Volume 275 — Illinois Reports

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

<p>1. Married women—common law was in force as to married women’s property prior to the act of 1861. Prior to the Married Women’s act of 1861 the common law as to married women’s property was in force, and at common law money of the wife in her possession at the time of the marriage became the property of the husband, and also all choses in action reduced to possession after the marriage.</p> <p>2. Same—effect, at common law, of purchase of realty by husband with wife’s money. At common law, where the husband purchased and paid for land with money belonging to the wife at the time of marriage and took the title in his own name, the land belonged to the. husband and no trust resulted in favor of the wife.</p> <p>3. Same—when equity will recognize waiver of marital rights by husband. Equity will recognize a waiver or relinquishment by the husband of his marital rights, but the evidence must be of unequivocal acts showing an intention of the husband to relinquish his rights and create a separate estate for the wife.</p> <p>4. Same—what evidence not sufficient to prove waiver of marital rights by husband. Proof that land was bought in 1850 with the wife’s money and ■ that the husband so admitted will not support a claim that the husband waived or relinquished the right the common law gave him to the money and the right to invest it for his own uses and purposes.</p>

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

<p>Writ of Error to the Municipal Court of Chicago; the Hon. Samuel H. TrudE, Judge, presiding.</p>

<p>Appeal from the Circuit Court of DuPage county; the Hon. C. F. Irwin, Judge, presiding.</p>

<p>1. Wiias—rute as to the burden of proof of undue influence in gifts causa mortis does not apply to wills. The relation between a priest or spiritual adviser and a parishioner is a confidential one, which renders a gift causa mortis from the parishioner to the priest prima facie void, and the burden is upon the donee to prove the donor’s intention to make the gift originated with the donor without the donee’s influence; but this rule does not apply in the case of gifts by will.</p> <p>2. Same—what does not raise presumption of undue influence by beneficiary. Proof of the fact that the chief beneficiary in a will stood in a confidential relation to the testator at the time of the execution of the will does not, of itself, raise any presumption that he used undue influence.</p> <p>3. Same—question of undue influence is one for the fury. It is for the jury to say, under the issues submitted to them, whether the beneficiary influenced the testator by advising or suggesting or directing how the will should be made or coerced him into making the will, and the verdict will stand, on appeal, unless manifestly against the weight of evidence.</p> <p>4. Same—prior wills showing same provisions are admissible to rebut charge of undue influence. Prior wills containing'the same provisions and making the same disposition of the property as a later will are competent evidence to be considered to rebut the charge of undue influence to procure the execution of the later will. (Freund v. Becker, 235 Ill. 513, followed.)</p> <p>5. Same—when evidence of what was omitted in former will is admissible. Ordinarily, in a will contest case, it is not proper to give evidence of what was not contained in a former will, but tyhere the will is contested on the ground of undue influence, a witness with whom the former will was deposited for safe keeping, although he is unable to remember all the contents of such will, may testify that said will contained no provision in favor of the contestant, who was a brother and the nearest living relative of the testator at the time of his death.</p>

<p>1. Appeals and errors—Appellate Court opinion may be examined to ascertain reasons for judgment. While error cannot be assigned on the opinion of the Appellate Court, yet the opinion is part of the files of the case and is the source from which the Supreme Court is to determine the reasons for the judgment of the Appellate Court.</p> <p>2. Same—when decisions of the Inter-State Commerce Commission cannot be considered. Decisions of the Inter-State Commerce Commission which were not introduced in evidence in the lower court cannot be considered by the Supreme Court either as evidence or authority.</p> <p>3. Jurisdiction—when a State court has jurisdiction of a suit against inter-State carrier. A State court has jurisdiction of a suit by a shipper against an inter-State carrier to recover an alleged overcharge on a shipment billed as petroleum tailings, which the carrier, on inspection, pronounced fuel oil and charged for at the rate per hundred pounds fixed by the Inter-State Commerce Commission for fuel oil, where the only question is whether the shipment was actually petroleum tailings or fuel oil.</p>

<p>1. Special assessments—when judgment of the city council is conclusive as to whether improvement is necessary. The necessity, character and extent of an improvement are committed to the judgment of the city council, and its judgment is conclusive unless the court is clearly satisfied that its action has been oppressive and without reasonable grounds.</p> <p>2. Same—ordinance requiring two water mains in one street is not unreasonable. An ordinance requiring two water mains in a street cannot be said to be so unreasonable as to constitute an abuse of discretion by the council where the objector offers no evidence and the city introduces a general ordinance providing that two water mains shall be laid in streets of exceptional width which are to occupied by street car tracks and makes proof tending to bring the street to be improved within the terms of such ordinance.</p> <p>3. .Same—assessment roll prima facie evidence of correctness of amount assessed. The statute makes the assessment roll prima facie evidence of the correctness of the amount assessed against each objecting owner, and the introduction of the assessment roll makes a prima facie case.</p> <p>4. Same—what issues raised by objection that special assessment is unjust. Where the objection to a special assessment is that it is unjust and oppressive the issues to be tried are whether the property will be benefited as much as it is assessed and whether it is assessed more than its proportionate share of the cost.</p> <p>5. Sams—what determines whether property is assessed more than its proportionate amount. The question whether an owner’s property is assessed more than its proportionate amount is to be determined by inquiring what proportion the assessment bears to the whole amount assessed on all the lands and lots, and not by comparing it with the assessment on any particular lot or lots.</p>

<p>1. Trusts—when trust will not result to one who pays a part, only, of purchase money. A trust will not result to one who pays a part, only, of the purchase money for land conveyed to another unless it be some definite part of the whole consideration.</p> <p>2. Same—resulting trust must arise, if at all, when deed is executed. A resulting trust must arise, if at all, at the time the conveyance is executed, and it cannot be created by the subsequent advancing of funds, as a loan, to make the deferred payments.</p> <p>3. Same—a trust not established if the evidence is capable of other reasonable interpretation. If the evidence in a suit to establish a resulting trust is capable of reasonable interpretation upon theories other than the existence of a resulting trust the trust is not established.</p> <p>4. Same—wjien resulting trust is not established. Where the evidence shows the making of a bond for deed to a woman and the subsequent execution of a deed to her, a resulting trust in favor of two of her sons, who were minors at the time, is not established by the fact that they practically supported the family and gave most of their earnings to their mother during the time the land was being paid for.</p> <p>5. Parent and chied—when mother is entitled to earnings of minor children. Where the father has abandoned his family, his right to the earnings of the minor children is lost and the mother is entitled to such earnings because of her natural obligation to support and maintain the children.</p>

