said daughter and does not violate the rule against perpetuities, which has reference only to the time within which the title shall vest.</p> <p>.5. Same—when will provides for disposition of corpus as well as income of estate. Where the testator devises his property to trustees, “to dispose of the estate and the income thereof as follows,” directs the payment of annuities to his wife and one daughter, directs the distribution of the remaining net income in certain portions to his other children, and provides that at the death of the annuitants the trust shall terminate and the estate be distributed, the corpus of the estate will be regarded as given to the distributees of the net income, excluding the two annuitants, in equal portions, even though they' are given unequal portions of the net income, there being nothing in the will requiring an unequal division of the corpus.</p> <p>6. Same—when rule that a devise of income is a devise of the corpus will not be applied. The rule that a devise of rents, profits or income is a devise of the corptis of the estate will not be applied where its effect will be to defeat the testator’s intention.</p> <p>7. Same—it is presumed that the testator intended by his will to dispose of all his property. It is presumed that the testator intended by his will to dispose of all his property and not to die intestate as to any of it; and this pres'umption is strengthened by a statement of the testator in the will that the will was made for the purpose of disposing of his estate and the income thereof.</p> <p>8. Same—when provision for trustees’ reports and compensation is not invalid. A provision in a will that the trustees named shall make annual reports to the court and receive reasonable compensation for their services is not invalid upon the ground that no court has jurisdiction to act in the matter, as courts of general chancery jurisdiction may receive and pass upon the reports and determine the question of compensation.</p> <p>9. Same—when solicitors’ fees should be allowed to be paid by the estate. Where a will is so ambiguous or uncertain as to require construction, the costs and expenses of the proceeding, including reasonable fees for the solicitors, should be paid by the estate, even though the will is construed adversely to the contentions of the complainant.</p> <p>10. Same—when final decree should be entered without an order of dismissal. Where the court takes jurisdiction of a bill to construe a will creating a trust and construes the will so as to determine the rights of the parties, a final decree should be entered in accordance with such findings without an order dismissing the bill.</p>

Writ or Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Dean Franklin, Judge, presiding.

<p>1. Parks—the Park act of June 24, 1895, does not govern procedure under former acts. In making a local improvement by special assessment park commissioners may elect as to whether they will proceed under the acts of June 16, 1871, and June 21, 1895, or under the act of June 24, 1895, and if they elect to proceed under the former acts the procedure is governed by such acts and not by the act of June 24, 1895.</p> <p>2. Same—limit of inquiry by courts after park commissioners have made their election. After park commissioners have elected under which statute they will proceed in making a local improvement, the courts can only inquire whether the commissioners have followed the provisions and requirements of the statute selected.</p> <p>3. Special assessments—when estimate of cost in gross is sufficient. The Park acts of June 16, 1871, and June 21, 1895, do not require that the estimate of the cost of the improvement be itemized, and where the improvement is to be constructed under such acts an estimate in gross is sufficient,</p> <p>4. Same—when a refusal to apportion part of cost to public is proper. A refusal by the court to apportion part of the cost of a local improvement to the public is proper where the park commissioners, in making the improvement by special assessment, are proceeding under the Park acts of June 16, 1871, and June 21, 1895, as neither section 3 of the act of 1871 nor any other provision of the acts in question authorizes such apportionment.</p> <p>5. Same—what does not constitute mere repair work. The fact the park commissioners provide, in the ordinance for the first improvement of a street by special assessment, that the base of the old pavement, which has been in use for many years, shall be used as the base of the new pavement, does not make the improvement mere repair work instead of an improvement which may be made by special assessment.</p> <p>6. Same—first improvement of a street means first improvement by park commissioners. The first improvement of a street means the first improvement by the park commissioners, and does not refer to the former condition of the street as improved or unimproved.</p> <p>7. Constitutional law—provision of the statute exempting property of South Park Commissioners from assessment is invalid. Section 15 of the act of 1869, creating the board of South Park Commissioners, is valid in so far as it purports to exempt the property of the corporation from taxation, but in so far as it purports to exempt such property from assessment for benefits it is invalid.</p>

<p>1. Appeals and errors—what is not a waiver of right to raise a constitutional question. The filing of additional counts charging common law negligence after a demurrer to the other counts has been sustained upon the ground that a certain statute therein counted upon is unconstitutional, is not a waiver of the right to raise the question of the constitutionality of such statute in the Supreme Court on appeal.</p> <p>2. Constitutional law—the Workmen’s Compensation act of 1911 was properly passed. The Workmen’s Compensation act of 1911 is not invalid by-reason of the manner of its passage by the General Assembly. (Dragovich v. Iroquois Iron Co. 269 Ill. 478, followed.)</p>

<p>1. Street railways—effect of annexation upon street railway ordinance. Upon annexation of a town to a city, ordinances of the town providing for the construction, maintenance and operation of a street railway, which ordinances have been accepted by the company, remain in force, but the city, with the consent of the company, may change the ordinances or make entirely new ones, as the jurisdiction of the town over the company ceases when it loses jurisdiction over the streets and alleys in the territory annexed to the city.</p> <p>2. Same—one municipality cannot regulate street railways in another. An attempt by a village to regulate by ordinance the affairs of a street railway company whose lines are in an adjoining city, by requiring a company operating within the jurisdiction of the village to exchange transfers with the city lines, is beyond its power and void and can only be enforced with the consent of the city, as the latter’s jurisdiction over its own streets and alleys, and street railway lines operating thereon, is absolute.</p> <p>3. Same—object of the Chicago ordinances concerning the Chicago Railways Company. The object of the ordinances of the city of Chicago concerning the Chicago Railways Company was to bring all the lines of street railway, as nearly as possible and as soon as possible, into one homogeneous system, operating under a single control and a single ordinance or substantially similar ordinances, and the questions of rates of fare, through routes, exchange of transfers, a single fare for one ride in the city, the making of operating agreements and the expiration of ordinance rights were all considered and provided for with direct reference to producing uniform operation within the city.</p> <p>4. Same—section 8 of the ordinance of 1913 prohibits exchange of transfers with outside lines. Section 8 of the Chicago ordinance of 1913 expressly prohibits the exchange of transfers between the Chicago Railways Company and street railway lines outside the limits of the city; and such must be regarded as the effect of said section 8, notwithstanding the statement in the proviso thereto that the section is not intended to change the ordinances of 1907 and 1910.</p> <p>5. Same—when ordinance does not deprive public or individual of any legal right. The power of a municipality to regulate the rate of fare of a street railway company is dependent upon the jurisdiction of the municipality over its streets and alleys and is subject to a transfer of jurisdiction of the streets to another municipality, and the abrogation of a contract between the municipality and a street railway company by repeal or modification of the ordinance does not deprive the public or any individual of any legal or constitutional right.</p> <p>6. Ordinances—order of clauses is not conclusive of legislative intent. The fact that the proviso is the last clause in a section of an ordinance does not mean that it must prevail as the last expres?sion of the legislative intent, as an ordinance is regarded as a whole, whose parts are all established at one time, and if a preceding clause or section conforms to the obvious policy and intent of the legislative body it is not rendered inoperative by inconsistent provisions of a subsequent clause or section, and in such case the subsequent provisions will be disregarded.</p> <p>y. Mandamus—mandamus will not issue to compel corporation to do what it has no power to do. Mandamus will not be granted at the suit of a village to compel a street railway company within its territorial jurisdiction to do an act which it is apparent is beyond the power of the company to do, even though the company has accepted an ordinance of the village which imposes that duty upon it.</p>

