Volume 274 — Illinois Reports

<p>1. Constitutional law-—law should, if possible, be given such construction as will render it constitutional. Where the constitutionality of a statute is questioned it is the duty of the courts to adopt such a construction as will render the act valid, if the language' used will permit, rather than give it a construction which will render it invalid.</p> <p>2. Same—Workmen’s Compensation act of ipxy is not compulsory. The Workmen’s Compensation act of 1913, when properly construed, is elective and not compulsory as respects employers who have had a reasonable time to give notice of their intention not to be bound by the law, and is not, as to them, invalid.</p> <p>3. Workmen’s compensation—act of ipiy construed as to giving notice of intention not to be bound thereby. Under the Workmen’s Compensation act of 1913, employers who have elected to be bound thereby are bound until they give notice of an intention to withdraw, which they must give at least sixty days before each first day of January after the law took effect; but while employers not giving notice of their intention to come under the act are bound thereby until they give notice of a contrary intention, yet they have a right to give such notice at any time after the act took effect up to sixty days before the succeeding first day of January, after which time their notice of withdrawal is governed by the same rule as applies to notices of those who have elected to be bound by the act.</p> <p>4. Same—alien dependents are included within the act of 1913. Alien dependents of an employee are within the meaning of the Workmen’s Compensation act of 1913 even though the title of the act is “An act to promote the general welfare of the people of the State,” etc., as section 5 of the act, which defines “employee,” includes aliens.</p> <p>5. Same—sufficiency of evidence to sustain decision of Industrial Board as to the facts is not for the courts. If there is any competent evidence to support the decision of the Industrial Board on questions of fact the decision must be accepted as final in the absence of fraud, as the question of the sufficiency of the evidence is not for the courts.</p> <p>6. Same—looks and records must le competent and properly authenticated. The arbitration committee in a workmen’s compensation case may hear witnesses and inspect books and records, but the books and records must be competent and properly authenticated, and the evidence received must be incorporated into the record of the proceeding as required by the act.</p> <p>7. Same—decision founded solely on hearsay or other improper evidence cannot stand. A decision of the arbitration committee and the Industrial Board which is founded solely on hearsay or other improper evidence cannot stand when the record of the proceeding is brought to the circuit court on a writ of certiorari.</p> <p>8. Same—plaintiff need not prove that deceased- employee was not a casual employee. Considering the purpose of the Workmen’s Compensation act of 1913 and its provisions with reference to the parties agreeing to the facts in the case, it is the duty of the employer, if he desires to raise the defense that the injured person was a casual employee, only, to allege and prove that fact on the hearing, and he cannot remain silent and take advantage of an absence of proof on the subject by the plaintiff.</p> <p>9. Same—verdict of coroner’s jury is admissible in compensation proceeding. The verdict of the coroner’s jury at the inquest on the body of a deceased employee is admissible in evidence in a proceeding under the Workmen’s Compensation act of 1913.</p>

<p>1. Freehold—when freehold is not involved. A freehold is not involved on appeal in an action of trespass for cutting down hedge trees between the adjoining lands of the parties, even though a plea of liberum tenementum is filed and replied to, where no evidence is offered under such issue, the only defense made on the trial being a license to cut the trees, and where no proposition of law concerning the ownership of the freehold is held or refused and there is no assignment of error involving such ownership.</p> <p>2. Same—when question of location of boundary line does not involve a freehold. In an action of trespass for cutting down osage orange hedge trees, the question whether the hedge was the boundary line or where the boundary line was does not involve a freehold, where the question was presented in thg form of a proposition of law containing an hypothesis of fact which it was stated would make the hedge fence a boundary line.</p>

Writ oe Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.

<p>1. Public utilities—when order of commission and compliance therewith do not constitute a contract. The fact that three railroad companies have for more than twenty years complied with an order entered by the Railroad and Warehouse Commission, without the consent or agreement of the companies, requiring them to install and maintain an interlocking plant and requiring each company to pay one-third of the cost of the construction, maintenance and operation, does not make the order and acceptance a contract which will bind the State Public Utilities Commission to fix the same proportion of cost when ordering the installation of a new interlocking system.</p> <p>2. Same—Public Utilities Commission has power to set aside orders of Railroad and Warehouse Commission. While the State Public Utilities Commission has only such powers as are derived from the statute, yet it has power, under sections 50 and 67 of the Public Utilities act, when authorized by the circumstances, to order new structures to be erected and fix the proportion of the cost to be borne by the utilities affected, and may, after notice and a hearing, amend or rescind former orders affecting public utilities, including orders of the Railroad and Warehouse Commission.</p> <p>3. Same—commission cannot change conditions fixed by legislature. The legislature by the Crossings act of 1889, as amended in 1907, has conclusively determined what company shall bear the expense of installing any interlocking device or other safety appliance and the cost of the maintenance thereof, and the State Public Utilities Commission has no power to change the condition fixed by the legislature.</p> <p>4. Same—when one railroad must bear the entire expense of crossing under act of 1889. In case one railroad desires to cross another where there is no interlocking device and the crossing necessitates an interlocking system the act of 1889 applies, and the expense of constructing and maintaining the interlocking system must be borne by the company applying for the right to cross; but where there is already an interlocking plant which must be enlarged for the accommodation of the new crossing, the statute is satisfied by requiring the company obtaining the crossing to bear the additional expense occasioned by its coming into the interlocking device.</p> <p>5. Same—what order for distribution of cost of construction and maintenance will be reasonable. Where a new interlocking plant must be constructed for the use of three steam railroads and an electric railway, (which latter has not acquired crossing rights,) it is reasonable to charge the electric company one-fourth of the cost of construction and maintenance and divide the other three-fourths of such cost among the three railroad companies on the unit basis,—that is, in the proportion which the number of interlocking units required for each company’s tracks bears to the total number of units,—and to divide the cost of operation equally among the four companies. q</p> <p>6. Same—when an electric company does not acquire crossing rights. An electric company cannot acquire crossing rights by disobeying the orders of the Railroad and Warehouse Commission with reference to the crossing, and by continuing to use, with the sufferance of the railroads crossed, a temporary grade crossing authorized by the commission.</p>

<p>Writ oe Error to the Circuit Court of Cook county ; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Special assessments—what does not determine the question whether improvement is local. Whether an improvement is local or not is a question of law for the court, to be determined from the nature and object of the improvement, and is not to be determined from the action of a city official in spreading the assessment.</p> <p>2. Same—what improvement is local. The widening of a street for a distance of some eight hundred feet, from thirty-three to sixty-six feet, the condemnation of the necessary private property and the putting of the surface of the street in condition for public travel constitute a local improvement, even though the assessment is spread over a large district and but a small amount is assessed against property near the improvement.</p> <p>3. Same—what is not a valid objection to assessment of benefits. The fact that an ordinance for widening an existing street provides that the street, after widening, shall be put in condition for public travel by the commissioner of public works, the expense to be paid out of the general fund of the city, without making any reference to any grade for such work or providing for letting the work to the lowest bidder, furnishes no valid objection to the assessment of benefits for the portion of the improvement which is to be paid for by special assessment.</p> <p>4. Same—what does not affect validity of engineer’s estimate. The fact that the engineer’s estimate of the amount of court costs, which is not to be paid out of the special assessment fund, is very much smaller than the amount of actual costs allowed by the court, constitutes no objection to the validity of the estimate.</p> <p>5. Same—what does not amount to provision for two methods of payment. The fact that the expense of widening a street is to be paid by special assessment, whereas, after widening, the street is to be put in condition for public travel at the expense of the general fund of the city, does not amount to a provision for two methods of payment. (Ktiehner v. City of Freeport, 143 Ill. 92, distinguished.)</p> <p>6. Same—effect of section 23 of Local Improvement act. Section 23 of the Local Improvement act, relating to improvements where private property is to be taken, which provides that the report of the officer “shall be prima facie evidence, both of the amount of compensation to be awarded and of the benefits to be assessed,” merely relieves the city from assuming the burden of proof in the first instance, and neither that section nor section 49 of the act authorizes a verdict for the amount of benefits assessed, where the objector’s witnesses testify that there will be no benefits and the witnesses for the city merely testify that there will be some benefits but make no attempt to estimate the amount.</p>