<p>x. Taxes—right to levy a hard road tax must be strictly construed. The right to levy a hard road tax is not inherent in the voters of a township and the power and authority to levy such a tax must be strictly construed, and the only power conferred upon the voters of a town to impose such a tax is found in the Road and Bridge act of 1913.</p> <p>2. Same—under the Road and Bridge act of 1913 voters cannot impose hard road tax to begin in the future. The language of the Road and Bridge act of 1913 plainly indicates that a town shall be permitted to vote only upon the proposition of imposing a hard road tax to begin with the current year, and nowhere in the act is any power or authority given to the voters of a town to impose such a tax to begin in the future.</p> <p>3. Same—proposition for a hard road tax must be voted on at annual election if possible. The Road and Bridge act of 1913 contemplates having the proposition for a hard road tax voted upon at the time of the annual election when possible, and it must be voted upon at the annual election if there is time to present the proposition of imposing the tax for the year in which the election is held.</p> <p>4. Same—purpose of provision of Road and Bridge act of 1913 for a special election to impose hard road tax. The evident purpose of the provision of the Road and Bridge act of 1913 providing for the holding of a special election on the proposition of imposing a hard road tax is to enable the voters of the town to have an opportunity to vote on the proposition where the petition has been presented too late to submit the question at the annual town election, and, in case it carries, to have a tax levied the same year.</p>

<p>1. Special assessments—nature of assessment roll and objections in special assessment proceeding. The assessment roll in a proceeding to levy a special assessment stands in the place of a declaration, and the objections answer the purpose of a plea to the extent that they give information to the people of the defense intended to be made.</p> <p>2. Same—when objection need not be in writing. Where an objection is made, on application to confirm a special assessment, that the petition was not filed by any officer of the municipality, and such objection is understood by both parties and is decided by the court, the case may be submitted without a written objection.</p> <p>3. Same—petition must be filed by some officer designated in ordinance. Under the Local Improvement act the ordinance must designate some officer to file the petition in the name of the municipality, and it is not sufficient to designate a certain person to file the petition as attorney for the petitioning village where such person has never received an appointment as attorney for the village, even though there is a general ordinance creating the office of village attorney, which has been vacant ever since it was created.</p>

<p>1. Wills—when judgment of probate court admitting will to probate becomes conclusive. The judgment of the probate court admitting a will to probate does not become conclusive and a bar to a contest of the will, under section 7 of the Statute of Wills, until the time for beginning such action has-expired.</p> <p>2. Same—there must be an order admitting will to probate before bill to contest a will will lie. The action to contest a will is a statutory proceeding, and there must be an order admitting the will to probate before a bill to contest the will will lie.</p> <p>3. Same—what is the issue in a will contest case. In a will contest case the validity of the will is raised for adjudication on its merits, and the issue is whether the writing offered as the will of the deceased is his last will and testament, and not whether the will was properly or improperly admitted to probate.</p> <p>4. Same—grounds for contesting a will are not restricted by statute. The grounds upon which a will may be contested, under section 7 of the Statute of Wills, are not restricted, and any ground which, if established by proof, will invalidate the will may be made the basis of a contest under said section if the bill is filed within the time limited by the statute.</p> <p>5. Same—revocation is a proper ground for contesting a will in the circuit court. That a writing offered as the will of a decedent has been revoked or that some part of it has been annulled or destroyed are proper grounds for contesting the will in the circuit court under the Statute of Wills.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Parks—a park district and library board cannot surrender to each other exclusive control of any part of a library building to be erected in park. A park district organized under the act of 1895 and the board of a public library organized under the act to authorize cities to maintain free public libraries cannot, by an agreement for the erection of a library building on park property, surrender to each other exclusive control of any part of the building, notwithstanding such agreement may be beneficial and economical to the public, as the statute has expressly provided for separate management and control of public parks and public libraries.</p>

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

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

<p>Workmen’s compensation—section 24 of the act of 1913 is mandatory. Section 24 of the Workmen’s Compensation act of 1913, providing that no proceedings for compensation shall be maintained unless claim for compensation has been made within six months after the injury, etc., is mandatory, and if the evidence shows that no claim was so made, the circuit court, on writ of certiorari, should hold the claim to be barred.</p>

<p>1. Limitations'—when widow does not acquire title adverse to -heirs. Where the widow, by virtue of her dower and homestead rights, is in possession of land which has been sold for taxes, she cannot acquire title adverse to the heirs by purchasing the certificate of purchase' and having a tax deed issued to her, nor can such tax deed be relied upon as color of title acquired in good faith.</p> <p>2. Same—purchaser with knowledge of the facts occupies no better position than the grantor. Gne who obtains an undivided five-sevenths interest in land by a deed from the widow, who had purchased the interest of one heir, and an heir who had purchased the interest of three others, cannot claim title, by limitation, against the two heirs who have not conveyed their interests, even though the deed purports to cover the entire eighty-acre tract, where he has knowledge of all the facts and where there is nothing to show that the two heirs had any knowledge that he intended his possession of the land to he adverse to them.</p> <p>•3. Same—possession of one tenant in common cannot be set up as a bar against co-tenants. The mere possession of one tenant in common, coupled with payment of taxes and appropriation of rents by him, cannot be set up as a bar against his co-tenants, in the absence of any facts tending to show an ouster of the other co-tenants.</p>

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

<p>1. Corporations—•when capital stock of advertising company cannot be assessed by the State Board of Equalisation. An advertising company organized for the purpose of doing a general advertising business, publishing and printing books and papers, designing illustrations and carrying on the business of electrotyping and engraving is included in the terms of the statute which exempt the capital stock of printing companies from assessment for taxes by the State Board of Equalization, and its capital stock is assessable only by the local assessor or board of assessors.</p> <p>2. Same—business need not be exclusively printing to exempt capital stock from assessment by the State board. The statute exempting the capital stock of printing companies from assessment by the State Board of Equalization does not require that the business be exclusively printing in order to be within the exemption, and it is sufficient if the principal business of the corporation be the printing business.</p>

<p>1. Equity—when equity may retain jurisdiction. Where a bill is filed to obtain equitable relief and the evidence sustains the grounds for such relief the court will retain the bill and afford that relief even though, incidentally, it may be necessary to find and pass upon legal rights.</p> <p>2. Same—when the court should not retain jurisdiction. If the evidence fails to sustain the facts upon which the right to equitable relief is based, leaving merely legal rights to be ascertained and passed upon, the jurisdiction of the .court fails and the parties must be remitted to their action at law.</p> <p>3. Same—question of non-delivery of deed may be determined in an action at law. Where a bill is filed to set aside a deed and enjoin the prosecution of an action of ejectment on the ground that the deed was obtained by fraud and was never delivered but the proof fails to sustain the charge of fraud, thus leaving the question of non-delivery the only one to be determined, the court should not retain the bill but should leave the complainants to interpose their defense óf non-delivery to the suit in ejectment.</p> <p>4. Deeds—deed has no binding force unless delivered. A deed has no binding force as a conveyance unless it has been delivered, and the question of delivery must be determined from a consideration of all the evidence showing the intention of the parties.</p> <p>5. Same—consideration in ah acknozvledged warranty deed can not be contradicted. The consideration in an acknowledged warranty deed cannot be contradicted by parol evidence for the purpose of destroying the effect of the deed as a conveyance.</p>