<p>1. Appeals and errors—when a freehold is involved. Where the jury in an attachment suit find that the lands attached do not belong to the person claiming them by a verified interplea, the latter has the right to appeal directly to the Supreme Court upon the ground that a freehold is involved.</p> <p>2. Attachment—lien of attachment does not exceed actual interest of debtor at time of levy. The lien of an attachment does not exceed the actual interest the debtor had in the land at the time of the levy, and under the Attachment act any person claiming title or interest in the attached property may intervene.</p> <p>3. Deeds—effect where instrument has no seal. An instrument defective as a deed for want of a seal will bind the grantor and is good as against a subsequent purchaser with notice.</p> <p>4. Notice—what is notice to subsequent purchasers. If the • grantee in a quit-claim deed having no seal records the instrument and enters into possession of the land by a tenant, both the recording of the instrument and the possession operate as notice to subsequent purchasers as to the grantee’s rights.</p> <p>5. Evidence—when deed not under seal is admissible in attachment. Where the person interpleading in an attachment suit purchased the land and entered into possession thereof by his tenant under a recorded deed before the levy of the attachment, the deed, though defective for want of a seal, is admissible in evidence, irrespective of the act of 1909, for the purpose of showing the extent of the grantee’s possession and what he claims by his possession.</p> <p>6. Same—deed not under seal is evidence of a sale. An instrument purporting to be a quit-claim deed and recorded as such is evidence of a sale and shows a transfer of the equitable title even though it is without a seal and has a defective acknowledgment.</p>

<p>1. Injunction—tax-payers may maintain bill to prevent misapplication of public funds. Tax-payers have a right to maintain a bill in equity to prevent the misapplication of public funds, such right being based upon their equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misapplication.</p> <p>2. Same—tax-payers may maintain bill to enjoin payment of funds from State treasury. The right of tax-payers to maintain a bill to prevent the misapplication of public funds is not limited to the public funds of a municipal corporation, -but they have a right to maintain a bill to restrain the State Treasurer and the Auditor from paying out moneys appropriated by the General Assembly upon the ground that the acts of the General Assembly were unconstitutional and void.</p> <p>3. Same—appropriation of public funds by an unconstitutional statute is a misuse of such funds. An appropriation of public funds in pursuance of an unconstitutional statute is a misuse of the funds, which may be restrained by injunction at the suit of a tax-payer. (Burke v. Snively, 208 Ill. 328, and Jones v. O’Connell, 266 id. 443, approved.)</p> <p>4. Constitutional law—section 16 of article 4 of the constitution construed. The provision of section 16 of article 4 of the constitution that “bills making appropriations for the pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject,” does not mean on any other subject than appropriations, but. on any other subject than that of appropriations for the pay of the members and officers of the General Assembly and for salaries of officers of the State government.</p> <p>5. Same—appropriation bill for pay of salaries of officers of the State government must not include employees. Appropriations for the pay of the- members and officers of the General Assembly and for .the salaries of the State officers must, under section 16 of article 4 of the constitution, be contained in a separate bill, which shall not include appropriations for the pay of employees.</p> <p>6. Same—appropriations for salaries of State oMcers are invalid if contained in Omnibus Bill. Appropriations for the salaries of officers of the State government are invalid if they are contained in the general Appropriation bill, commonly known as the Omnibus Bill, and if the separate appropriation bill for the pay of officers and members of the General Assembly and for the salaries of State officers contains appropriations for other purposes the appropriations for such other purposes are invalid.</p> <p>7. Same—General Assembly must follow constitutional definition of an office. In making appropriations for the salaries of State officers the General Assembly must be guided by the definition of an office found in section 24 of article 5 of the constitution in order to determine who are officers and who are mere employees.</p> <p>8. Same—constitutional definition of an office contains two essential elements. The definition of an office found in section 24 of article 5 of the constitution contains two essential elements: First, that the position must be a public one, created either by the constitution or by law; and second, that the position must be a permanent one, with continuing duties.</p> <p>9. Same—what is meant by a position created by law. A position created by. law, as meant by section 24 of article 5 of the constitution, is one created by an act of the General Assembly passed for that purpose, and the mere appropriation of money for the payment of compensation to the incumbent of a specified position does not have the effect of creating an office or of giving such incumbent the character of an officer.</p> <p>10. Same—how question whether position is permanent is to be determined. If the duties of a position are continuing and it is necessary to elect or appoint a successor to the several incumbents, then the position is a permanent one within the requirement of the constitutional definition of an office, whether the incumbent of the position is elected or appointed and whether elected for a fixed term or appointed during the pleasure of the appointing power, and such a position is an office, provided it has been created by the constitution or by law.</p> <p>11. Same—an appropriation to Governor for executive mansion expenses is not invalid. The appropriation of 1915 of $13,000 per annum to the Governor for the care of the executive mansion and grounds and for heating, lighting, expenses of public receptions, wages and sustenance of employees, automobile and stable expense, and other incidental expenses of the executive mansion, is not for the personal expenses of the Governor or his family, and is not invalid as an attempt to increase the salary of the Governor, which is fixed by law at $12,000, “together with the use and occupancy of the executive mansion.”</p> <p>12. Same—appropriation for necessary traveling expenses of the Lieutenant-Governor not invalid. The appropriation of 1915 to the Lieutenant-Governor for traveling expenses is lawful to the extent he is necessarily required to expend money for railroad fare or other means of conveyance .in performing his duties as presiding officer of the senate.</p> <p>13. Same—appropriation to the Secretary of State for editing Blue Book is valid. The appropriation of 1915 to the Secretary of State “for editing the Blue Book” is not an appropriation for the personal use of the Secretary of State nor for an additional compensation to him for services but is for money paid out by him in such matter and is a valid appropriation; and in like situation is the appropriation of 1915 to the Superintendent of Public Instruction for conducting certain examinations, setting questions and correcting manuscript.</p> <p>14. Same—appropriation for telephone toll for members of the General Assembly is invalid: The appropriation of 1915 of $2500 to the Secretary of State for telephone toll for members of the General Assembly is invalid, as in conflict with that part of section 21 of article 4 of the constitution which expressly limits all incidental expenses of a member of the General Assembly to $50 per session.</p> <p>15. Same—appropriation, to be valid, must be for definite sum. Under the constitution an appropriation, to be valid, must be for a definite sum, and an appropriation to the State Treasurer not for any specific amount but for “such sums as may be necessary to refund taxes on real estate sold or paid on error, and for overpayment of collectors’ accounts under laws governing such cases,” is invalid.</p> <p>16. Same—Attorney General has all the common law powers and duties of that officer. The constitution, by creating the office of Attorney General under its well known common law designation and providing that he shall perform such duties as may be prescribed by law, engrafted upon the office all the powers and duties of an Attorney General as known at common law, and gave the General Assembly power to confer additional powers and impose additional duties upon him but not to strip him of any of his common law powers and duties as the legal representative of the State.</p> <p>17. Same—extent to which act of i8pp transferred powers and duties of Attorney General to the Insurance Superintendent. The act of 1899, (Laws of 1899, p. 256,) which purports to transfer to to the Insurance Superintendent all the powers and duties of the Attorney General conferred and imposed upon him by the statutes relating to insurance, is valid only as to such additional powers and duties of the Attorney General as were not inherent in his office under the constitution.</p> <p>18. Same—Insurance Superintendent must look to the Attorney General for legal services. While the Insurance Superintendent, under the act of 1899, may institute prosecutions and maintain any suits with reference to insurance which had formerly been prosecuted in the name of the Attorney General, yet he must look to and depend upon the Attorney General for all legal services in reference thereto.</p> <p>19. Same—the Attorney General is the chief law officer of the State. The Attorney General is the chief law officer of the State and the only officer empowered to represent the people in any suit or proceeding in which the State is the real party in interest, ex-cept where the constitution or a constitutional statute may provide otherwise, and with this exception only he is the sole official adviser of the executive officers and of all boards, commissions and departments of the State government, and it is his duty to conduct the law business of the State, both in and out of the courts.</p> <p>20. Same—appropriation to Insurance Superintendent for legal services is invalid. The appropriation of 1915 to the Insurance Superintendent for legal services, and for traveling expenses of attorneys and court costs in prosecutions for violations of the insurance laws, is unconstitutional and void.</p> <p>21. Same—appropriation for expenses of prosecutions of violations of law is valid—what not included. The appropriation of 1915 to the Insurance Superintendent for expenses of prosecutions of violations of the insurance laws is valid to the extent of expenses legitimately incurred in conducting investigations in connection with such prosecutions; but this does not include fees for attorneys employed to perform legal services.</p> <p>22. Same—the appropriations to certain State boards for prosecuting violations of law do not include attorneys’ fees. The appropriations of 1915 to the Rivers and Lakes Commission “for prosecutions,” and to the State Board of Pharmacy for “investigating and prosecuting illegal sale of narcotic drugs,” are valid, and cover legitimate expenses concerning such matters but cannot include fees for attorneys.</p> <p>23. Sam:E—what is not the withdrawal of funds from the State treasury by resolution. An appropriation contained in the Omnibus Bill, if the bill is regularly passed, does not violate the provision of the constitution against withdrawing funds from the State treasury by resolution, even though the committee for whose expenses the appropriation was made was created by resolution.</p> <p>24. Same—appropriation for expenses of committee appointed by resolution to sit after sine die adjournment is invalid. A committee appointed by joint resolution of the General Assembly for performing duties after the sine die adjournment of the legislature has no power or authority to act except as the members may volunteer to act as private individuals, and an appropriation to pay the expenses of such a cqmpiittee invalid.</p> <p>25. Same—powers delegated by resolution cease with sine die adjournment of legislature. All the powers of the legislature, as such, cease upon its final adjournment, and all the powers which have been delegated by it to a committee by mere resolution also cease; but the legislature has power, by an act regularly passed, to create a commission for any proper purpose, to act during the session of the legislature or after its adjournment.</p> <p>26. Same—Governor cannot approve part of an item and veto remainder. The power given to the Governor by the constitution to disapprove of and veto any distinct item or section in an appropriation bill does not give him the power to disapprove of a part of a distinct item and approve the remainder, and if he vetoes part of an item by striking out the words “per annum” or by approving a part of the amount of one item and disapproving the remainder, his action is void and the whole item remains in force as passed by the legislature.</p>