<p>Writ oe Error to the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.</p>

<p>1. Registration oe titee-—what is'sufficient proof that the lots were unoccupied. Testimony of a witness in a proceeding to register title, to the effect that he had paid the taxes on the lots for ten years and was familiar with their location and condition, and that on the day the application was filed the lots were vacant and without improvements,—just bare ground,—is sufficient, in the absence of rebutting testimony, to show the lots were unoccupied when the application was filed, even though he testifies, on cross-examination, that he did not see the lots on the day the application was filed.</p> <p>2. Same—when a defendant cannot complain that the publication proceedings were defective. In a proceeding to register title, where the proof is unquestioned that the applicant has a fee simple title good as against the world, a defendant duly served with process and appearing in the case cannot complain, on appeal, that the publication proceedings as to the unknown defendants were fatally defective.</p> <p>3. Same—objections raised for the first time on appeal cannot be considered. Objections in a proceeding to register title which were not made before the examiner or raised in the lower court but are urged for the first time on appeal cannot be considered.</p>

<p>Original petition for mandamus.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.</p>

<p>Drainage—what does not justify annexation of land under section $8 of the Levee act. Lands which are naturally dominant to the lands of a drainage district cannot be annexed to the district, under section 58 of the Levee act, where the owner has done nothing since the organization of the district to connect the lands with its ditches or drains, and where the evidence fails to show that the lands are benefited, within the meaning of the statute.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>1. Survival or actions—effect where one joint defendant to action for injury to person dies pending suit. If one of two joint defendants in an action for damages for injury to the person dies after the suit is begun, the pending action, under section 11 of the Abatement act, is preserved against the surviving defendant but not against the personal representative of the deceased defendant, even though the separate liability of the deceased defendant might be enforced against his personal representatives in a separate suit.</p> <p>2. Pleading—when plea in abatement is not double. A plea in abatement by an executrix claiming her privilege not to be sued out of the county where she resides is not double because it negatives the application of section 25 of the Abatement act, authorizing service of summons to any county in the State where an action survives against a personal representative, by alleging facts showing that the pending action, to which she had been made a party defendant after her testator’s death, did not survive.</p>

<p>1. Practice—Practice act now governs removal of cases from Appellate Court to Supreme Court. The entire subject of the removal of cases from the Appellate Court to the Supreme Court is now governed by section 121 of the Practice act, and any provisions of the Appellate Court act inconsistent with said section 121 are repealed thereby.</p> <p>2. Same—-on certificate of importance there must be an appeal and not a writ of error. Under section 121 of the Practice act, as amended in 1909, cases in which the Appellate Court grants a certificate of importance may be removed to the Supreme Court by appeal, only, and not by writ of error.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>Appual from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding.</p>

<p>Writ OB Error to the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. Easements—way by necessity not limited to cases where the grantor’s land entirely surrounds the parcel conveyed. Where the owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a-way by necessity exists over the remaining lands of the grantor. (Kuhlman v. Hecht, 77 Ill. 570, overruled.)</p> <p>2. Same—what not sufficient to establish a way by prescription. Proof of the use of land as a way for the requisite period, even though such use was apparent and with notice, is not sufficient to establish a way by prescription, where it is not shown whether the use was permissive or was under claim of right.</p>

<p>1. Wills—when remainder to children of life tenant is contingent. A devise of land to the testator’s son for life, and after his death the land to go to and descend to his children, if any survive him, or in the event of his death before the taking effect of the will then to his child or children surviving, or their descendants, creatés a contingent remainder in the children of the life tenant.</p> <p>2. Same—when words “die without issue” mean without children surviving. Whether the words “die without issue” shall be Construed to mean without having had issue or without children surviving must be determined from a reading of the entire will, and in the absence of anything to the contrary they will be construed to mean without children surviving, where the devise of the remainder to the brothers and sisters of the life tenant in case he dies without issue follows a devise of the remainder to the children of the life tenant who may survive him, and in such case both remainders are contingent.</p> <p>3. Real property—when contingent remainders are destroyed. Where the owner of a life estate with contingent remainders to his children if any survive him, and to his brothers and sisters if he shall die leaving no children surviving, conveys the land to a third party, and the life estate so conveyed passes by conveyance or inheritance to the children of the purchaser, the execution to such children of deeds to the reversion by the heirs of the testator merges the life estate and the reversion and the contingent remainders are destroyed.</p>

<p>Original petition for mandamus.</p>

<p>1. Service—what necessary to constitute one an agent for service of process. To constitute one an agent of a corporation for the purpose of service of process under section 8 of the Practice act, he must have been appointed by the corporation and must represent it in some line of employment authorized by its charter.</p> <p>2. Same-—when ticket agent of one corporation is not agent of another. A ticket agent employed by an interurban railroad company and authorized to sell through tickets from any point on its line to any point on the line of an independent' connecting interurban company is not the agent of the latter company for the service of process, though the two companies, with others, comprise what is known as the “Illinois Traction System,” which is not a corporation but a mere trade name.</p>

<p>1. Municipal corporations—power of city to pass ordinance to carry 'prohibitory ordinances into effect. The power of á city to prevent the selling or giving away of intoxicating liquors is not limited merely to the passage 'of an ordinance forbidding the sale, but the council is expressly authorized to pass any reasonable ordinance to render the prohibitory ordinances effective which does not unreasonably impair property rights, or invade the constitutional and statutory rights of individuals.</p> <p>2. Same—the Local Option law does not prohibit the possession and use of intoxicating liquor. The Local Option law is directed against the selling of intoxicating liquor in anti-saloon territory and does not prohibit the ownership, possession and use of such liquor, nor does it confer power upon cities, towns or villages to pass ordinances which prohibit such lawful use and possession.</p> <p>3. Same—city has no power to prevent a common carrier from bringing liquor into city. A city which is anti-saloon territory has not been given the power to prohibit, by ordinance, the bringing of intoxicating liquor into the city by a common carrier without reference to the use for which the liquor is intended.</p>