<p>Writ oe Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.</p>

<p>Taxes—highway commissioners must certify levy of hard road tax for entire period authorised by election. By section no of the Roads and Bridges act of 1913 the commissioners of highways are required to certify the levy of a hard road tax directly to the county clerk for the full period authorized by the election and the tax must be extended by the county clerk “for the current year and for each succeeding year,” and where the commissioners certify the levy only for the current year and for the previous year when the collection of the tax was enjoined, without making a certificate for the full five-year period for which the tax was authorized to be levied, the county clerk has no authority to extend the tax for the years certified and the collection of the tax may be enjoined.</p>

<p>1. Practice—when a party cannot contend that there was no order of reference to the master. A party cannot contend in the Supreme Court that there was no reference to the master to take proofs where no such objection appears to have been made in the court below, where said party appeared at the taking of the testimony by the master and the decree prepared by his solicitors recites that the cause was referred to the master to take the proofs and report the same and that the report was confirmed and approved by the court, and where all parties appear to have understood and treated the cause as having been referred to the master and his report is heard and considered without objection.</p> <p>2. Same—when parties are warranted in treating a case as referred to the master. Where an order referring a case to the master is vacated in another order granting leave to amend the bill and to answer the bill as amended, and concluding with the words, “and cause referred to the master to take and report the evidence and cause continued,” the meaning and purpose of such order are that upon filing the amendment to the bill and the answer to the bill as amended the cause is to stand referred to the master to take and report the evidence, and the parties are warranted in treating the case as referred to the master.</p>

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

<p>Writ of Error to the Criminal Court of Cook county; the Hon.' David M. Brothers, Judge, presiding.</p>

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

<p>1. Injunction—injunction is the proper remedy when a city takes possession of a street to which it has no right. Where a municipality undertakes to take possession of a street to which it has no right the proper remedy is a bill for injunction.</p> <p>2. Highways—what is necessary to constitute a common law dedication to the public. Where there is no evidence showing that a plat is statutory the rules governing a common law dedication must be followed, and in order to constitute such a dedication the proof must be clear and convincing that the owner intended to donate the land to the public use for a street and that the public have accepted it for that purpose.</p> <p>3. Same—making of a common law plat only evidences intent to dedicate. The making of a common law plat and the sale of lots with reference thereto are only evidence of an intent to dedicate, which, like every other dedication, to be made complete and carried into effect so as to create public rights, must be accepted and acted upon by the public.</p> <p>4. Same—acceptance of common law dedication may be express or implied. The acceptance of a common law dedication may be an express one, evidenced by some formal act by the public authorities, or it may be implied by their acts, such as repairing, lighting or assuming control of the land dedicated, or by user by the public for the purposes for which it was dedicated, and when the dedication is very beneficial or greatly convenient or necessary to the public an acceptance will be implied from slight circumstances.</p> <p>5. Same—mere travel does not, alone, constitute acceptance of common law dedication. Mere travel by the public does not, of itself, constitute an acceptance of a common law dedication, but,_ taken in connection with other facts and circumstances, it may be regarded as tending to show acceptance when it is adverse, as a matter of right, and not merely permissive.</p> <p>6. Same—common law plat has no effect as a conveyance and the offer to dedicate may be revoked before acceptance. A common law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public.</p> <p>7. Same—common law dedication once accepted is irrevocable. After a common, law dedication is once accepted by the public it is irrevocable except with the consent of the public and of those persons who have vested rights in such dedication.</p> <p>8. Same—a common law dedication miist be accepted within a reasonable time. The acceptance of a common law dedication need not immediately follow the offer to dedicate but must be within a reasonable time and before withdrawal by the offerer.</p> <p>9. Same—what may show revocation of an offer to dedicate by common law dedication. What constitutes a revocation of an offer to dedicate depends very largely upon the circumstances and is usually a question of fact, and it may be shown by acts inconsistent with the public use to which the land is offered to be dedicated, as by conveyance of the property, or by enclosing the land so as to exclude the public use, or by erecting buildings on the land offered to be dedicated as a street.</p> <p>10. Same—what shows an intention to revoke offer to dedicate. Where the owner or his grantee builds a pavilion or summer house on property offered to be dedicated as a street, and where it is clear from all the testimony that the land was used by the owner and his grantees as if it were private property in which the public had no right, it will be presumed that the owner and his grantees intended to revoke a common law dedication of a strip of land to the public for a street.</p> <p>11. Same—when offer to dedicate is revoked. Where land offered to be dedicated for a street by a common law dedication is not accepted by the public before the death of the dedicator, who has sold the land, the offer to dedicate will be revoked unless the grantee of the dedicator has aErmatively indicated an intention to continue the offer of dedication.</p> <p>12. Same—acts showing acceptance by public have no effect after revocation of common law dedication. Ordinances passed by a village naming a certain street which was offered to be dedicated by common law dedication can have no effect as an acceptance when passed after the withdrawal of the offer to dedicate.</p> <p>13. Same—the acceptance of part of the streets on a common law plat does not necessarily constitute acceptance of other streets. An acceptance of a part of the streets on a common law plat does not necessarily constitute an acceptance of other streets in the same plat.</p> <p>14. Same—what facts do not show dedication to be so necessary as to imply an acceptance from slight circumstances. Where the proof shows that for more than twenty years the present owner of land dedicated as a street on a common law plat has claimed exclusive authority over and use of the strip and has used it practically all that time to the exclusion of the public, and that trees and rocks are located on the strip in such a manner as to prevent any well defined line of travel as a public highway, it cannot be maintained that the dedication to the public was so necessary or convenient that an acceptance of the common law dedication should be implied from slight circumstances.</p>

Writ oe Error to the Second Branch Appellate Court for the Eirst District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. William E. DevER, Judge, presiding.

<p>1. Appeals and errors—judgment sustaining demurrer to pleas is not a final judgment. In a proceeding under the act of 1913, relating to adjoining drainage districts, to recover the cost of constructing outlet ditchés, if the answer and cross-petition of the defendant district are stricken'and a demurrer is sustained to its pleas the defendant has the right to file a new answer or pleas for the purpose of putting the case at issue, or it may elect to stand by its answer or pleas and refuse to answer or plead further and thus enable the court to enter judgment by default, but a judgment sustaining a demurrer to the pleas is not a final judgment.</p> <p>2. Pleading—how issue should be joined in proceeding under the act of 1913, relating to adjoining drainage districts. The procedure in joining issue in an action at law for the recovery of money is the procedure to be followed in joining issue in a proceeding brought by one drainage district against' another under section 7 of the act of 1913, relating to adjoining drainage districts, to recover the cost of constructing outlets.</p> <p>3. Same—what defendant must do to have sufficiency of answer passed upon by the Supreme Court. If the defendant drainage district in a proceeding under the act of 1913, relating to adjoining drainage districts, desires to have the Supreme Court pass upon the sufficiency of its answer or pleas to the petition it must elect to stand by such answer or pleas and refuse to answer further, so that the trial court may render judgment by default.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. John M. NiEhaus, 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. Charles M. Walker, Judge, presiding.</p>

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

<p>Writ op Error to the Branch “D” Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Henry C. BeiT-LER, Judge, presiding.</p>