<p>Contracts—one child may release to another his claim in expectancy as to residue of parent’s estate. It is lawful for children to agree with each other to accept from their father certain tracts of land or sums of money as present gifts in lieu of any right or claim they may have in expectancy in the father’s land, and if the agreement is carried out and the gifts accepted, respectively, by all the children but one, to whom the father neglected to make any deed, such one may enforce the agreement in equity as against the others, and the Statute of Frauds is not available as a defense.</p>

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

Writ oe Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.

<p>Appeal from' the Circuit Court of Cook county; the Hon. J. H. Fornoee, Judge, presiding.</p>

<p>Appeal from the County Court of St. Clair county; the Hon. William S. Dewey, Judge, presiding.</p>

<p>1. Constitutional law—section 126 of the Practice act does not violate section 14 of article 4 of constitution. Section 126 of the Practice act, which exempts members of the General Assembly from the service of civil process during a session, does not contravene section 14 of article 4 of the constitution, concerning the exemption of members of the General Assembly from arrest.</p> <p>2. Same—statute exempting members of the General Assembly from service of civil process during session is invalid. Section 126 of the Practice act, which exempts members of the General Assembly from the service of civil process during the session of such assembly, is in violation of the provision of section 22 of article 4 of the constitution that no local or special law shall be passed granting to any corporation, association or individual any special or exclusive privilege or immunity.</p> <p>3. Same—the exemption from arrest does not include the service of civil process. The exemption from arrest which is granted by section 14 of article 4 of the constitution to members of the General Assembly does not include exemption from the service of civil process.</p>

<p>. 1. Pleading—amendment of the declaration need not state the same cause of action as the original. The fact that the declaration in an action against a sanitary district alleges facts which show a permanent injury to land does not preclude the plaintiff from filing an amended declaration alleging temporary injury to crops, pasture, timber and the use of the land, but the filing of the amendment stating the new cause oij action is regarded as the beginning of a new suit commenced at the date of filing the amendment, and is so treated in considering a plea of the Statute of Limitations.</p> <p>2. Same—plaintiff not estopped by averments of declaration to amend it. The fact that the plaintiff, in drawing his original declaration, may have been mistaken as to his rights or the facts from which they arose does not preclude him from amending the declaration to enable him to maintain his action, as he is not estopped by the averments of the declaration to amend it.</p> <p>3. Same—when a formal plea of the Statute of Limitations is proper. Where an amended declaration counting upon temporary injury to crops, pasture, timber and the use of the land is not filed until two years after the original declaration was filed, and does not charge that the injury occurred within five years before the filing of the amended declaration but that it occurred within five years immediately preceding the beginning of the suit,, a formal plea of the Statute of Limitations alleging that the action did not accrue within five years next before the date of the filing of the amended declaration is proper, and all injuries occurring prior to five years before the filing of the amended declaration are barred. (Vette v. Sanitary District, 260 Ill. 432, distinguished.)</p> <p>4. Sanitary districts—when damage to land is permanent. If the natural and probable consequence of the opening of the channel of the Sanitary District of Chicago is that lands will always be overflowed at certain times in the future that can be ascertained with reasonable certainty, then the injury to such lands is permanent, notwithstanding they may be used a portion of each year for agricultural purposes, and in such case an action for damages due to the opening of the channel must be brought within five years from the date of such opening; but damages which may result from some enlarged operation of the channel at a future time need not be anticipated, as an action for such damages will lie when they are occasioned.</p> <p>5. Same—damages caused by enlarged operation of the channel may be recovered though damages due to its opening are barred. Damages sustained by land within five years before the beginning of a suit against the Sanitary District of Chicago by reason of the enlarged operation of the' channel of the district within such .five years over what was authorized when the channel was opened are recoverable, even though the damages for the permanent injury due to the opening of the channel and its then authorized operation may be barred by the Statute of Limitations.</p> <p>6. Same—damage to entire tract of land constitutes single cause of action. Where a part of a farm is damaged by the opening of a drainage channel the damage to the entire tract constitutes a single cause of action; but this does not prevent the recovery of additional damages caused subsequently by increasing the flow of water over the flow originally authorized, even though the original cause of action is barred.</p> <p>7. Real property—zvhat is a cropping agreement and not a lease. An agreement whereby the use of land is granted by the owner to another person for cropping purposes during the cropping season, only, and which confers a right to plant, cultivate and harvest a crop during said cropping season and by which the parties retain joint possession and control of the land during said cropping season, is not a lease but a cropping agreement, and the parties are joint owners of the crops according to their respective interests as fixed by the agreement.</p> <p>8. Attorneys' fees—zvhen notice under Sanitary District act is sufficient. Under the Sanitary District act a notice which states the amount of damages claimed, the cause of the damages and that the plaintiff intends to bring suit therefor, authorizes the recovery of attorney’s fees based upon the damages sustained at the time the notice was served, but the attorney’s fees cannot be increased by injuries occurring between the service of notice and the beginning of the suit.</p>