<p>1. Counties—county board must determine number of assistant State’s attorneys and their salary. A special State’s attorney, whose order of appointment gives him the same authority as a regularly elected State’s attorney to appoint assistants, has no power to bind the county by appointing assistant special State’s attorneys, as it is the province of the board of county commissioners or board of supervisors, as the case may be, and not that of the State’s attorney, to determine the number of assistant State’s attorneys and to fix their compensation.</p> <p>2. Same—claim against cotmty must be verified by affidavit of claimant or his agent. Under the statute the board of county commissioners of Cook county is authorized to examine and settle all accounts, but before any claim against the county is audited and allowed it must be verified by affidavit of the claimant or his agent.</p> <p>3. Mandamus—when mandamus will not lie against a county. Mandamus will not lie against a county to compel the payment of claims for the pay of assistant special State’s attorneys, clerks, stenographers and investigators and the miscellaneous expenses attending the investigation in which such persons were engaged, where such claims have neither been audited by the county board nor reduced to judgment against the county.</p> <p>4. Sams—mandamus will not lie to collect a claim not ascertained to be due. Mandamus will not lie against a municipal corporation to enforce payment of a claim unless the claim has been ascertained to be due by a judgment, by the action of the municipal authorities in auditing and allowing the claim, or by the imposition of a charge, by law, which does not require any action by the municipal authorities.</p>

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

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

<p>Appeal from the Circuit Court of Wabash county; the Hon. J. C. Eagleton, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of White county; the Hon. J. C. FaglETOn, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the Second District;—heard in that court on appeal from the Cirduit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.

Writ of Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit-Court of Hamilton county; the Hon. Jacob R. Creighton, Judge, presiding.

<p>Appeal from the County Court of Logan county; the Hon. Charles J. Gehlbach; Judge, presiding.</p>

<p>1. Criminal law—party may be convicted of receiving stolen property though he advised the theft. One indicted for receiving stolen property may be convicted on such charge even though the proof shows that he persuaded another person to steal, the property and deliver it to him.</p> <p>2. Same—what fact does not prechide conviction for receiving stolen property. Where two persons are indicted, jointly, for receiving stolen property, both may be convicted though the proof shows that the person who stole the goods delivered the same in a suit-case to one of the defendants and then went with him to a place where they met the other defendant and turned the suit-case containing the stolen goods over to him.</p> <p>3. Same—when naming witness in instruction is not error. An instruction upon the subject of conviction upon the testimony of an accomplice is not rendered erroneous in naming the accomplice, where she was the only accomplice who testified in the case.</p>

<p>1. Practice—exception to ruling on demurrer is unnecessary. It was never necessary to save an exception to the ruling of the court on a demurrer in order to have the ruling reviewed, as exceptions were only required as to matters which became a part of the record by bill of exceptions, only.</p> <p>, 2. Same—extent to which pleading over, after demurrer, is a waiver. Error in overruling a demurrer to a petition for mandamus is waived by answering the petition, but the waiver does not extend to innate and substantial defects which would render the petition insufficient to sustain the judgment, and the question of the sufficiency of the petition to sustain the judgment may be reviewed on appeal or writ of error.</p> <p>3. Mandamus—proceeding for writ of mandamus is an action at law. A proceeding for a writ of mandamus is an action at law) governed by the same rules of pleading as other actions at law in which the defendant may plead or answer, as he elects, and if he concludes to plead he may file pleas setting up distinct defenses, and thejelator may demur to any or all of the pleas, in which case the court will rule on the various pleas and determine as to each whether it separately states a good defense.</p> <p>4. Same—anszuer to a petition for mandamus must be sufficient as a whole. If the defendant elects to answer a petition for mandamus the defense set up by the answer must be sufficient as a whole, as the practice is not the same at law as in chancery, where exceptions may be sustained to improper parts of the answer and such parts be eliminated, leaving the remainder to stand.</p> <p>5. Same—organisation of school district cannot be questioned in mandamus proceeding to compel levy of tax. In a proceeding for a writ of mandamus by a board of education of a high school district to compel the county clerk to extend a tax the organization of the high school district cannot be questioned.</p> <p>6. Same—the county clerk cannot determine which of two high school districts is legally organised. In the matter of extending a tax for the board of education of a high school district the county clerk has a right to ascertain whether there is a de facto high school district corresponding to the one in question, but he cannot refuse to extend the tax on the ground that there are two high school districts in the same territory and that the district asking for the extension of the tax is not, in his judgment, legally organized.</p> <p>7. Same—what need not be alleged in mandamus petition. A petition for mandamus by a board of education of a high school district to compel the county clerk to. extend a tax need not allege under what act the high school district was organized, and the petition is sufficient if everything necessary to create the duty which the relators ask to have performed is either expressly averred or is fairly implied from express allegations.</p> <p>8. Pleading—vahen a demurrer cannot be carried back. A demurrer to the answer to a petition for mandamus cannot be carried back to the petition where the defendant has already demurred to the petition and his demurrer has been overruled.</p>

<p>Writ oe Error to the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Pleading—after judgment, pleading is liberally construed. The rule that pleadings will be construed most strongly against the pleader is reversed after judgment, and the pleading upon which the judgment is based will be liberally construed in order to sustain the judgment.</p> <p>2. Same—a copy of note sued on is part of statement of claim. A copy of one of several notes sued upon must be considered as a part of the statement of claim in the municipal court, where there is nothing else in the statement of claim giving any information as to the cause of action.</p> <p>3. Corporations—notes of a foreign corporation are not invalid because it has not complied with Illinois laws. Notes of a foreign corporation payable at a bank in Illinois are. not invalid even though the corporation has not complied with the laws authorizing it to transact business in Illinois, as such laws are not intended to prevent a foreign corporation from purchasing goods or supplies in Illinois and executing its notes or obligations for the indebtedness.</p> <p>4. Same—what is not engaging in business in this State. Entering into one contract or transacting an isolated business act is not engaging in business in this State.</p>

<p>Appear from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.</p>

<p>Appeal from the Branch “C” Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Third District;—heard in that court on appeal from the. Circuit Court of Ford county; the Hon. Colostin D. Myers, Judge, presiding.

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

<p>1. Dedication—when city will be deemed to have accepted all streets in subdivision. If the evidence shows that a city has, by reason of improvements made and othpr facts and circumstances, accepted the principal streets, and the major portion of them, shown on a common law plat, and has never evidenced any intention to refuse to accept any of them, it will be deemed to have accepted all the streets and alleys shown on the plat.</p> <p>2. Same—acceptance of common law dedication at any time before withdrawal is binding. Public authorities are not required to immediately formally accept or improve streets shown on a common law plat, particularly where the owner grades the streets and builds sidewalks at his own expense when the subdivision is laid out, and any acts by the public authorities sufficient to show an acceptance before the offered dedication is withdrawn by a deed of revocation is binding upon the owner of the subdivision.</p> <p>3. Same—what acts by a city shozv acceptance of streets. Acts by a city consisting of laying sewers in certain of the streets shown on a common law plat, with wing-sewers at the intersections of certain of .the other streets, passing an ordinance changing the name of one of the streets and an ordinance vacating a portion of another, evidence an acceptance by the city of the streets and alleys shown on the plat.</p>

Writ of Error to the Appellate Court for' the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.

Writ of Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.