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

<p>■ 1. Mandamus—mandamus lies to compel expunging of order made without jurisdiction. Mandaimis is an appropriate remedy to •compel the expunging of a void order made by a court or judge without jurisdiction, but the writ cannot be used as a means of reviewing the order of a judge in a matter he had jurisdiction of.</p> <p>2. Same—power of the executive committee of circuit judges in Cook county to transfer case. The provision of the rules of the circuit court Of Cook county that the executive committee may transfer any case to any judge of another division if in its judgment the due administration of justice renders such course advisable is reasonable, and the propriety of the transfer of a case in accordance with such provision cannot be reviewed in a mandamus proceeding to -compel the judge to whom the case was transferred to expunge orders made by him.</p> <p>3. Same—transfer of case has no effect upon the cause. The transfer of a case by the executive committee of the circuit court of Cook county is a mere administrative act which does not affect the cause itself or the orders already entered, and if the case is placed upon the wrong docket the judge to whom the cause is transferred has power to order it placed upon the proper docket.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon, Frank L,- Hooper, Judge, presiding.</p>

<p>1. Highways—what use of a road is sufficient to establish public right of way. Where there is a regularly traveled, unobstructed road across a tract of land, used by the public generally for more than twenty years without permission of anyone, such use is sufficient to establish a right of way by prescription, and it is not necessary that anyone make public proclamation of the claim of right to use the road.</p> <p>2. Same—what proof is necessary to establish a dedication to public use. Satisfactory proof either of an actual intention to dedicate or such acts and declarations as equitably estop the owner from denying such intention is required where land is claimed to have been dedicated to public use, and no satisfactory inference can be drawn of an intention to dedicate lands to public use where they are lying unenclosed.</p> <p>3. Same—use of way by prescription must be established under a claim of right and along a definite line. Where a right of way is claimed by prescription over unenclosed lands it must appear that the user is under a claim of right and the travel on a definite line.</p> <p>4. Same—how prescriptive right may be acquired. A prescriptive right may be acquired where the use is adverse and with the knowledge of the owner in possession of the land although the land is unenclosed.</p> <p>5. Same—effect of putting a gate in a fence at the place where a right of way is claimed. The fact that the owner of a tract of land, when enclosing it with a fence, puts a gate in the fence at the place where a right of way is claimed across the tract, is evidence that he recognizes the right of those who use the road to continue to use it by opening and closing the gate.</p> <p>6. Same—erection of a gate across a public highway is a nuisance. The statute imposes a penalty upon any person placing an obstruction in a public highway, and the erection of a gate across a public highway and compelling the public to open and close it is an obstruction and a nuisance, and no one can acquire a prescriptive right to maintain a nuisance.</p> <p>7. Same—what does not constitute an abandonment of road as a public highway. Where the owner of land over which a highway by prescription exists erects a gate across the road for his own convenience in pasturing stock, the fact that the public for many years thereafter open and close the gate when traveling the road does not amount to an abandonment of the road as a public highway.</p>

<p>1. Drainage—when error in description of land is not fatal on an application for judgment and order of sale. Where a forty-acre tract owned by two persons is assessed and classified by a description which covers the entire tract and states the correct number of acres owned by each person, the fact that the description of the land as the north part of the forty, containing thirteen acres, and the south part of the forty, containing twenty-seven acres, is not correct because the creek forming the boundary between the two owners is very crooked and runs diagonally through the forty, thus putting some of the land in the thirteen-acre parcel in the south part of the forty and some of the twenty-seven acre parcel in the north part, does not constitute a fatal objection on application for judgment and order of sale.</p> <p>2. Same—party ptirchasing land after spreading of assessment is not barred from objecting on application for sale. The fact that a person purchases land after a drainage assessment has been spread and in the deed agrees to assume and pay all drainage taxes or assessments does not preclude him from objecting and offering evidence on application for judgment and order of sale for a delinquent installment of the assessment, as the right of the People to enforce the lien of the drainage assessment depends upon the legality of the assessment and not upon agreement between land owners.</p> <p>3. Same—question of amount of benefits is open to inquiry on application for sale. While the classification of lands in a farm drainage district at a figure above zero is conclusive that the lands are benefited, yet the amount of benefits is open to inquiry upon application for judgment and order of sale; but the delinquent list is prima facie evidence that the lands will be benefited to the amount stated in the list, and it is not enough to show that the property has not yet received that amount of benefits.</p> <p>4. Same—when inadequacy of outlet is not a valid objection on application for sale. Inadequacy of outlet is not a sufficient objection to justify refusing judgment and order of sale for a delinquent farm drainage assessment unless it appears that the outlet cannot be made adequate for an amount equal to the benefits to the land affected.</p> <p>5. Same—commissioners may be compelled to furnish sufficient outlet. Owners of assessed lands in a farm drainage- district may compel the commissioners to furnish ample outlet, as the provisions of the Farm Drainage act requiring the commissioners to provide ample outlet are mandatory.</p> <p>6. Same—commissioners of an upper district may enlarge or deepen the outlet through lower district. Under section 41 of the Farm Drainage act the commissioners of an upper district, if they find upon completion of the work that the outlet is not sufficient to drain the lands of the district as contemplated, may, upon payment of compensation to the lower district, enter upon the lower district and deepen or enlarge the outlet so as to provide adequate drainage for the upper district, even though it may be necessary to acquire land beyond the limits of the lower district to make a sufficient outlet. (Clear Creek Drainage District v. St. Louis, Iron Mountain and Southern Railway Co. 264 Ill. 640, distinguished.)</p>

<p>1. Pharmacy—the presumption of good character continues in favor of the holder of a certificate of pharmacy. It is clearly the intention of the Pharmacy act that the presumption continues that the holder of a registered pharmacist’s certificate is of good moral character, of temperate habits and qualified to hold such certificate until the contrary’ is made to appear.</p> <p>2. Same—when State Board of Pharmacy cannot deny renewal of certificate. The State Board of Pharmacy cannot, under the statute, legally deny the renewal of a certificate without positive proof that the applicant is a man of such habits .or character as the statute deems unworthy of such certificate, or that by reason of some fraud on his part the board was induced to find him competent in the first instance when, in fact, he was not' competent.</p> <p>3. Same—when a petition for mandamus to renew certificate need not allege continuance in the business. A petition for mandamus to compel the State Board of Pharmacy to renew a certificate need not allege that the applicant had not retired from practice for five years, where the petition alleges that the certificate had been renewed from time to time, and further shows that the applicant had a certificate the previous year.</p> <p>4. Same—when petition for mandamus to renew certificate is sufficient in lavo. Where a petition for mandamus to compel the State Board of Pharmacy to renew a certificate negatives all the statutory grounds of disqualification, and shows, in addition thereto, that the relator had been granted other renewals by the board and had a renewal certificate for the previous year, the petition is sufficient, in law, to entitle the relator to the writ.</p> <p>5. Same—when State Board of Pharmacy is presumed to have regarded the applicant entitled to renewal of certificate. Where a petition for mandamus to renew a certificate shows by positive averment that the State Board of Pharmacy refused to grant the renewal on the ground that the certificate of the relator was found in the possession of another party, there is a presumption that the board regarded the relator as otherwise entitled to a renewal.</p> <p>6. Same—what is not ground for the State Board of Pharmacy to refuse to renew certificate. The State Board of Pharmacy can not refuse to renew a certificate merely because the certificate was found in the possession of some person other than the applicant, without showing misconduct on the part of the applicant; and even if the applicant knowingly fails to publicly exhibit his certificate, as required by statute, he is only required to forfeit the statutory penalty, and not his right to continue as a pharmacist, when he has again placed his certificate on exhibition.</p>