<p>1. Taxes—meeting to determine road tax rate is essential. The meeting of highway commissioners provided for in section 50 of the Roads and Bridges act of 1913 to fix the road tax rate is essential to the validity of the tax.</p> <p>2. Same—record of meetings of highway commissioners must be kept. In view of the various provisions of the Roads and Bridges act of 1913, particularly section 121, it is the duty of the town clerk to keep a record of the meetings of highway commissioners, notwithstanding the act in question omits the express provision of the former law requiring the clerk to keep a record of all the official acts and proceedings of the board in a well bound book provided for such purpose; and such being the case, the action of the commissioners can be shown only by the record.'</p>

<p>1. Taxes—amount needed to pay judgments must be included in the $I.so rate for corporate purposes. Section i of article 8 of the Cities and Villages act fixes the limitation of $1.20 on each $ioo of taxable property for all taxes levied by a city in any one year, exclusive of the amount levied for bonded indebtedness and interest thereon; and this does not authorize the exclusion of the amount necessary to pay judgments not rendered for bonded indebtedness or interest thereon, notwithstanding the provision of the Revenue act for scaling taxes.</p> <p>2. Same—amounts required for other purposes must be reduced, if necessary, to pay judgments. If the amount required by a city in any one year, including the amount needed to pay judgments not for bonded indebtedness or interest thereon, exceeds what will be produced by the rate of $1.20 on each $100 of taxable property, exclusive of bonded indebtedness and interest, the provision of the Revenue act that no reduction of any tax levy shall diminish the amount levied pursuant to any mandate or judgment of the court, requires that the amounts required for other purposes shall be reduced accordingly.</p> <p>3. Same—the tax for mothers’ pension fund is not exclusive of limitation for county taxes. The tax for mothers’ pension fund is a tax for ordinary county purposes, which, though it is not subject to the scaling process, must be considered when taxes for other county purposes are being scaled to make the rate of forty cents, and it is improper to add the rate per cent for the mothers’ pension fund to the rate of forty cents.</p> <p>4. Same—county clerk may add rate to pay bonds and interest to the rate of forty cents. After the taxes for county purposes have been reduced to the rate of forty cents a rate to pay bonds and interest may be added, since a county may levy a tax to pay bonded indebtedness in addition to other county taxes, when it can do so within the constitutional and statutory limitation.</p> <p>5. Same—when addition by clerk of an amount to cover loss and cost of collection is authorised. The county clerk, in extending a tax for the payment of bonds, may add a reasonable sum for loss and cost of collection of that tax, even though the county board has appropriated a reasonable sum for loss and cost of collection of general taxes.</p> <p>6. Same—right of the clerk to raise fractions to whole numbers. Under section 128 of the Revenue act, authorizing the clerk to extend a fraction of a cent as a whole cent, the clerk may raise fractions or decimals to whole numbers in the aggregate tax of each taxing body, but he is not authorized to raise fractions to whole numbers as to each separate item in the levy of a taxing body. -</p> <p>7. Same—statute requires record to be kept of essential steps in levying taxes. The statute requires that a record be kept of the essential steps in levying a tax, and they cannot be left to the uncertain memories of clerks or officers.</p> <p>8. Same—what does not invalidate park tax. Where a park lies in two towns, the fact that the park tax is not uniform in the two towns does not invalidate the tax in its entirety, nor to any extent if the tax is equitably distributed so as to maintain a fair balance between the two towns.</p> <p>9. Same—penalties should not be added to taxes the treasurer refuses to accept. If a tax-payer objects to certain taxes as being illegal but concedes that other taxes are valid and offers to pay the same but the treasurer refuses to accept the money, it is error to charge the penalty of one per cent after the first day of May on the taxes which the tax-payer endeavored to pay.</p>

<p>1. Taxes—when a clerical error in objection to taxes will not render objection invalid. Naming the month of April instead of the month of August in an objection shown by its language to be based on the ground that the commissioners of highways did not hold a meeting between the first Tuesday in August and the first Tuesday in September, as required by statute, is a clerical error and will not render the objection invalid.</p> <p>2. Same—the statute requires two meetings of commissioners of highways. Section 50 of the Roads and Bridges act of 1913 requires a meeting of the highway commissioners to determine the rate per cent of the road and bridge tax, and section 56 requires another meeting to ascertain and certify the amount of the tax. (People v. Cincinnati, Indianapolis and Western Railway Co. 213 Ill. 503, distinguished.)</p> <p>3. Same—when certificate of amount of road and bridge tax is sufficient. Section 56 of the Roads and Bridges act requires that the commissioners shall certify the amount necessary to be raised by taxation for road and bridge purposes, and such certificate need not state when or how that amount was ascertained.</p> <p>4. Same—when objection must be to record of the commissioners and not to the certificate. One objecting to taxes is limited in his evidence to the objection filed, and where an objection is merely to the certificate of the highway commissioners for the road and bridge tax it cannot be argued, in support of such objection, that the record of the commissioners does not show that the amount to be levied was ascertained at the meeting of the commissioners.</p>

<p>1. Taxes—what objections cannot be raised on application for judgment and order of sale for special assessment. On application for judgment and order of sale for a special sidewalk assessment levied under the Local Improvement act, no objections can be urged which might have been urged on the hearing to confirm the assessment roll except such as go to the jurisdiction of the court to enter the judgment of confirmation, which must appear upon the face of the record.</p> <p>2. Same—what does not go to jurisdiction of court to confirm assessment roll. The mere fact that some of the lots assessed for a sidewalk improvement to be constructed by special assessment under the Local Improvement act do not abut upon the streets shown by the ordinance as the ones to be improved but are assessed as much as lots on streets to be improved does not deprive the county court of jurisdiction to enter, judgment confirming the assessment roll.</p> <p>3. Same—when judgments confirming assessment and approving report of improvement board are conclusive. A judgment confirming a special sidewalk assessment and a judgment approving the improvement board’s final certificate of the completion of the work are conclusive, until reversed, of the questions that lots have not been assessed more than they are benefited nor more than their proportionate share of the cost of the improvement, where the record shows that the court had jurisdiction and the property owners had notice of each proceeding and appeared and filed objections and participated in the hearings.</p>