<p>1. Inheritance Tax—when section 25 of Inheritance Tax act applies. Where a testatrix leaves her estate to her executors in trust for a period of twenty years, with directions to pay the income to her brother and her sisters for that period, with provisions in case one or more shall die, and a provision that if all shall die before the termination of the trust period then all the income they would have received shall be paid to a certain nephew of the testatrix, section 25 of the Inheritance Tax act applies, and the nephew is chargeable with a tax upon the assumption that the death of all three of the prior beneficiaries will occur immediately.</p> <p>2. Same—section 25 of Inheritance Tax act is not unconstitutional. Section 25 of the Inheritance Tax act, which provides that when property is transferred or limited, in trust or otherwise, and the rights, interests or estates of the transferees or beneficiaries are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest .rate which on the happening of any of the contingencies or conditions would be possible under the provisions of the act, is not unconstitutional.</p>

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

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

<p>Appeal from the County Court of Cook county; the Hon. S. N. Hoover, Judge, presiding. '</p>

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

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

<p>1. Contracts—subsequent rise in value of property not ground for refusing to enforce contract of sale. A material rise in value of acre property soon after a contract for its sale was made, due to a demand for residence lots following an improvement of transportation facilities between the property and the business district of the city, is not ground for setting aside the contract or refusing to enforce it on the cross-bill of the proposed purchaser, where the contract price was a fair one at the time the contract was made.</p> <p>2. Same—what does not show want of mental capacity. Failure of the vendor in a contract of sale to anticipate a large increase in the value of his land which arose soon after contracting for its sale does not show want of mental capacity, even though the vendor had been insane when a young man and was thereafter subject to spells of despondency, during one of which, about a week after making the contract, he committed suicide, where the price he obtained for his land, which he had used for a truck farm, was $3300 per acre, which at the time was the best offer he had received and was a fair price.</p> <p>3. Same—what does not show abandonment of the contract. Where the owner of land dies about a week after making a contract for its sale and before the contract is carried out, the fact that the attorney for the proposed purchasers and the attorney for the widow and minor children of the deceased owner talk over various ways of carrying out the contract and discuss the matter of a guardian’s sale does not show abandonment of the contract.</p> <p>4. Same—when proposed purchasers cannot be said to be in default. Proposed purchasers in a contract for the sale of land, made only a week before the proposed vendor’s death, cannot be said to be in default before the appointment of an administrator for the deceased’s estate, even though they did not make the payments at the time specified in the contract, where they were at all times ready and willing to carry out the contract but were delayed because of the fact that the deceased left minor heirs, and that the attorneys for both parties were undecided as to how to proceed to carry out the contract, which the widow and heirs then professed to be willing to stand by.</p>

<p>1. Workmen’s compensation—there must be some competent evidence that injury arose in course of employment. In case of the death of an employee claimed to have been due to an injury, the burden is upon his administratrix, in a proceeding for an award of compensation, to show, by direct or circumstantial evidence, that the death of the employee was caused' by an accidental injury arising out of and in the course of his employment, and if there is no competent evidence fairly tending to show that fact the judgment of the circuit court quashing the record of the Industrial Board must be affirmed.</p> <p>2. Same—declarations of injured person as to cause of injury are incompetent. Declarations by an injured person to his attending physician are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms and the like, but not if they relate to the cause of the injury; and this rule is- even more rigorously enforced as applied to lay witnesses.</p> <p>3. Same—what does not tend to show that injury was received in course of employment. Where the death of a, railroad employee resulted from an operation for strangulated hernia, proof that the work in which the employee was engaged was such as to cause him to undergo a severe physical strain does not tend to show that the hernia was occasioned while he was engaged in the duties of his employment.</p> <p>Farmer, J., dissenting.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Deeds—■where confidential relation exists the grantee must prove transaction fair. Where a confidential relation is shown to exist between the aged grantor in a voluntary conveyance and the grantee, her daughter, equity raises a presumption against the validity of the transaction and casts upon the grantee the burden of proving that the transaction was fair and reasonable.</p> <p>2. Trusts—when defense of Statute of Frauds need not be considered. Where the answer to a bill to establish a trust admits that the defendant received the property upon an agreement that she should turn over to the .complainant the rents and profits, less the running expenses of the property, the defense of the Statute of Frauds, set up in the same answer, need not be considered.</p> <p>3. Same—equity will not permit a grantee to repudiate obligation. Where an aged woman conveys substantially all of her property to her daughter, relying upon the daughter’s promise to pay her the net income of the property during her lifetime, a court of equity will require a scrupulous observance of the obligation by the grantee, and may, from the grantee’s refusal to perform, infer a fraudulent intent on her part in the first instance or a determination to abandon the contract, and will be justified in setting aside the conveyance if there is any abuse of the trust by the grantee.</p> <p>4. Same—when grantee is not entitled to reduce incumbrance from income. Where the right to the net income of property during her lifetime is the only reservation made by an aged grantor on conveying substantially all of her property to her daughter, the grantee has no right to use any part of the income to reduce the principal of incumbrances on the property.</p> <p>5. Appeals and errors—when appeal from part of decree operates as a severance. Where there are independent matters disposed of by a decree an appeal may be taken from that part dealing with a particular subject, and such appeal operates as a severance in the trial court from the parties and questions not concerned in the appeal; and if the remaining part of the decree is interlocutory, only, no appeal will lie therefrom.</p>

<p>Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding.</p>

<p>1. Trusts—the court may, under unusual circumstances, modify terms of trust in order to preserve it. A court of equity has power to do whatever is necessary to preserve from destruction a trust created by will, and may, under unusual circumstances, modify the terms of the trust in order to preserve but not to defeat or destroy it; but such power will not be exercised except when it clearly appears to be necessary.</p> <p>2. Same—a court of equity cannot destroy trust for the purpose of compromising suit. Where the beneficiaries of a trust created by will are all adults, a court of equity has no power to authorize the executors, against the objection of one beneficiary, to accept a proposition to settle a suit to contest the will and set aside certain deeds made by the testator, where the effect of such settlement will be to abrogate and destroy .the trust, even though all parties except the objector are willing to accept the proposed settlement and end the expensive and long continued litigation. (Williams v. Williams, 204 Ill. 44, distinguished.)</p> <p>3. Same—a trust cannot be destroyed solely because it will be beneficial to parties in interest to do so. A trust created by will cannot be destroyed by a court of chancery on the sole ground that in the judgment of the court such action will be beneficial to the parties in interest, all of whom are adults.</p>

Writ or 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. Samuel C. Stough, Judge, presiding.

<p>1. Municipal corporations—what amusements cannot be prohibited. A city has no power, nor can the legislature confer power upon it, to prohibit all amusements, but such power is confined to such amusements as come within the legitimate operation of the police power.</p> <p>2. Same—a city cannot prohibit free dancing in restaurants. A city has no power absolutely to prohibit the owner of a public restaurant or other public place of refreshment from allowing his patrons to dance while the place is open to the public for refreshments unless he shall charge a fee for admission or for the privilege of dancing and take out a dance hall license.</p> <p>3. Same—•when Chicago amusement ordinance does not apply. The Chicago ordinance dividing amusements into classes and requiring the taking out of a license does not apply to amusements where the public is not required to pay any fee or compensation in order to participate in the same.</p> <p>Dunn and Cartwright, JJ., dissenting.</p>

<p>Writ of Error to the Branch “B” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. HosEa W. WELLS, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.