<p>Information to disbar.</p>

<p>1. Corporations—rule as to assessment of capital stock where there are no debts. Under the rules of the State Board of Equalization for the assessment of capital stock of corporations, where there are no debts to be added to the fair cash value of the shares, an assessment of the capital stock can be made only in case the equalized fair cash value of the shares exceeds the equalized valuation of its tangible property.</p> <p>2. Same—State Board of Equalisation cannot assess tangible corporate property. The State Board of Equalization has no authority to make an assessment of the tangible property of a corporation, for that is the province of the local assessors.</p> <p>3. Same—vahen assessment of capital stock cannot be sustained. While the State Board of Equalization is not necessarily bound by the market quotations on shares of stock in determining their value yet such quotations cannot be disregarded, and an assessment of capital stock made without evidence and in violation of the rules of the board cannot be sustained, even though the assessment of tangible property by the assessor is regarded as lower than it should be.</p>

<p>1. Nuisances—court of equity may enjoin public nuisance at suit of Attorney General or State’s attorney. A court of equity has jurisdiction to enjoin the maintenance of a public nuisance at the suit of the Attorney General or State’s attorney even though such maintenance may be punishable by indictment.</p> <p>2. Constitutional law—when the legislature may designate agency to set law in motion. Where the action is one affecting the public welfare it is within the constitutional power of the legislature to designate the agency to set the law in motion on behalf of the public, and in an act making bawdy houses public nuisances the legislature may confer on any citizen of the county the right to file a bill in equity enjoining the maintenance of such nuisances.</p> <p>3. Same—act of 1915, making bawdy houses public nuisances, is constitutional. Section 1 of the act of 1915, (Laws of 1915, p. 371,) relating to bawdy houses and declaring all such places, and the property therein, used for the' purposes mentioned in the act, to be public nuisances, is an exercise of the police power and is constitutional.</p> <p>4. Same—section 5 of the act making bawdy houses public nuisances does not confíscate property without due process of law. Section 5 of the act of 1915, making bawdy houses public nuisances, which authorizes a decree ordering that the building, apartments and premises remain in the custody of the court while the decree is in effect and ordering the place closed by the sheriff and the fixtures sold and the proceeds, after payment of costs, paid to the owner, does not deprive the owner of his property without due process of law, as it is also provided that an effort in good faith to abate the nuisance will prevent a decree to close the place, and that the giving of reasonable security to immediately abate the nuisance and prevent its establishment or maintenance within a period of one year will cause a vacation of the decree.</p>

<p>1. Civil service—what is not an encroachment upon the judicial pozver. The application of the State Civil Service law to a deputy in the office of the clerk of the Supreme Court is not an encroachment upon the power properly belonging to the judicial department.</p> <p>2. Same—constitution does not limit appointment of officers to any particular department. The constitution does not specifically confer the power to appoint officers on any department of the State government, nor does it provide that the officers or employees of any department can be appointed only by such department.</p> <p>3. Same—Civil Service act may be constitutionally applied to depzity performing constitutional duty of principal. The legislature cannot deprive an officer mentioned in the constitution of any of his powers, but it may make reasonable regulations in regard "to the means by which and the time, place and manner" in which the duties of such officer shall be performed, and hence may make the appointment of his deputies subject to the Civil Service law.</p>

<p>Writ OE Error to the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hón. Oscar M. Torrison, Judge, presiding.</p>

<p>1. Schools—right to attend school does not depend on legal domicile. The schools are required by statute to be maintained for all persons in the school district over the age of six and under twenty-one years, and it is not essential to the right of a child to attend a public school that it should have a legal domicile in the place in which the school is held.</p> <p>2. Same—what residence required to entitle a child to attend school. The residence necessary to entitle a child to attend public school without payment of tuition is not such as would be required to establish a right to vote or which would fix the liability for the support of a pauper, but a residence, even for a temporary purpose, not solely to enjoy the benefits of the free schools and with the intention of removal as soon as that purpose is accomplished, is sufficient.</p> <p>3. Same—what children entitled to attend school. Every child of school age in Illinois is entitled, without payment of tuition, to attend the public school in the district in which it actually resides for the time being, whether that be its legal domicile or the legal domicile of its parents or guardian or not.</p> <p>4. Same—children in orphans’ home entitled to attend schools of the district where institution is located. Children in an orphans’ home' of a fraternal organization, who have been delivered by their parents or persons having their actual custody to the care of the orphans’ home for the purpose of providing for their maintenance and rearing in the place where that home is located until they attain the age of fifteen years, with no present intention on the part of anybody having any authority or control over the minors that this residence shall be changed, are all actual residents of the school district where the orphans’ home is located, and are entitled to attend, without paying tuition, the free schools of that district.</p> <p>5. Equity—what is not a misjoinder of complainants. Where an order excluding children from school affects all the children alike and their claims are all governed by the same legal rule and involve similar facts, and where the right sought to be enforced is common to all, the children may all be joined as complainants in a bill to enjoin the enforcement of the excluding order.</p> <p>6. Same—injunction a proper remedy where children are ordered excluded from school. A bill to enjoin the enforcement of the excluding order is the proper remedy where children have been unlawfully ordered excluded from school, as the remedy at law by petition for mandamus would be incomplete and inadequate, in that during the pendency of the suit the children would be deprived of the advantages of attendance at school, thereby entailing a damage incapable of estimation at law and' irreparable.</p>