<p>Appeal from the County Court of Whiteside county; the Hon. William A. Blodgett, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>1. Taxes—president of board of highway commissioners need not name and record time for meeting to fix rate. It is not necessary that the president of the board of highway commissioners shall name at some previous meeting the time for the meeting provided for in section 50 of the Roads and Bridges act of 1913 to fix the rate of road and bridge taxes nor that his action in naming the time of the meeting shall be made a matter of record.</p> <p>2. Same—record need not show organisation of meeting to fix amount of tax. If the record shows a meeting on the first Tuesday in September, at which the highway commissioners met, and, all concurring, determined on the amounts to be levied for road and bridge purposes and "ditching to drain roads, that is all that the law requires, and it is not necessary that the record show the organization of the meeting.</p> <p>3. Same—what is a sufficient record of highway commissioners. A record of a meeting of the highway commissioners on the first Tuesday in September, which, after a statement of the accounts audited and allowed by the board of auditors, contains the record of a certificate of highway commissioners showing that a certain amount has been determined upon by them as required for road and bridge purposes and a certain amount for ditching to drain roads, is a sufficient record of the action of the commissioners in fixing the amount required for roads and bridges.</p> <p>4. Same—a judgment for road taxes should not be against the objector personally. A judgment for delinquent road and bridge taxes shoyld not be against the objecting railroad company but should be several against the property of the company in the respective towns in which the taxes are due, substantially in the form prescribed by section 191 of the Revenue act.</p>

<p>1. Building lines—force of building line restriction does not depend upon whether it is a covenant running with the land. The force of a building line restriction does not depend upon the question whether it is a covenant running with the land, but rests upon the ground that one who purchases with notice of the agreement will not be permitted to make use of his land in a manner inconsistent therewith.</p> <p>2. Same—general rule as to enforcement of building line restriction. The right to enforce a building line restriction established as part of a general plan is based, not upon the agreement made by the subsequent purchaser, but upon the theory that each purchaser buying a lot with notice of the general plan impliedly assents thereto and can be compelled to comply therewith at the suit of the owner of any other lot, without reference to the order in which the lots were sold.</p> <p>3. Same—when purchaser will be bound by building restriction. One who takes title to a lot with notice, actual or constructive, of a binding agreement between his grantor and the original owner of the lot establishing a building restriction will be bound to abide by it, and a court of equity will enforce it even though his deed does not contain the restriction.</p> <p>4. Same—effect where original owner, re-purchases and conveys without restriction. Where all the lots in a block fronting on a certain street are conveyed by deeds, each of which contains the same building line restriction, the fact that the original owner repurchases some of the lots and conveys them without restriction does not relieve the purchaser or his assigns from the binding force of the restriction, where the restriction .is shown in the record of the original deeds and on the abstract of title.</p> <p>5. Same—effect upon a building line restriction of change in character of neighborhood. Before a court of equity will refuse to enforce a general building line restriction upon the ground that there has been a change in the character of the neighborhood, there must have been such change in the character and condition of the adjoining property as to render the restriction inapplicable according to the intent and spirit of the contract.</p>

<p>1. Taxes—certificate of highzvay commissioners need not state that meeting zvas held. Section 56 of the Roads and Bridges act of 1913 requires that the highway commissioners shall certify the amount necessary to be raised by taxation for road and bridge purposes, but it does not require the certificate to state that a meeting was held to determine the amount, nor any other action preliminary to the ascertainment of the amount.</p> <p>2. Same—what record of action of highway commissioners is sufficient. A record of a certificate of the commissioners of highways of their determination of the amount to be levied for road and bridge purposes is a sufficient record of the action of the commissioners though it does not show the organization of a meeting or the determination of the amount by a formal resolution. (People v. Cincinnati, Lafayette and Chicago Railroad Co. ante, p. 516, followed.)</p> <p>3. Same—when leave to amend the record is properly denied. Leave to amend the record of highway commissioners is properly denied on application for judgment and order of sale, where there is no offer to prove any fact or what was done by the highway commissioners, but only to show that a levy of the amount named in the certificates was made by the highway commissioners, which is a conclusion of law.</p>

<p>. 1. Schools—when territory of township high school district is compact and contiguous. Territory of a township high school district organized under section 6 of the Township High School law of 1911 is sufficiently contiguous and compact under the law if it lies in one body, even though it is not in the form of a square, circle or quadrilateral and its boundaries consist of broken lines, embracing nearly sixty-seven sections, its greatest length being ten miles and its greatest width nine and one-half miles.</p> <p>2. Same—word of false description may be rejected. Where it is apparent from the petition to organize a township high school district that the presence of the word “section” in the expression “quarter section” used in one of the calls of the description, makes it impossible to carry out the remainder of the call, but that by rejecting the word “section” the remainder of the call can be carried out and the description of the whole territory be made harmonious, the word “section” may be rejected as a word of false description.</p> <p>3. Same—when call of description is not uncertain. In the description of territory of a proposed high school district a call for a line from a point at the south line of section 14 in Talkington township, “thence west along the south line of sections 14, 15 and 16 in Talkington township to the center line between sections 16 and 21 in said Talkington township, thence south to the center of section 28, in said township,” is not uncertain.</p> <p>4. Same—a school township having one thousand inhabitants is not, per se, a high school district. A school township having within its borders one thousand and not exceeding one hundred thousand inhabitants may organize into a high school district under section 1 of the Township High School act of 1911, but if it has not so organized, the statute does not prevent a part of the territory of the school township being included in a district organized under section 6 of said act out of compact and contiguous territory. (People v. Painter, 267 Ill. 473, explained.)</p>

<p>1. Taxes—certificate of amount of road tax need not show any preliminary action. The certificate of the highway commissioners ' of the amount of road and bridge tax need only show the amount necessary to be raised, and it is not necfessary to show any preliminary action by the commissioners.</p> <p>2. Same—a judgment should be rendered separately for taxes due in each township. Where the delinquent list filed by the collector correctly describes the defendant railroad company’s railroad track and right of way in the county it is proper to enter a separate judgment for the road and bridge tax of each town against the railroad track and right of way in each town, notwithstanding such separate judgments will necessarily not follow the description in the delinquent list.</p> <p>3. Same—when certificate of amount of road tax must be filed. Section 56 of the Roads and Bridges act of 1913 is complied with if the meeting of the highway commissioners is held at the time fixed by the statute, the amount necessary to be raised by taxation is then determined and certified to the board of supervisors, and the certificate is made and filed with the county clerk in time for pre- • séntation to the board of supervisors at their September meeting.</p>

<p>1. Criminal law—when jury are sufficiently advised as to law of self-defense. In a murder trial the jury are sufficiently advised .of the law of self-defense where the court, in connection with an instruction containing sections 148 and 149 of division 1 of the Criminal Code, gave an instruction stating that men threatened with danger are obliged to judge from appearances, and that the defendant would be justified in the homicide if the circumstances were such that a reasonable person would have reasonable ground to believe he was in danger of losing his life or suffering great bodily injury.</p> <p>2. Same—when a motion for new trial is properly denied. A motion for a new trial on the ground of newly discovered evidence, consisting of the testimony of two witnesses as to threats made by the deceased against the defendant and that the deceased had a loaded revolver when he was talking to one witness, is properly denied, where the defendant testified on the trial as to the threats by the deceased and it is beyond question that the deceased had no revolver at the time of the homicide.</p> <p>3. Same—defendant -should ask for a continuance if attendance of witness cannot be secured for the trial. Where a subpoena has been served on a witness for the defendant but the attendance of the witness at the trial cannot be procured, the defendant should ask for a continuance instead of waiting until after judgment and then moving for a new trial to enable him to have the testimony of such witness.</p>