<p>Writ oE Error to the Criminal Court of Cook county; the Hon. Robert E. Turney, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding.</p>

<p>1. Wills—court not required to disregard circumstances surrounding testator. While the intention to be ascertained is the one ' which the testator has expressed in his will, yet the court is not bound, in construing the instrument, to disregard the circumstances under which the will was made, but should endeavor to place itself, as nearly as possible, in the situation of the testator, in order to understand the language in the sense in which it was used.</p> <p>2. Same—when devise will be construed as passing a base or determinable fee. Where the testator gives a life estate to his wife in all of his real estate, (which was substantially all of his property,) gives a legacy of $1000 to each of his three daughters and devises the remainder of his property to his son, charging him with the duty of paying the legacies within five years, a subsequent provision that “in the event any of my children herein named should die without definite issue and before this will takes effect, then their respective share or shares given under this will shall at once accrue to my surviving children,” will be held to mean die without definite issue at any time and to give the son a base or determinable fee in the land, where to hold the contrary would give the estate to strangers in blood to the testator, (the son having died childless and devised his estate to his wife,) leaving the living children of the testator unprovided for, and where other parts of the will indicate that the testator meant the time of distribution when he referred to the taking effect of the will.</p>

<p>Writ or Error to the Criminal Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.</p>

<p>Original petition for habeas corpus.</p>

<p>1. Workmen’s compensation-—when the decision of the Industrial Board is conclusive. Paragraph (/) of section 19 of the Workmen’s Compensation act makes the decision of the Industrial Board, when it acts within its powers, in the absence of fraud, conclusive upon the courts, and the circuit court and the Supreme Court can review only questions of law.</p> <p>2. Same—what is a question of law as to evidence in proceeding under Workmen’s Compensation act. Whether legal evidence is offered to support the decision of the Industrial Board, where such evidence is properly preserved for review, is a question of law, but if there is in the record any legal evidence justifying the finding of the Industrial Board, even though this evidence is controverted, the courts cannot pass upon its weight or sufficiency.</p> <p>3. Same—hauling crushed stone for paving is included in clause j of paragraph (b) of section 3 of Compensation act. A teamster hauling crushed stone for a teaming company which is engaged by another company to haul the stone for paving work is employed in an extra-hazardous occupation under clause 3 of paragraph (6) of section 3 of the Workmen’s Compensation act, which specifies as an extra-hazardous occupation “carriage by land or water.” ( Uphoff v. Industrial Board, 271 Ill. 312, distinguished.)</p> <p>4. Same—meaning of section 31 of the Workmen’s Compensation act, regarding sub-contractors. Section 31 of the Workmen’s Compensátion act of 1913, regarding the liability of a principal contractor to the employee of a sub-contractor, makes two classes of such principal contractors liable as employers: one class consisting of those who do not require their sub-contractors to insure against such liability, and another class consisting of those who have entered into a fraudulent scheme or device to evade responsibility to the employee of the sub-contractor; and it cannot be maintained, under this section, that before any such principal contractor can be held liable he must not only fail to require the subcontractor to insure, but must also attempt, by fraud or trickery, to defeat recovery by the injured employee.</p> <p>5. Same—section 31 of Workmen’s Compensation act is not unconstitutional. Section 31 of the Workmen’s Compensation act of 1913 is not unconstitutional, as being an arbitrary classification of persons, on the alleged ground that it sets apart contractors from all other classes of persons and imposes a burden on them if they fail to require sub-contractors to insure, for in view of the public necessities and the end sought to be attained a substantial difference exists between the business of other people and the business in which contractors must be engaged to come within the provisions of the section.</p> <p>6. Same—what is sufficient notice of accident under section 24 of the Workmen’s Compensation act. Section 24 of the Workmen’s Compensation act, requiring that notice of an accident must be given the employer within thirty days, must be read in connection with section 31, and if the superintendent and foreman of a principal contractor have actual notice of an injury to an employee of the sub-contractor, the principal contractor is liable without formal written notice.</p> <p>7. Constitutional law—when a law is uniform and does not arbitrarily classify persons. The legislature may legally classify persons so long as the law making the classification is general and has some reasonable relation to the end sought, so that the difference between the classes is not a purely arbitrary one, and to be uniform the law need not apply to every person, provided all persons brought within the relation and circumstances provided for are affected alike.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding.</p>

<p>Appeal from thé Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Writ or Error to the Criminal Court of Cook county; the Hon. JESSE Holdom, Judge, presiding.</p>

<p>1. Statutes—what determines whether an act is amendatory. In determining whether an act is amendatory of an existing act it makes no difference whether it professes to be an amendment or not, but the character of the act is to be determined by an examination and comparison of its provisions with prior laws which are left in force, and although the act purports to be complete in itself, if it is merely an attempt to amend a law by intermingling new and different provisions with the old ones or by adding new provisions, creating out of the prior act and the new act a complete law, the act is amendatory.</p> <p>2. Schools—section 5 of the act of 1915, providing payment of high school tuition from State fimd, is unconstitutional. Section 5 of the act of 1915, (Laws of 1915, p. 631,) providing for the payment out of the State school fund, by the county superintendent, of tuition of pupils attending high schools outside of their districts, is an attempt to amend section 14 of the School law, concerning the distribution of the school fund, by adding a new provision, and violates section 13 of article 4 of the constitution, providing that no law shall be revived or amended by reference to its title, only, but the law revived or section amended must be inserted at length in the new act.</p> <p>3. Same—entire act of 1915, providing for payment of tuition in high schools, is void. Section 5 of the act of 1915, (Laws of 1915, p. 631,) providing for the payment of tuition for certain pupils in high schools out of the State fund, reaches and covers the entire purpose of the act, and is so connected in purpose and intent with the remainder that the unconstitutionality of such section renders the whole act void.</p> <p>4. Same—high school is a part of the system of free schools. Section 1 of article 8 of the constitution is a command to the General Assembly to provide a thorough and efficient system of free schools where all children of the State may receive a good common school education, and the high school is a part of the system of free schools.</p> <p>5. Same—establishing of district schools and high schools is a local and corporate purpose. In the execution of the duty enjoined by the constitution the General Assembly has charged separate school districts with the duty of maintaining the schools and raising money by taxation for their maintenance, so that establishing both district schools and high schools is made a local and corporate purpose.</p> <p>6. Same—section j of act of 1915, providing payment of high school tuition, violates section 1 of article 9 of the constitution. Section 5 of the act of 1915, providing for the payment of high school tuition out of the State school fund for the benefit of eighth grade graduates in districts where no high schools are maintained, requires the tax-payers in other districts where high schools are maintained to indirectly contribute to the tuition of such persons and thereby to contribute to the local and corporate purpose of furnishing an education to the children of the districts maintaining no high schools, and violates the fundamental principle of uniformity and equality in taxation required by section 1 of article 9 of the constitution.</p> <p>7. Same—act of 1915, providing payment of high school tuition from State fund, effects a release or commutation of taxes. The act of 1915, providing for the payment of high school tuition from the State school fund for the benefit of eighth grade graduates in districts not maintaining high schools, amounts to a return to such school districts of a part of their taxes levied for a State purpose, which effects a practical release or commutation of taxes and violates section 6 of article 9 of the constitution.</p> <p>8. Taxes—what is the essential meaning of a tax. The essential meaning of a tax is that it is a mode of raising revenue for the public needs for a public purpose pertaining to the district within which the tax is levied and collected.</p>