<p>1. Appeals and Errors—when purchaser at master's sale may appeal to Supreme Court from order to pay purchase price of land. Where the purchaser at a master’s sale, who is not a party to the foreclosure proceeding, refuses to pay the balance of her bid because of alleged defects in the proceeding which might affect the validity of her title, she may, on the ground that a freehold is involved, appeal to the Supreme Court from an order of the circuit court compelling her to pay the balance of her bid.</p> <p>2. Mortgages—what is the proper practice where purchaser refuses to pay balance of bid at a foreclosure sale. Where the purchaser of land at a foreclosure sale refuses to pay the balance of her bid it is proper practice for the trial court summarily to require her to pay the same, provided the master’s deed conveys a good title.</p> <p>3. Same—when validity of loans secured by trust deeds on infant’s land cannot be questioned. Where a father, as guardian of his minor children, secures loans by trust deeds upon their land to procure funds for their education, the validity of these loans cannot be questioned in a collateral proceeding by a third party on the ground that it was the father’s legal duty to support his children and that he had no right to borrow the money on their land.</p> <p>4. Same—when the court may order sale of a portion of land free from equity of redemption. In a proceeding to foreclose trust deeds upon the lands of minors made to secure loans for their education, if it is clear the minors have no property other than the land and that they may lose the whole inheritance if the land is offered for sale subject to the intervening life estate, the court may, in the exercise of its jurisdiction over infants and with the consent of the life tenant, order a sale of enough of the land, without equity of redemption, to pay the mortgages.</p> <p>5. Equity—courts of equity have plenary jurisdiction over estates of infants. Courts of equity have plenary jurisdiction over the estates of infants, and in exercising that jurisdiction may cause to be done whatever may be necessary to preserve their estates and protect their interests.</p> <p>6. Same—-equity has power to protect contingent interests of persons not in esse. The fact that persons may be born in the future who may in a certain contingency have an interest in land owned by minors does not preclude a court of equity, in order to save part of the land for the minors, from ordering a sale, on fore- ' closure, of a portion of the land free from all claims, as the court has power, by proper provisions in the decree, to protect the interests of persons not in esse.</p> <p>7. Notice—rule in construing sufficiency of notice in chancery proceeding. In construing notice in a chancery proceeding the real question is not whether the notice is formally and technically correct but whether the object and intent of the law are substantially attained thereby.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Thomas Taylor, Jr., Judge, presiding.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.

Writ op Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.

<p>Appeal from the Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>1. Judgments and decrees—rule as to collateral attack. Judgments and decrees, however erroneous, of courts having, jurisdiction are final and conclusive between the parties until reversed in a direct proceeding in the manner provided by law and cannot be attacked collaterally, but a judgment or decree rendered by a court having no jurisdiction to hear and determine the case is an absolute nullity and may be attacked at any time and in any proceeding.</p> <p>2. Same—the rule that judgment cannot be attacked collaterally applies to county courts. The rule that judgments and decrees of courts having jurisdiction cannot be attacked collaterally applies in all its force to the county court, which has general jurisdiction of probate and administration matters, and its order of sale of real estate to pay debts cannot be attacked collaterally except for want of jurisdiction.</p> <p>3. Homestead—section 9 of act relating to exemptions does not apply to sale with consent of owner of homestead right. Section 9 of the statute relating to exemptions, which provides that a sale on decree or execution of homestead property shall be void if the value of the homestead is less than $1000, does not apply to a sale with the written consent of the owner of the homestead, who consents to be paid in money.</p> <p>4. Judicial sales—county court has jurisdiction to sell land to pay debts although incumbered for all its value. The county court has jurisdiction, with the consent of the mortgagee and the widow, to order a sale of lands by the administrator disincumbered of mortgage, homestead and dower rights, and an order approving such a sale, which brings no more than the mortgage debt and produces nothing for the creditors of the estate, even though it may be erroneous, is within the exercise of the jurisdiction conferred by law and cannot be attacked collaterally.</p> <p>5. Equity—when a cause is heard on bill and answers the answers are to be taken as true. Charges of fraud and collusion in a bill to set aside a deed are not sustained where the answers deny such charges and where the cause is heard on bill and answers, since the answers are to be taken as true, and there can be no fraud in such a case unless the proceedings of record set out in the bill and admitted by the answers constitute fraud in law.</p>

Writ oe Error to the Branch “D” 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.

Writ or Error to the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.

<p>Wills—a step-child is not within contemplation of section 11 of Statute of Descent. A step-child of the testator is not within the contemplation of section 11 of the Statute of Descent, which prevents the lapse of a devise or bequest to a child or grandchild in case such child or grandchild pre-deceases the testator leaving issue, even though the clause devising the remainder in fee names such step-child with the testator’s children and concludes with the words, “making them all my equal heirs.”</p>

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.</p>

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

<p>1. Special assessments'—court not bound to accept testimony of either set of witnesses as to benefits. On the hearing of an objection to the amount of benefits in a special assessment case the county court is not bound to accept the testimony of one or the other set of witnesses but may take into consideration all of their testimony, including the facts upon which they base their conclusions.</p> <p>2. Same—reason given for judgment is not material. If the judgment of the county court on the hearing of the question of benefits in a special assessment proceeding is correct it should be affirmed, regardless of the reasons given.by the court for the conclusion reached.</p>

<p>Appear from the Circuit Court of Madison county; the Hon. J. F. Girrham, Judge, presiding.</p>

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

<p>1. Ejectment—when title need not be traced to common source or to the government. Where the plaintiff in ejectment makes a prima facie case by proof of possession under a deed he need not trace his title to a common source nor to the government, but where there is no proof of possession and no proof of title from a common source the plaintiff must prove title from the government.</p> <p>2. Same—what necessary to prove county invested with title to swamp land. All swamp and overflowed land was granted to the counties by the State in 1&52, and all that is necessary to invest the county with the title is to prove that the land is overflowed land, and not that it has been classified as swamp land.</p> <p>3. Same—when a deed by chairman of board of supervisors is stifficient. A deed to swamp or overflowed lands executed by the chairman of the board of supervisors of the county is sufficient if it recites the authority given by the board and that the deed is in execution of the power.</p> <p>4. Same—mere possession sufficient to warrant recovery where defendant shows no better title. Ejectment is a possessory action, and possession, even without a deed, is presumptive evidence of a fee, and is sufficient to warrant a recovery unless the defendant shows a better title.</p> <p>5. Same—possession under a deed or paper purporting to be a deed is co-extensive with description in such instrument. A party who enters into possession of land under a conveyance, even from a party having no title to convey, or under a paper purporting to be a deed but having no' seal, is presumed to enter according to the description of such conveyance or paper, and his occupancy of part, claiming the whole, is construed as a possession of the entire tract which the instrument purports to convey.</p> <p>6. Same—plea of not guilty admits possession in defendant at beginning of suit. The defendant in an ejectment suit by a plea of not guilty admits his possession of the land at the beginning of the suit.</p> <p>7. Same—question of abandonment is one of intention. The question of abandonment is one of intention, to be determined from the evidence, and there is no abandonment unless the premises are left with an intention of not again resuming possession.</p> <p>8. Same—when the defendant must make affirmative proof of abandonment by plaintiff. Where the plaintiff in an ejectment suit has proven a prima facie title, - it is incumbent upon the defendant, on a claim of abandonment, to make it appear affirmatively that such title had been abandoned by leaving the land with no intention of returning.</p>

<p>1. Juvenile Court act—Ming petition does not make the petitioner a party. The filing of a petition under the provisions of the Juvenile Court act, setting forth that a certain child is dependent, neglected or delinquent, does not make the petitioner a party, but on the filing of the petition the people become the real party complainant and must prosecute the proceeding.</p> <p>2. Same—decision under the Juvenile Court act cannot be reviewed by appeal. A decision of the trial court under the Juvenile Court act cannot be reviewed by appeal, as the act itself provides for a writ of error as the means of review, and the provision of section 91 of the Practice act authorizing an appeal in “any suit or proceeding at law or in chancery,” does not apply to such' a purely statutory proceeding as the one provided for in the Juvenile Court act.</p>