<p>1. Practice—the original practice concerning a writ of error. Originally a writ of error was directed to the judge or judges of a court of record and was served by lodging it with the clerk of the court to which it was directed, and the return to the writ was certified by the judge or chief justice of that court and consisted of the record duly certified, the original writ being also returned.</p> <p>2. Same—modern practice concerning writ of error. In Illinois a writ of error is directed to the clerk of the lower court instead of the judges, and the judges do not certify to the return, which consists of a transcript of the record of the lower court.</p> <p>3. Same—rule where a certified transcript is filed before writ of error issties. Where a duly certified transcript of the record of the lower court is filed in the office of the clerk of the Supreme Court before the writ of error issues, it is not necessary to send such writ to the clerk of the lower court, as the transcript is taken and considered as a due return to the writ and the writ does not leave the possession of the clerk of the Supreme Court; and a failure of such clerk to issue the writ of error and file it with the record is not ground for dismissing the proceeding.</p> <p>4. Same—Statute of Limitations to writ of error should be set up by plea. If the defendants in error desire to avail themselves of the Statute of Limitations the proper way is to plead the statute, so that the plaintiffs in error may allege any exception which exempts them from the operation thereof.</p> <p>5. Same—what is not a plea to jurisdiction. An alleged plea to the jurisdiction, filed by certain defendants to a writ of error, which merely questions the validity of the service by publication, which publication was made in accordance with the statute upon an affidavit in statutory form, is no more than a motion to quash the service, and if the parties do not deny that they received the notices mailed to them the Supreme Court will not inquire into the truth of the affidavit for publication but the alleged plea will be stricken from the files.</p> <p>6. Same—severance cannot be had before parties are in court. A severance cannot be had before the plaintiffs in error who have failed to assign error have been served with summons and brought into court, nor until such time can any rule be entered upon the defendants in error to join in error.</p>

<p>1. Real property—deed and bond for deed do not constitute a common law mortgage. While an absolute deed, together with a bond for deed given at the same time by the grantee to the grantor, obligating the grantee to re-convey the premises to the grantor upon performance of the conditions of the bond, will, under certain circumstances, be deemed a mortgage for the purpose of permitting redemption by the grantor, yet the deed and bond for deed do not constitute a common law mortgage nor does the legal title remain in the grantor.</p> <p>2. Same—effect of assignment and delivery of a bond for deed given by loan association. Where a building and loan association takes a deed to premises and delivers a bond for deed to the grantor, conditioned upon his making the payments specified by the bond, the legal title to the land is in the building and loan association and the equitable title is in the grantee, who may transfer the same to his wife by assignment and delivery of the bond even though the assignment is not under seal, and in case of his death the wife may demand a deed upon performance of the conditions of the bond.</p>

<p>1. Wills—certificate of testimony of subscribing witnesses authorises admission of will in evidence. In a proceeding to contest a will, if the certificate of the testimony of the subscribing witnesses at the probate of the will is in compliance with section 2 of the Wills act its introduction in evidence prima facie establishes the competency of the testator and the execution of the will and entitles the will to admission in evidence, even though the prima facie case may be overcome.</p> <p>2. Same—when contestant is not rendered competent to testify generally in her own behalf. The fact that one of the contestants, who is a daughter of the testator, is called as a witness by the proponents and asked questions as to who constituted her father’s family, what children he left surviving, what property, he owned at his death and who farmed his land, does not qualify her to testify generally in her own behalf nor justify cross-examination’as'to the condition of the testator’s mind.</p> <p>3. Same—right of jury to sustain will and find against codicil. In a proceeding to contest a will, and a codicil thereto executed some four years after the will was made, the jury have a right to sustain the original will and reject the codicil, if they believe, from the evidence, that the testator was of sound mind when the original will was executed but was of unsound mind when the codicil was executed.</p> <p>4. Same—when instruction does not state different rules as to mental capacity. An instruction which tells the jury that' the testator could dispose of his property by will as he saw fit if at the time he executed the will he had sufficient mind and memory to know, understand and appreciate the objects of his bounty, the manner in which he wished to dispose of his property by will and the nature and amount of his property, and that if he was of sound mind and memory at the time of executing the codicil he had a right to change the will, thereby does not state different rules, as to mental capacity, for the will and the codicil.</p> <p>5. Same—when an instruction does not make sanity the test of testamentary capacity. An instruction stating that “to justify a finding of insanity in the making of a will the evidence must preponderate in favor of unsoundness of mind, and the presumption of sanity must prevail if the evidence is only sufficient to raise a doubt of such sanity,” does not make sanity the test of testamentary capacity, where other instructions fully explain to the jury the meaning of the expressions “soundness of mind” and “unsoundness of mind,” and tell the jury that testamentary incapacity does not necessarily require a person to be technically insane.</p>

<p>1. Registration oe Titee—when abstract of title is admissible. An abstract of title signed by the recorder of Cook county is admissible in evidence where a witness testifies that he is an abstract maker and has been in the employ of the recorder of Cook county for eleven years as an abstract maker and was in such employ on the date of the certificate to the abstract; that the recorder was then the person whose name is signed to the abstract; that the signature was in the handwriting of a deputy recorder, and that the abstract was made on an order given and was made in the regular course of business by the abstracter of Cook county, the acting recorder.</p> <p>2. Same—what does not show that applicant' took forcible possession of premises. Where an application to register title alleges that the premises were vacant and a witness testifies they were vacant on the day the application was filed, the fact that the witness testifies that he was ordered to tear down an old house on the premises and that he sold it for $50 and that it was torn down, does not show that the applicant, or anybody else, took forcible possession of the premises.</p>

<p>1. Civil service—the State Civil Service Commission exercises purely statutory powers. The State Civil Service Commission exercises purely statutory powers and must find in the statute its warrant for the exercise of any authority it claims.</p> <p>2. Same—State commission cannot require person in classified service to take examination. The State Civil Service Commission has no power to require a person already in the classified service to appear and take an examination by the commission, whether such person became a member of the classified service through an entrance examination or by the express terms of the statute declaring persons holding places of employment when the act took effect to be members of classified service without original examination.</p> <p>3. Same—the State commission cannot discharge employee in classified service except upon written charges. The provisions of the Civil Service act with reference to the duties of the State Civil Service Commission to investigate and report as to the efficienc)' of employees in the classified service do not authorize the commission to discharge an employee in the classified service except upon written charges, with an opportunity to appear and defend, and it is without power to discharge such an employee for failing to appear and take an examination before the commission to determine her fitness to retain her position.</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.</p>