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

<p>Writ op Error to the. Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.</p>

<p>1. Tax deeds—effect of the act of ipop regarding holders of tax deeds who do not take possession within one year. The act of 1909, providing that where the holder of a tax deed does not attempt to take possession within one year from the date of his deed the owner of the property may make a tender of the amount paid out and expended by the holder and upon payment or tender of such amount the holder shall be compelled to re-convey the premises to the owner, does not affect the title of the holder, who, until the tender is made, may take possession of the property and thus prevent the operation of the statute, and even after tender is made and refused he still retains such title as he had until he is divested of it by order of the county court and by the making of a deed by the sheriff or a master in chancery.</p> <p>2. Same—when a tax deed does not constitute a cloud. "A- tax deed does not constitute a cloud where there is no flaw or defect in the deed, but is such a title as can only be divested by the conveyance provided for by the act of 1909, requiring the holder of the tax deed to take possession in one year or make a re-conveyance upon tender of the amount of money expended by him; and the act of 1909 provides the only means furnished the owner for having title re-vested in him, in the absence of any flaw or defect which will render the tax title void.</p>

<p>1. Statutes—when a statute will be held repealed by implication. While a repeal or amendment of a statute by implication is not favored, yet courts always endeavor to give effect to the true intent of the legislature, and if it is apparent that a repeal by implication was intended or is unavoidable then effect must be given to such repeal.</p> <p>2. Elections—the City Elections act of 1885 may be repealed or amended without a vote of the people adopting it. Although the City Elections act of 1883 does not become effective in any city in the State until it has been adopted by a vote of the people, yet when it does take effect it is the act of the legislature, and may be repealed or amended without requiring a vote of the people on such repeal or amendment.</p> <p>3. Same—the City Elections act of 1885 does not contain all the law on the subject of holding elections in cities adopting the act. The City Elections act of 1885 does not purport to contain all the law on the subject of the holding of elections in cities adopting the act, since the act itself expressly provides that all laws or parts of laws not inconsistent with its provisions shall continue in force, and hence many provisions of the general act are still applicable to elections in cities which have adopted the City Elections act.</p> <p>4. Same—legislature had power to fix compensation of jiidgcs and clerks of election in City Elections act of 1885. The legislature had the right to fix the compensation for judges and clerks of election in the City Elections act of 1885 for such cities as should adopt the act, and the provision for such compensation provided for in that act becomes effective and applies to such cities as adopt the act, until changed by law.</p> <p>5. Same—salary of judges and clerks of election fixed in City Elections act may be changed by special act or by amendment of general Elections act. The compensation of judges and clerks of election fixed in the City Elections act of 1885 .may be changed by an independent act of the legislature or by an amendment of the general Elections act of 1872, provided no constitutional provision is violated in making such amendment.</p> <p>6. Same—the amendment in 1915 °f the general Elections act repeals the provision of the City Elections act for salary of judges and clerks. The amendment in 1915 of section 63 of the general Elections act of 1872 was intended to apply to all judges and clerks of election in the State, whether elections are held under the said general act or under the City Elections act of 1885, and to give such amendment any force and to carry into effect the intention of the legislature it must be held that it repealed by implication those portions of the City Elections act which fixed the compensation of the judges and clerks.</p> <p>7. Constitutional law—1915 amendment of section dj of the general Elections act is not invalid. The 1915 amendment of section 63 of the general Elections act of 1872 is clearly within the title of that act, and said act, with the amendment, is complete in itself, and since the amendment operates as a repeal of a portion of the City Elections act by implication, only, it is not in violation of section 11 of article 4 of the constitution, requiring the subject of an act to be expressed in its title.</p>

<p>1. Municipal corporations—tax must be treated as a license fee when so stated in ordinance. Where the language of an ordinance designates the fee imposed upon a telegraph company for inspecting its poles and wires in the streets as a license fee, without further explanation, it must be treated as a license fee.</p> <p>2. Sam®—-city may regulate the location of telegraph poles and wires and impose restrictions. Under the Post-road act and the subsequent act of Congress making all public roads and highways post routes, the local municipal authorities are recognized as having control of such roads and streets and have the power to regulate and locate and re-locate the poles and wires of telegraph companies so that they will not interfere with ordinary travel, and while the city may not arbitrarily exclude such wires and poles, yet it may impose reasonable restrictions and regulations.</p> <p>3. Sam®—city may assess telegraph company to defray expense of inspection of poles and wires. Since the city authorities are required to inspect streets and highways within city limits and to keep them in a reasonably safe condition, a city may assess a reasonable charge on a telegraph company to defray the cost of the inspection of poles and wires even though the telegraph company may be engaged in inter-State commerce.</p> <p>4. Sam®—when a city may require a telegraph company having poles and wires in the streets to pay a license fee. A "municipality may require a telegraph company having poles and wires in the streets to pay a license fee not to exceed the probable expenses incident to the issuing of the license and for the supervision, regulation and inspection of the poles and wires of the company.</p> <p>5. Sam®—burden is on telegraph company to allege and prove that a license fee is excessive. An ordinance imposing a license fee on a telegraph company having its poles in the streets is presumed to be a valid ordinance, and the burden is upon the telegraph company to allege and prove its claim that the ordinance is unreasonable by reason of its providing for an excessive license fee, unless it is so grossly excessive that the court can pronounce it unreasonable as a matter of law.</p> <p>6. Same—discretion may be exercised by city as to amouñt to be charged as a license fee against telegraph company. The city authorities may exercise discretion in determining the amount to be charged a telegraph company as a license fee for defraying the expenses of inspection of poles and wires in the streets, and if the fee exceeds this expense by a sum not unreasonable the ordinance will not be held void because of the amount of the fee imposed.</p> <p>7. Same—what is not an excessive license fee for inspection of telegraph poles and wires. An annual fee of one dollar per pole imposed upon a telegraph company for defraying the expense of inspection by the city of poles and wires in the streets cannot be said to be unreasonably excessive in the absence of proof, where by the ordinance the several owners of the wires on the poles are jointly and severally liable for the fee on every pole, so that the total sum collectible annually from all the owners and users of the poles cannot exceed one dollar per pole.</p> <p>8. Same—when the court may refuse to admit evidence that a license fee charged telegraph company is excessive. The trial court may refuse to admit evidence tending to prove that a license fee charged a telegraph company for defraying expenses of inspecting poles and wires by the city is excessive where there is no plea to support the proof and where the answers of the most favorable witnesses, had the evidence been admitted, would not have proved the fee to be excessive.</p> <p>9. Same—a city cannot impose a tax on inter-State commerce of a telegraph company except for inspection of poles and wires. A city cannot impose a tax, by way of license or otherwise, on the inter-State commerce of a telegraph company except for the purpose of defraying the expense of inspection and regulation of the poles and wires in the streets.</p> <p>10. Same—when contention that ordinance imposing a license fee is void cannot be considered. The contention that an ordinance imposing a license fee upon a telegraph company for inspection of its poles and wires is void because the ordinance does not impose a like fee on telephone companies, and that it is therefore in violation of the provision of the Federal constitution which guarantees equal protection of the law, cannot be considered in the Supreme Court when it has not been suggested by the pleas nor by the proofs.</p>