<p>1. Criminal law—when amendment of record is unnecéssary. Where it is apparent that in the placita the three judges of the circuit are mentioned simply as the judges of the court and that the judge designated as presiding was the only judge present and participating when pleas of guilty were entered, and where the original record also discloses all that is required to be disclosed, under the statute, with reference to the admonition given to the defendants upon pleas of guilty, it is unnecessary to amend the record to show clearly that there was but one judge presiding at the time and that the defendants were fully admonished as to the effect of their pleas.</p> <p>2. Same—when it will not be presumed the court erroneously stated the effect of pleas of guilty. Where the record discloses, in the language of the statute, that the court explained to the defendants the consequences of their pleas of guilty, it will not be presumed that the court erroneously stated to them the effect of such pleas unless there is positive proof in the record to that effect.</p> <p>3. Same—power of court to punish defendants who plead guilty on a charge of murder. Where defendants are indicted for murder and plead guilty to that charge the court is empowered to punish them by sentencing them to be hanged or to be confined in the penitentiary for the term of not less than fourteen years and from that term up to the period of their natural lives.</p> <p>4. Same—when provision in judgment for parole of defendants convicted of murder is mere surplusage. Where the judgment of conviction for murder clearly and unmistakably commands that the defendants each be confined in the penitentiary for the term of his natural life, a provision in the judgment for the parole of the defendants or their discharge by the prison board, as authorized and directed by law, is surplusage, since the warden of the penitentiary and all other persons having to do with the administration of the criminal laws are bound to take notice whether, under the existing law, the Parole act applies to anyone convicted of murder.</p>

<p>Writ op Error to the Appellate Court for the First District;—heard in that court on appeal from the .Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.</p>

Writ OB Error to the 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. Easements—what rights are acquired by a railroad in purchasing fee simple title to right of way. Under a grant giving the railroad a fee simple title it has the right to use its right of way for all purposes connected with the construction, maintenance, re.pair and complete operation of its railroad, to change its road-bed and increase the number of its trains or tracks or change its motive power from steam to electricity; and these are continuing rights, enabling it to change its plan of construction and operation to meet the demands of a growing business.</p> <p>2. Same—when damages cannot be recovered because of elevation of a railroad owning fee simple in right of way. Damage that neighboring property sustains because of the elevation of the tracks of a railroad company which owns the fee simple title to the right of way cannot be recovered unless the work of elevation is done carelessly and negligently.</p> <p>3. Same—when counsel cannot raise the question that railroad made no elevations outside right of way. Counsel for a railroad company cannot insist in the Supreme Court that there is no evidence in the record that the railroad constructed an approach on a roadway outside its right of way when the question was not raised in the trial court and the issues were submitted to the jury, under instructions from both sides, on the basis that the railroad company constructed such approach or caused it to be constructed to make the roadway correspond with the new level of the tracks.</p> <p>4. Same—rights of owners of property abutting street or highway. Owners of property bordering upon a street or highway, in addition to the public right of travel which they enjoy in common with all citizens, have a right of access to and egress from the property by way of the street and to have light and air from the public highway unobstructed by any encroachment thereon, and these rights cannot be taken away or materially impaired without compensation to the extent of the damages suffered.</p> <p>5. Same—when a railroad company is liable for damage from raising grade of a highway. A railroad company which raises or causes to be raised the grade of a highway as an approach to its elevated tracks is liable for damage to abutting private property caused by turning surface or other water upon it which would not have flowed upon it but for such change.</p> <p>6. Appeals and Errors—the judgment of the Appellate Court is conclusive as to questions of fact. The judgment of the Appellate Court affirming that of the trial court is conclusive as to questions of fact, the credibility of witnesses, whether the evidence is sufficient to support the verdict or whether the preponderance of evidence is for or against the verdict, even though the judgment of the trial court is affirmed by operation of law because one of the judges of the Appellate Court took no part in the decision and the other two disagreed.</p> <p>7. Instructions—when a party cannot complain of error in an instruction. A party has no right to complain of error in an instruction when like error appears in an instruction given at his own request.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Menard county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>1. Workmen’s compensation—under the act of 1913 notice must be given parties of hearing on review by Industrial Board. The Workmen’s Compensation act of 1913 does not specifically state that notice must be given the parties of the hearing on review by the Industrial Board of the arbitration committee’s award, but that such was the intent and purpose of the act is plain from the language of the statute.</p> <p>2. Same—Industrial Board cannot investigate facts disputed on review without additional notice. Where the evidence is so conflicting on the review of the arbitration committee’s award that the Industrial Board cannot decide the controversy without additional information, the board cannot appoint a special investigator to investigate and take evidence without giving notice of such appointment and affording the parties an opportunity to cross-examine witnesses and to present such evidence as they may desire.</p> <p>3. Same—when Industrial Board exceeds its pozvers. The Industrial Board acts beyond its powers and contrary to law when it makes an award upon the report of a special investigator, based upon statements of parties procured by him without notice to the defendant.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding.</p>

<p>Practice—what is not a statement of facts or correct stenographic report. An alleged “statement of facts” by a judge of the municipal court, which is merely a statement, in narrative form, of the substance of the testimony of two witnesses, and which does not purport to contain all the evidence heard on the trial, is neither a statement of facts nor a correct stenographic report of the evidence, within the meaning of the Municipal Court act.</p>

Appear from the First Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. February 18, 18.69, John H. Bradley, then a resident of the city of Indianapolis, Marion county, Indiana, made and executed his last will and testament in accordance with the laws of that State then in force.