<p>1. Drainage—effect where farm drainage district changes to a levee district. Where a farm drainage district elects to change to a levee district under section 65 of the Levee act, all future work must be in accordance with the provisions of the Levee act, including the provisions of section 37 relating to repair work.</p> <p>2. Same—report of probable aggregate amount of benefits is merely advisory. The report of the probable aggregate amount of benefits, required by the Levee act, is a preliminary report and is merely advisory to the court and not conclusive as to the amount which may be raised by assessment.</p> <p>3. Same—special assessment cannot exceed benefits to land assessed. A special assessment must be spread so that no land will be burdened with more than its proportionate cost of the improvement, and in no case may the assessment exceed the benefits to be derived from the proposed improvement.</p> <p>4. Same—when permitting expert witnesses to testify to benefits is error. In a proceeding under the Levee act before a jury it is error to permit expert witnesses to testify that the district, as a whole, will be benefited as much or more than the entire assessment, as such testimony is misleading and has no tendency to aid the jury in determining the benefits as to thé individual pieces of property assessed.</p> <p>5. Same—section ifb of Levee act construed. The provision of section ijb of the Levee act reading, “which verdict when so completed shall produce the total sum of the estimated cost of the proposed work,” etc., cannot be construed to require the property of the district to be assessed the total amount of the estimated cost, regardless of the amount of benefits to the individual pieces of property, but only when the benefits to individual pieces of property assessed, taken together, equal the total estimated cost.</p> <p>6. Same—when form of verdict is misleading. In a proceeding for a special assessment under section 37 of the Levee act, the court, in giving the form of verdict, should not fill in the total amount of the estimated cost of the improvement as the amount which ought to be assessed against all the property of the district, but should leave that matter blank.</p> <p>7. Same—allowing engineer to accompany jury over the district is error. It is error to allow the engineer who has made the plans and estimates of the proposed drainage improvement to accompany the jury on its inspection tour of the district, where the property owners object to such action.</p> <p>8. Same—claim that assessment includes large emergency fund should be made in county court. A claim that the assessment for drainage work includes a large sum for an emergency fund over and above the estimated cost of the work, court expenses and engineer’s fees should be made in the county court and cannot be raised for the first time in the Supreme Court.</p> <p>9. Same—general appearance waives alleged insufficiency of the notice of hearing. Land owners who appear generally and participate in the hearing on the assessment roll, without any specific objection to the sufficiency of the notice of the hearing; waive the objection and submit themselves to the jurisdiction of the court.</p>

<p>Writ oE Error to the County Court of DuPage county; the Hon. S. L. Rathje, Judge, presiding.</p>

<p>1. Taxes—when the amount of a road and bridge tax paid in labor cannot be set off against subsequent tax. The amount paid in labor to satisfy a road and bridge tax levied under the law as it existed prior to its repeal by the Road and Bridge law of 1913 cannot be set off against a road and bridge tax levied under the new law.</p> <p>2. Same—when district road tax cannot be levied as a tax on land. A district road tax assessed under the law as it existed prior to its repeal by the Road and Bridge law of 1913 cannot be levied by the board of supervisors as a tax against land after the taking effect of the new law of 1913.</p> <p>3. Same—certificate of amount of road tax must be made on the first Tuesday of September. The provision of the statute that the certificate of the amount required for road and bridge purposes shall be made on the first Tuesday in September is mandatory, and the action of the commissioners and the time such action was taken must be shown by the .record.</p> <p>4. Schools—when board of education cannot pttrchase a school site. Before the board of education has power, under .the second proviso to clause 5 of section 127 of the School law, to select a site for a school house in case no site receives a majority of the votes cast at the election, the question of purchasing a site must have been submitted to the voters and have received a majority of the votes cast at the election. (Thompson v. School Trustees, 218 Ill. 540, distinguished.)</p>

<p>1. Taxes—highway commissioners must hold both meetings required by the statute. Failure of the highway commissioners to hold both of the meetings provided for in sections 50 and 56 of the Roads and Bridges act of 1913 renders the road and bridge tax invalid.</p> <p>2. Same—what shows compliance with section 50 of the Roads and Bridges act. Section 50 of the Roads and Bridges act is complied with if the record of the highway commissioners shows that the commissioners met at any time between the first Tuesday in August and the first Tuesday in September and determined the tax rate for construction, maintenance and repair of roads and bridges.</p> <p>3. Same—what is not required by section 50 of the Roads and Bridges act. Section 50 of the Roads and Bridges act does not require that the president of the board of highway commissioners shall name the day of the meeting therein provided for at any given time or place prior to such meeting, or that the record of the board shall show that the president had designated the time of such meeting.</p> <p>4. Same—determination of amovtnt of taxes at August meeting is not sufficient. The determination by highway commissioners, at the meeting required by section 50 of the Roads and Bridges act, of the amount required for road and bridge purposes is not a determination of the rate as required by such section.</p> <p>5. Same—commissioners are not required to certify the rate of taxation. Section 56 of the Roads and Bridges act, requiring the highway commissioners to certify the amount required for road and bridge purposes, does not require that the commissioners shall certify the rate of taxation or state when they held their meetings.</p>

<p>1. Taxes—a judgment for road tax should not be against all property of railroad in the county. A judgment against the property of a railroad for road and bridge taxes should be limited to that portion of the property located in the town and not against all of the property of the railroad in the county as described in the collector’s delinquent list.</p> <p>2. Same—what is sufficient showing of the approval of road tax certificate. Where the evidence shows that the certificate of the commissioners of highways of the amount required for road and bridge purposes- in the town of “Hawthorne” was presented by the county clerk to the county board for consideration, a statement in the record of the board showing that on motion “it was ordered that the following amounts from the different townships be extended for road and bridge taxes for the year 1914: 'Hawthorne $4196.37,” is a sufficient approval of such certificate.</p>

<p>1. Special assessments—it is essential that the land assessed be sufficiently described. It is essential to the validity of a special assessment that the land assessed be so described that it can be located by a competent surveyor, otherwise a judgment against the land is a nullity.</p> <p>2. Same—what is meant by a description of land is a question for the court. What is meant by a description of land is to be determined by the court from a construction of the language used, while actual location of the property is a question for the surveyor.</p> <p>3. Same—when description of land assessed is insufficient. A description of land specially assessed for a sewer as “that part N. of C., B. & Q. R. R. in S. W. *4 S. 28, T. 39, R. 13,” is too ambiguoiis to support a judgment, where the name of the owner is given</p> <p>' as “C., B. & Q. R. R. Co.,” showing it was intended to assess property of the railroad company and not property of some other owner north of the railroad.</p> <p>4. Real property—general rule where land is described by a monument. Generally, where land is described by a monument, such as a highway or river, the description goes to the center of the monument unless a contrary intention is manifested from the grant.</p>