<p>1. Evidence—section 2 of Evidence act does not apply to one who defends as grantee of his deceased father. One who defends as grantee in a deed made to him by his deceased father and not as heir or devisee cannot have the testimony of interested witnesses as to the incompetency of the deceased to make the deed excluded under section 2 of the Evidence act, where the witnesses were called by the administrator of the deceased in a suit to cancel the deed and sell the land to pay debts of the estate.</p> <p>2. Deeds—a grantor subject to delusions may make valid deed. A grantor may be subject to delusions, yet if they exert no influence upon him in making a deed the deed is not invalid because of such delusions.</p> <p>3. Same—weakness of mental faculties may not prevent making valid deed. The mental faculties of a person may be impaired by disease or old age and yet he may have sufficient mental capacity to make a will or a deed.</p> <p>4. Same—when deed will not be set aside for want of mental capacity. If the grantor in a deed has sufficient mental capacity to comprehend the nature of the transaction and the effect of his acts and can exercise his will with reference thereto the deed will not be set aside for want of mental capacity.</p> <p>5. Same—statements of grantor are not admissible to impeach title in a deed. Where a deed is executed and delivered it takes .effect and places the title beyond the control of the grantor, and his statements in disparagement of the title or in arraignment of the character or actions of the grantee after the deed is executed and delivered are not admissible to impeach it.</p>

<p>1. Eminent domain—zvhat requires accurate rulings of court and correct instructions to jury. In a condemnation proceeding, if the evidence is evenly balanced as to the value of the property taken, although there is- a view of the premises by the jury, there must be accurate rulings from the court and correct instructions to the jury.</p> <p>2. Same—copy of deed to show value of land is not admissible withotit proof of loss of original. A copy of a deed is not admissible in evidence to show the value of land taken in a condemnation proceeding until the statutory proof of loss of the original deed is made.</p> <p>3. Same—what deed is too remote to be admissible to show the value of land taken. A deed bearing date more than seven years prior to the institution of condemnation proceedings is too remote for 'the consideration expressed in it to have any legitimate bearing on the value of land sought to be taken for the opening of a street in the city of Chicago and is not admissible in evidence.</p> <p>4. Same—when ordinance restricting right of egress over sidewalks is admissible to show damage to land not taken in proceeding to open a street. In a condemnation proceeding for the opening of a street through property owned by a corporation, if the owner has filed a cross-petition claiming damages for land not taken it may introduce a city ordinance restricting the right of egress over sidewalks, which ordinance might, if a sidewalk were built along the proposed street, interrupt its use of a driveway which it has maintained on its property across the site of the proposed street, and the fact that such ordinance is a police regulation will not affect its right to introduce it.</p> <p>5. Same—when report of commissioners to estimate value of the land taken and amount of benefits has no weight as evidence. In a condemnation proceeding for the opening of a street, if the parties introduce evidence as to the value of the land taken and the damage to land not taken, the report of the commissioners designated to investigate and report to the court the just compensation to be made for land taken or damaged and the-amount of benefits has no weight- as evidence, and it is error to instruct the jury that it is prima facie evidence.</p> <p>6. Same—value of property to be taken cannot be depreciated by proceeding to condemn. Where a city seeks to condemn property for the opening of a street the owner of the property is entitled to have the jury value the strip of land to be taken as though it would always remain private property, and the city is not entitled to have the strip valued as for street purposes, only, if its fair value for other purposes is greater.</p> <p>7. Same—property must be valued at its best use> as shown by the evidence. In a proceeding to condemn land for a street the property to be taken must be valued at its highest and best use as shown by the evidence, even though the owner may not be putting the property to such use.</p> <p>8. Instructions—when instruction as to weight of testimony is erroneous. An instruction which states that the testimony of one credible witness is entitled to more weight than the testimony of many others if, as to the other witnesses, the jury have reason to believe, and do believe from all the evidence and facts, that such other witnesses have knowingly testified untruthfully and are not corroborated by other credible witnesses, is erroneous in omitting the element that the untrue testimony be upon a material matter and in not limiting the corroboration to other credible evidence.</p>

<p>Appeal from the Circuit Court of Lawrence county; the Hon. J. C. EaglETon, Judge, presiding.</p>

<p>1. Criminal law—vuhat argument by prosecuting attorney is prejudicial where evidence is conflicting. Where the evidence in a rape case is conflicting and the case rests mostly on the credibility of the prosecutrix, an argument by the prosecuting attorney that the municipal judge had held the defendant to the grand jury on the same testimony as was given on the trial tends to strengthen the evidence of the prosecutrix in the minds of the jury because 'the municipal judge had believed her, and such argument is prejudicial error notwithstanding the trial judge sustained objections and said the action of the municipal court judge made no difference and that the jury had heard the evidence.</p> <p>2. Same—the prosecuting attorney should not use unfair arguments. The prosecuting attorney goes beyond his duty when he seeks to secure a conviction by known unfair arguments, and a conviction procured by the use of them in a case where the evidence of guilt is not clear will not be permitted to stand.</p>

<p>1. Appeals and Errors—when Supreme Court will review case although the constitutional question has been determined. Where a cause is transferred to the Supreme Court by the Appellate Court on the ground that the validity of a statute is involved the Supreme Court will review the case, although, before the cause 'was transferred, it had held the statute valid on grounds other than those set up in the case at bar, and although, since the cause was transferred, the statute has been held not subject to the particular objections urged in the case at bar.</p> <p>2. Workmen’s compensation—Workmen’s Compensation act of ipn is not unconstitutional. The Workmen’s Compensation act of 1911 was passed in the manner provided by the constitution and its validity cannot be attacked on that ground.</p> <p>3. Same—what necessary to right of action under Factory act against a corporation under the Workmen’s Compensation act. To maintain an action against a corporation for injuries alleged to have resulted from a violation of the Factory act, if the parties are under the Workmen’s Compensation act of 1911 the injured. employee must allege and prove that the intentional omission to observe the provisions of the Factory act, which omission caused the injury, was that of an elective officer or officers of the corporation.</p> <p>4. Same—effect of declaring Compensation act of ipn invalid when pleaded as a defense. Where the employer sets up, by a special plea to a declaration in case based on a violation of the Factory act, that the parties are under the Workmen’s Compensation act of 1911, the trial court’s decision that such act is invalid takes from the employer the defense given by such act, and he is warranted in treating the decision as barring any evidence under the special plea.</p> <p>5. Pleading—what need not be alleged where defendant relies upon a statute. In an action on the case based upon an alleged violation of the Factory act, the defendant corporation may set up as a defense that it has elected to come under the Workmen’s Compensation act of 1911 without alleging that there was no intentional violation of the Factory act on the part of an elective officer of the corporation, since where a statute is relied on for a defense the party relying on it need not refer to or negative an exception or proviso unless it is contained in the enacting clause.</p> <p>6. Same—when violation of statute by elective officer of corporation may be alleged in replication. Where the defendant corporation, in an action based upon a violation of the Factory act, sets up in a special plea that it has elected to come under the Workmen’s Compensation act of 1911, the plaintiff may allege in his replication, without amending the declaration, that the injury was caused by an intentional omission of an elective officer of the corporation, although, under proper practice, such allegation should be made in the declaration, so as to narrow the pleadings to the declaration and the general issue.</p> <p>7. Same—trial court may hear evidence on demurrer to decide constitutionality of a statute. Where the defendant to an action on the case for personal injury sets up as a defense that it has elected to come under the Workmen’s Compensation act of 1911, and the plaintiff in his replication alleges that the act was not passed in the manner required by the constitution, it is proper, on demurrer to the replication, for the court to hear evidence bearing upon that question.</p> <p>8. Factories—what evidence is not admissible in an action under the Factory act. Where a violation of the Factory act in failing to cover certain exposed cog-wheels is relied on as the cause of the injury, evidence of the slippery condition of the floor where the injured employee was working is not admissible, as that was not an issue in the case.</p> <p>9. Same—when averment of due care is mere surplusage and should be expunged. In an action on the case for personal injury, based solely upon an alleged violation of the Factory act, contributory negligence is not a defense, and an averment of due care in the declaration is mere surplusage, which need not be proved; but the averment should be expunged from the declaration if an instruction is given referring the jury to the declaration for the purpose of determining what the allegations are. „</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Massac county; the Hon. Wieeiam N. ButrER, Judge, presiding.</p>