<p>1. Public utilities-—the purpose of the Public Utilities act. The Public Utilities act is intended as an effective means of preventing unjust discriminations, undue preferences and extortionate rates and charges by public utilities, and in order to make the act effective the Public Utilities Commission- was created, whose first power and duty under the act is to establish just, reasonable and uniform rates, charges, rules and practices by public utilities.</p> <p>2. Same—when Public Utilities Commission cannot order railway company to return to previous rate zvithout evidence that new rates are unreasonable. Where a railway company has changed its passenger rate before the Public Utilities act took effect, the Public Utilities Commission has no power, upon a petition by'the, patrons of the railway company charging that the new rate is excessive, to order the railway company to return to the old rate before, or pending, the determination, upon sufficient evidence, that the new rate is unreasonable.</p> <p>3. Same—what provision of section 36 of Public Utilities abt is not applicable to first schedule of rates filed. The provision of section 36 of the Public Utilities act that no change in rates shall go into effect pending a hearing by the Public Utilities Commission as to the reasonableness of the change, does not apply to changes made when the first schedule is filed.</p> <p>4. Same—the Public Utilities Commission cannot change rates in original schedules without hearing evidence. No authority is given the Public Utilities Commission by the Public Utilities act to change the rates named in the original schedules filed except on evidence heard.</p> <p>5. Same—rates in force when schedules were made were the ones to be included in schedules filed. It was contemplated by the Public Utilities act, under the provision that no service could be rendered by a public utility until its schedule of rates was filed, that the schedules should be on file when the act went into effect, and the rates in force when the schedules were made cannot be increased thereafter without the consent of the Public Utilities Commission.</p> <p>6. Same—Public Utilities Commission has power, after a hearing, to establish reasonable rates and order reparation for overcharges. " The Public Utilities act affords a remedy against the continuation of excessive or unjustly discriminatory rates by the establishing of just and reasonable ones through the Public Utilities Commission, and section 73 of said act empowers the commission, after a hearing, to compel reparation for an overcharge.</p> <p>7. Same—effect of putting new rates in force before the Public Utilities act took effect. Where a railway company has increased its passenger rates after July 1, 1913, but before the Public Utilities act took effect, and included them in the first schedule filed, the reasonableness of such rates is a question to be decided by the Public Utilities Commission only after a hearing and upon sufficient evidence.</p> <p>8. Same—what evidence may be demanded by Public Utilities Commission. In determining the reasonableness of the scheduled rates of a railway company the Public Utilities Commission has a right to demand any evidence bearing on the question at issue, including all contracts and arrangements between said company and any other connecting company.</p> <p>9. Same—burden is on railway company to show rates are reasonable and just. The burden is upon a railway company, on a hearing before the Public Utilities Commission, to show that its rates are reasonable, just and not excessive; and where the rates of two connecting lines are involved, if they are shown to be confiscatory as to one and excessive as to the other, the commission has the right to adjust and apportion joint rates so as to make them just and reasonably remunerative to both.</p> <p>10. Same—a confiscatory rate is void as a deprivation of property without diie process of law. A rate that is confiscatory or insufficient to pay costs of the traffic and other proper expenditures and to return to the carrier a reasonable profit on the investment infringes upon the constitutional rights of the carrier by depriving it of property without due process of law and is void, whether fixed by the statute or by the Public Utilities Commission.</p> <p>11. Same—the Public Utilities Commission may fix rate of less than two cents a mile. The Public Utilities Commission has no power to fix a passenger rate for corporations organized under the Railroads act at a greater rate than that fixed by the act of 1907 establishing the maximum rate of two cents per mile, but said commission is explicitly authorized, by section 41 of the Public Utilities act, to fix a rate lower than two cents per mile if the evidence shows that a lower rate is just, and such section is not in violation of section 12 of article 11 of the constitution.</p> <p>12. Same—purpose of the definitions of “railroad” and “street railroad” in section 10 of the Public Utilities act. The definitions of the terms “railroad” and “street railroad,” found in section io of the Public Utilities act, are for the purpose of showing what the legislature included by the use of those terms, and they do not purport to change or to modify in any way the meaning of the same terms as used in other statutes or in the constitution.</p> <p>13. Constitutional law—Public Utilities act does not violate section 4 of article 11 of State constitution. The Public Utilities act does not violate section 4 of article 11 of the State constitution, which provides that the legislature may not grant the right to construct and operate a street railroad within a municipality without requiring consent of the local authorities, as such provision does not attempt to divest the State of its paramount authority and control of streets and highways nor of its power to fix rates for street railway companies.</p> <p>14. Same—the Public Utilities act is not an amendment of any other act. The Public Utilities act is a complete act of the legislature on the subject with which it deals and not an amendment of any other act.</p> <p>15. Same—article 5 of Public Utilities act does not deprive one of property without due process of law. Article 5 of the Public Utilities act, providing for- a hearing before the Public Utilities Commission and entitling the parties to be present and to contest the facts on the merits, satisfies the constitutional requirement of due process of law, as such requirement is complied with if the person affected has sufficient notice and adequate opportunity to be heard; nor is the provision making the finding of the commission prima facie correct and requiring an objector to show by clear and satisfactory evidence that the commission’s order is unjust or unreasonable in violation of the due process clause of the constitution,</p> <p>16. Same—section fi of the Public Utilities act, restricting the right to a supersedeas, is not invalid. While the constitution secures to all persons, both natural and artificial, the right of an appeal or writ of error in all civil cases where the judgment or decree is final, the right to have the same made a supersedeas is not a constitutional right, and section 71 of the Public Utilities act, restricting the right to a supersedeas, is not invalid.</p> <p>17. Same—legislature not prohibited from defining terms specifically for a particular act. The legislature may in any act define terms specifically for that act, and such definitions are not prohibited by any constitutional provision simply because they are not the same definitions of the same terms used in other statutes or in provisions of the constitution.</p> <p>18. Appeals and errors—when objections to constitutionality of a statute will not be considered. The Supreme Court will not consider objections to the constitutionality of a statute when the parties urging such objections are not aggrieved by the alleged objectionable provisions.</p> <p>19. Railroads—State may regulate passenger fares and freight rates by means of a commission. The State has power to regulate the passenger fares and freight rates which may be charged and collected by railroads and other carriers within the State, and this regulation may be carried on by means of an administrative body created by the State for that purpose.</p>

<p>1. Wills—jurisdiction of equity over wills prior to amendment of section 50 of the Chancery act. Prior to the amendment of section 50 of the Chancery act in 1911 the jurisdiction of courts of equity to construe wills was a part of the control. of such courts over trusts, and they could not properly exercise the jurisdiction unless a trust, express or implied, was involved.</p> <p>2. Same—existence of a trust not essential to jurisdiction of equity to construe wills. Under the amendment of 1911 of section 50 of the Chancery act the existence of a trust is not essential to the jurisdiction of courts of equity to construe wills, where there is doubt or uncertainty as to the rights and interests of parties arising from ambiguous language in the will.</p> <p>3. Same—equity should not take jurisdiction solely to destroy contingent remainders. Where a will is neither ambiguous nor uncertain and where there is nothing in the bill calling on the court to exercise any power for the. conservation, preservation, protection or betterment of the estate or to settle any real controversy, and the bill is filed for the sole purpose of having the court declare contingent remainders destroyed and to certify that one of the complainants has a legal title in fee simple, a court of equity should not assume jurisdiction to construe the will.</p> <p>4. Cloud on title—when equity will not take jurisdiction to 'remove cloud on title under a will. A cloud upon a title is a claim, apparently valid, which may be removed by extrinsic evidence, and equity will not take jurisdiction to remove a cloud on title under a. will where there is no defect in title except what is apparent on the face of the will, so that resort to extrinsic evidence is not necessary.</p> <p>5. Same—equity should not take jurisdiction to remove verbal assertion of ownership as cloud on title. Where, in a bill to construe a will, the only averment respecting any claim contrary to the right of the complainants is that some of the relatives of the testator are contending that the remainders created by the will are vested and not contingent and that it is not possible to destroy such remainders, a court of equity should not take jurisdiction to construe the will and remove such mere verbal assertions as a cloud upon the title.</p> <p>6. Same—when equity will not take jurisdiction to declare the rights of parties. A court of equity will not entertain a suit merely to declare the rights of the parties on a state of facts which has not yet arisen and which may never arise.</p> <p>7. Judgments and decrees—decree construing will is not void though jurisdiction was erroneously exercised. Since a court of equity has always had the power, under certain conditions, to construe wills, a decree construing a will is not void even though the jurisdiction was erroneously exercised, but is binding until reversed on appeal or writ of error.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

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

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