<p>1. Constitutional law—the legislature may provide a special method of reviewing a purely statutory proceeding. There is.a marked distinction between the power of the legislature to enact laws providing a method for reviewing judgments in suits at law and the power to provide for the review of a purely statutory proceeding, as in the latter case the legislature may provide a special method of review .or may provide that there shall be no review.</p> <p>2. Same—when statute must govern same as though writ was issued thereunder. In determining whether the circuit' court' was right in refusing to grant an appeal to the Appellate Court from the decision of the circuit court on a writ of certiorari to review the record of the Industrial Board, clause (f) of section 19 of the Workmen’s Compensation act as amended in 1915 must govern, if valid, notwithstanding the amendment went into effect after the writ of certiorari was issued but before the circuit court rendered its decision, as there can be no vested right in any particular remedy or special mode of administering it.</p> <p>3. Same—the legislature may say whether an appeal in a purely statutory proceeding shall lie to the Supreme or Appellate Court. The legislature has power to specify, by law, whether an appeal in a purely statutory proceeding shall lie to the Appellate Court or the Supreme Court, provided no constitutional provision is thereby violated.</p> <p>4. Same—provision of the Workmen’s Compensation act for reviewing a decision is valid. Clause (f) of section 19 of the Workmen’s Compensation act, as amended in 1915, (Laws of 1915, p. 410,) which provides for the issuing of a writ of certiorari by the circuit court to review a decision of the Industrial Board and for a writ of error, in certain cases, from the Supreme Court to the circuit court, is not, in violation of section 29 of article 6 of the constitution, concerning the uniformity of laws relating to courts and the practice in courts of the same class or grade, as the entire proceeding under the Compensation act is purely statutory.</p> <p>5. Certiorari-—writ of certiorari provided for in Workmen’s Compensation act is not the common law writ. The writ of certiorari provided for in clause (/) of section 19 of the Workmen’s Compensation act of 1915 is not the common law writ of certiorari but is a statutory writ, and the right of a party to a review of the judgment of the circuit court thereon is not governed by the general laws concerning appeals from judgments of the circuit court in suits at law or by laws concerning writs of certiorari in other . special statutory proceedings, but is governed by the provisions of the Workmen’s Compensation act, alone.</p>

<p>. 1. Deeds—in Illinois a deed to take effect at the grantor’s death may be valid. In Illinois a deed may be made which contains a provision that it is not to take effect until the grantor’s death, and if such deed is delivered in the grantor’s lifetime it will be sustained as a present grant of a 'future estate, since the delivery changes the effect of the instrument, which might, but for delivery, be of a testamentary character.</p> <p>2. Same—delivered deed cannot be revoked by making a neio one. Where a deed has been duly executed, delivered and recorded •it passes beyond the grantor’s control, and he is without power to destroy its effect by executing a new deed declaring the former one void.</p> <p>3. Equity—when bill need not allege possession or vacancy of premises. Where a bill to set aside a deed charges that the deed was obtained through fraud a court of equity has jurisdiction on the ground of fraud and will ’retain it to do justice between the parties by removing the deed as a cloud on title, even though the - bill does not allege that the complainant is in possession of the premises or that they are vacant and unoccupied.</p>

<p>1. Constitutional law—constitution limits the amount which members of the legislature may receive in addition to salary. Section 21 of article 4 of the constitution expressly prohibits members of the legislature from receiving, in addition to the salary fixed by law, any “other allowance or emolument, directly or indirectly, for any purpose whatever, except the sum of $50 per session to each member, which shall be in full for postage, stationery, newspapers and all other incidental expenses and perquisites.”</p> <p>2. Same— act of 1915, for payment of mileage to members of the legislature, is invalid. The act of 1915, appropriating money in accordance with House Joint Resolution No. 29, allowing to each member of the legislature actual mileage for twenty-one round trips from his home to the State capital at the rate of two cents a mile, is in violation of the provisions of section 21 of article 4 of the constitution expressly limiting the allowance to members for incidental expenses and prohibiting members from increasing their compensation during their terms of office.</p>

<p>Taxes—county board cannot levy taxes by percentages. Except as to the tax for a mothers’ pension fund, which the statute commands the county board to levy at the rate of three cents on each $100 of taxable property, the county board, in levying taxes for county purposes, must specify separately in the certificate the amount levied for each purpose, and it is not sufficient merely to specify the rate per cent.</p>

<p>1. Taxes—record of meeting of highway commissioners may be amended to show the facts. The record of the meeting of highway commissioners for the 'purpose of fixing the rate of taxes for road and bridge purposes may, upon sufficient proof, be amended to show the facts.</p> <p>2. Same—it is not necessary that time of meeting be named by president and a record of it made. The Roads and Bridges act of 1913 does not require that the time of the meeting of the highway commissioners to fix the road and bridge tax rate shall be desig-. nated by the president at a previous meeting of the board and a record of it made.</p> <p>3. Same—what need not be stated in certificate of levy. The certificate of the amount required for road and bridge purposes need not state why it is necessary to levy the particular amount specified nor specify the particular purpose of the levy, except that it is for road and bridge purposes.</p> <p>4. Same—certificate of levy may be amended to show year for which tax is levied. The certificate of the amount required for road and bridge taxes may be amended, on application for judgment and order of sale, so as to show the year for which the tax is levied.</p> <p>5. Same—road tax extended at a higher rate than that fixed is illegal as to excess. Road and bridge taxes extended against the property of an objector at a higher rate than was fixed at the meeting of the highway commissioners is illegal as to the excess. ■</p>

<p>1. Res judicata—judgment in ejectment is conclusive. Under section 34 of the Ejectment act a judgment in ejectment is conclusive against the person against whom it is rendered or those claiming under or through him.</p> <p>2. COURTS'—when court is withoiit jurisdiction to enter order restoring possession. An order purporting to restore possession of land to a defendant against whom a judgment in ejectment had been entered more than two years before is made without jurisdiction, where the record does not show that any new trial was granted or that.an appeal was prosecuted from the judgment.</p> <p>3. Solicitors’ fees—when it is error to tax solicitor’s fees as costs. Where a cross-bill filed in a partition suit is not for partition but is in the nature of. a bill of review and to remove cloud from title, the court is not authorized, when decreeing relief on the cross-bill, to tax the cross-complainants’ solicitor’s fees as costs against the complainants in the original bill.</p> <p>4. Fraud—when sale to pay debts is void. A sale to pay debts, and the deeds based upon such sale, are void, where the evidence shows that a fraud was practiced upon the probate court, that the deceased never had any title to the land, and. that the heirs of the real, owner, though they must have been known., had no notice of the proceeding, being made defendants in the name of “Foster” whereas the records showed the name to be “Forster.”</p>

<p>1. Appeals and errors—when former appeal does not prevent raising question on the second appeal. An appeal by a city from a judgment refusing confirmation of a special assessment, which judgment is reversed on the appeal and the cause remanded generally, does not prevent the property owners, on appeal from a subsequent judgment confirming the assessment, from presenting the question, properly raised by objections below, whether the city had power to include interest on the improvement bonds in a supplemental ordinance for the assessment.</p> <p>2. Same—effect where judgment is reversed and the cause remanded generally. Where a judgment refusing confirmation of a special assessment is reversed and the cause is remanded generally, the cause stands for hearing in the county court the same as though no appeal had been taken except in regard to the questions determined by the appeal.</p> <p>3. Special assessments—court may permit filing additional objections on remandment. Where a judgment refusing confirmation of a special assessment is reversed and the cause is remanded generally, the county court may, in its discretion, allow amendment of the objections filed or may permit the filing of additional objections, and its discretion, unless it has been abused, will not be reviewed on appeal. „</p> <p>4. Same—city cannot include interest on improvement bonds in a supplemental ordinance. A city, by supplemental ordinance passed under sections 57 and 58 of the Local Improvement act, has no power to include in the assessment, in addition to the cost of the improvement, a. further sum for interest upon improvement bonds issued to anticipate the collection of deferred installments of the original assessment.</p>