<p>1. Practice—proceeding begun before an amendment of statute, continues, after amendment, according to the new law. Under the provisions of section 4 of the act relating to the construction of statutes, a proceeding begun under the statute before its repeal, by amendment or otherwise, proceeds in matters of practice, after the repeal takes effect, according to the new law.</p> <p>2. Workmen’s compensation—a judgment should be in form provided by amendment of July 1, 1915, although proceeding is begun before. A judgment in the circuit court in a certiorari proceeding under the Workmen’s Compensation act begun before the amendment of July 1, 1915, should be in the form provided by the amendment when the judgment is entered after the amendment takes effect, and the court may, upon motion, set aside the judgment entered in accordance with the old law and enter another in conformity with the new law.</p> <p>3. Same—the notice of claim for compensation to be made six months after injury may be verbal. The Workmen’s Compensation act of 1913 does not require that the notice of claim for compensation within six months after the injury must be in writing, as is expressly required of the notice of claim for additional compensation after payments have ceased, and the Industrial Board is not without jurisdiction to consider a claim because of the failure to file a written claim until more than six months have elapsed, where a verbal notice is given within the required time.</p> <p>4. Same-—vuhen finding of fact by Industrial Board is conclusive. Where the Industrial Board specifically finds that the accident which resulted in the employee’s injury arose out of and in the course of the employment, such finding is conclusive if there is competent evidence tending to support it.</p> <p>5. Same—when an employee is within protection of act of 1913. An employer who operates a plant for the manufacture of ice and engages in the sale of ice, coal, coke and wood, and owns and uses several teams for the delivery of the same, is engaged in an extra-hazardous enterprise under the Workmen’s Compensation act of 1913, and a teamster employed to deliver ice and coal who is kicked by a horse while feeding a team in the barn where the horses are kept is within the protection of the act.</p> <p>6. Statutes—rule as to construction df statute adopted from another State. Where a statute is adopted from another State or from Great Britain it will be presumed that the legislature intended it to receive the construction given it by the courts of that State or country unless in conflict with the spirit and policy of this State.</p>

<p>1. Contracts—what is an express contract. A contract is express where the terms of the agreement are declared by the parties in writing or verbally at the time it is entered into.</p> <p>2. Same—what is an implied contract. A contract is implied where an agreement in fact is presumed from the acts of the parties; and this is the proper meaning of an implied contract.</p> <p>3. Same—difference betzveen an express and implied contract. The only difference between an express contract and an implied contract, in the proper sense, is, that in the former the parties arrive at an agreement by words, either verbal or written, while in the latter the agreement is arrived at by a consideration of their acts and conduct.</p> <p>4. Same—what are constructive contracts created by law. The term “implied contract” has been applied to a class of obligations which are created by law without regard to the assent of the'party upon whom the obligation is imposed, on the ground that they are dictated by reason and justice, and they are not contract obligation in the true sense, as there is no agreement of the parties.</p> <p>5. Same—example of a constructive contract created by law. A case of a constructive contract created by law is where one has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it but it belongs to another, and the right to recover it does not depend on any principle of contract but is governed by rules of equity, although the money may be recovered in an action in form ex contractu.</p> <p>6. Same—intention of parties is disregarded in a constructive contract created by law. The liability on a constructive contract or obligation created by law exists from an implication of law-arising from the facts and circumstances independent of an agreement, and the idea of a contract is purely fictitious, since there are none of the elements of a contract present and the intention of the parties is entirely disregarded.</p> <p>7. Same—difference between an express contract, implied contract and constructive contract created by law. The difference between an express contract and an implied contract is in the means of- proof, whether by words or by conduct, while in constructive contracts created by law the liability exists from an implication of law arising from facts and circumstances independent of intention, and such obligations are contracts merely in the sense that there is a remedy in assumpsit.</p> <p>8. Taxes—mere existence of duty to pay taxes does not raise implied promise to perform. The mere existence of the duty to pay taxes lawfully assessed is not different from any other duty owing to the government, the public or individuals, and the law does not imply a contract to do a thing merely because there is a duty to do it.</p> <p>9- Same—taxes are not debts, and there is no contract implied in law or in fact that they will be paid. Taxes being enforced contributions demanded by the sovereignty as burdens or charges on persons or property for public purposes, they are not debts, do not create the relation of debtor and creditor, or rest upon a contract, express or implied, in fact or in law, that the owner of the property will pay them.</p> <p>10. Same—remedy by suit for the collection of taxes may be implied. A remedy by suit for the collection of taxes may be given by statute, either directly or by implication, and if no specific remedy is directly given, the presumption that a remedy by suit is intended is reasonable.</p> <p>11. Same—fact that remedy is by suit for collection of taxes does not change tax obligation into a contract. The fact that a remedy is by suit for the collection of a tax does not change the nature of a tax and make that a contract, express or implied, which is not such in fact.</p> <p>12. Same—tax is not a contract obligation merely because statute allows its recovery in action of debt. Section 230 of the Revenue act provides that the county board may institute suit in an action of debt in the name of the People, in any court of competent jurisdiction, for the recovery of any personal property tax, but the provision that the suit may be in debt does not determine that the obligation arises out of a contract, either express or implied.</p> <p>13. Same—promise to pay need not be alleged in suit to collect taxes. Where a statute provides expressly that an action may be brought for the collection of taxes, and, impliedly, that such action shall be, in form, assumpsit, it is sufficient, in charging liability, to state the facts which create liability without alleging a promise to pay.</p> <p>14. Same—assumpsit may, by statute, be used for recovery of taxes. The action of assumpsit, which originally was invariably classed among actions on the case for tort and is still an action of trespass on the case on promises, may, by statute, be employed for the recovery of taxes without any implication of an implied contract to pay them.</p> <p>15. Same—municipal court has no jurisdiction of suit for taxes on ground of implied contract. A suit for taxes is not an action on a contract express or implied, and though the amount claimed exceeds $1000, the municipal court of Chicago cannot exercise jurisdiction under clause (a) of section 2 of the Municipal Court act.</p> <p>16. Actions and defenses—when an action of debt lies. The action of debt lies for the recovery of a sum certain, whether arising by contract or imposed by law, and lies for the recovery of any liability where the sum is certain or is capable of being readily reduced to a certainty.</p>