Volume 278 — Illinois Reports

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from- the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.

<p>1. Taxes—when amended record of meeting of county board may be admitted in evidence on application for judgment. Where the record of the September meeting of the board of supervisors has been amended by the clerk to show the fact that the board approved of the tax for road and bridge purposes by the respective townships and the amendment has been approved by the board, the amended record may be introduced in evidence at the hearing on the application for judgment and order of sale.</p> <p>2. Same—a judgment against railroad company for delinquent taxes should describe property in each taxing district. A judgment against a railroad company for delinquent taxes should be against the separate portions of the railroad track and property in each taxing district for whose taxes the judgment is given, and should describe the property with such particularity that it can be found by a competent surveyor, so that the judgment will show what particular tract is to be sold for the delinquent taxes of each taxing district.</p> <p>3. Practice—re-opening of case for further evidence rests in discretion of court. The matter of the order of proof and of allowing a case to be opened up for taking further evidence rests in the sound discretion of the court and should not be interfered with except for clear abuse, and greater latitude should be allowed where the cause is tried before the court without a jury than where there is a jury trial.</p>

<p>1. Trespass—action of trespass should not be submitted to jury on theory of tenancy in common. In an action of trespass qztare clausum fregit for cutting down the south half of a hedge fence between two forties, the plaintiff, in order to recover, must show that such half was appurtenant to the forty owned by her; and the court should not submit the case to the jury upon the theory of an ownership of the hedge in common, as one cannot be guilty of committing a trespass upon property which he owns in common with another.</p> <p>2. Same—evidence that land is worth more becazise of the trespass should not be received. In an action of trespass quare clausum fregit for the destruction of a hedge fence between adjoining proprietors, evidence that the plaintiff’s land is worth more after the trespass than it was before is not admissible, for if a trespass was committed and property of value appropriated the plaintiff is entitled to recover, without regard to what effect the trespass had upon the property as a whole.</p> <p>3. Same—what is a proper element of damages for trespass for cutting down a hedge fence. Damage to a corn crop from cutting down a hedge fence because the plaintiff was thereby prevented from turning hogs loose in the field in the spring to destroy the noxious weeds that injured the corn is a proper element to be considered in estimating damages in an action of trespass quare clausum fregit for cutting away the hedge.</p> <p>4. Same—when damages for cutting dozun a hedge fence should not include its value as a zuind-break. In an action of trespass quare clausum fregit for cutting down a hedge fence, damages on account of its value as á wind-break should not be considered, where it does not appear that at the time of its destruction the hedge fence afforded any protection as a wind-break to any orchard or buildings on the plaintiff’s land within the meaning of the proviso to section 3 of the Fences act.</p> <p>5. Same—owner out of possession can recover only damages to reversionary interest. In an action by the owner for trespass to land in possession of a tenant the plaintiff can recover only for the damage to the reversionary right and interest and is not entitled to recover for damage to the possessory right of the tenant.</p> <p>6. Same—when dower right of widow does not affect plaintiff’s right to damages for trespass to land. Where a husband conveys land without his wife joining in the deed, in an action of trespass quare clausum fregit prosecuted by the grantee after the grantor’s death for a trespass committed during his lifetime, the plaintiff’s right of recovery and the measure of damages are not affected by the widow’s dower right, as she had no reversionary interest in the land at the time the trespass was committed.</p> <p>7. Fences—when agreement apportioning fence ceases to he effective. An agreement apportioning a hedge fence between two tracts of land owned by different persons, making the north half of the fence appurtenant to one tract and the south half to the other, ceases to be effective when the ownership of the two tracts vests in one person.</p>

<p>1. Sanitary districts—amended section 17 of the act erecting Sanitary District of Chicago is not invalid as a local or special law. The act of June 25, 1915, (Laws of 1915, p. 392,) amending section 17 of the act creating the Sanitary District of Chicago and providing that the district shall build bridges where certain streets are intersected by the construction of its drainage canal, which bridges, if wholly within the limits of any municipality, shall be the property of such municipality, is not in violation of section 22 of article 4 of the constitution either as granting special privileges and immunities or as being within the inhibition of such section against the passage of local laws relating to roads or streets.</p> <p>2. Same—amendment of section IJ of act creating the Sanitary District of Chicago does not deprive tax-payers of property without due process of law. The amendment, in 1915, of section 17 of the act creating the Sanitary District of Chicago, providing that the district shall construct bridges over certain streets newly extended across its drainage canal, does not deprive either the district, or the tax-payers residing therein, of property without due process of law but merely apportions the cost of a public improvement between the two municipalities. (Lussem v. Sanitary District, 192 Ill. 404, followed.)</p> <p>3. Municipal corporations—property of municipal corporation may be controlled by the legislature. Municipal corporations are purely creatures of the legislative will and are subject to its control, and may be created or annulled at the pleasure of the body creating them and their property turned over to some other municipal corporation and théir powers and duties conferred upon such other body.</p>

<p>1. Deeds—there must be a substantial failure to perform agreement to justify setting aside a deed in consideration of support. Where an agreement to support the grantor is the consideration for a deed, the subsequent conduct of the grantee may warrant the presumption that the deed was secured with a fraudulent intent on the part of the grantee to not perform the conditions of the contract; but to justify setting aside the agreement for such fraud there must be a substantial failure or refusal to perform the agreement.</p> <p>2. Same—when decree setting aside deed should be vacated to permit grantee to make her defense. A decree setting aside a deed at a hearing from which the defendant was absent without negligence on her part should be set aside and the defendant be permitted to make her defense, where the bill does not aver that the defendant had failed or refused to keep her agreement to support the grantor but only that she had persecuted and threatened to eject the grantor and had violated her alleged agreement to remain single, and where the affidavits of the defendant in support of the motion to vacate present a good defense to the bill.</p>

<p>1. Taxes—annual appropriation and tax levy ordinances are, ordinarily, essential to validity of tax for necessary municipal expenses. The passage of the annual appropriation ordinance within the first quarter of the fiscal year and the passage of a levy ordinance after the going into effect of the appropriation ordinance, as required by the Cities and Villages act, are ordinarily essential to the validity of a tax for the payment of the necessary expenses and liabilities of the municipal corporation.</p> <p>2. Same—acts of 1915, revising law regarding police and firemen’s pension funds, intended to be effective for levy and collection of taxes in that year. The acts of 1915 revising the law in regard to the police and firemen’s pension funds were intended to be effective for the levy and collection of taxes in 1915, and their effect was to authorize such levy and collection without regard to the provisions of the Cities and Villages act as to the time of the passage of the annual appropriation and levy ordinances.</p> <p>3. Other questions in this case are controlled by the decisions in People v. Day, 277 Ill. 543, and People v. Huey, 277 id. 561.</p>

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

<p>1. Public utilities—Public Utilities Commission cannot suspend railroad rates without a hearing. The Railroad and Warehouse Commission had no power to suspend railroad rates which were lower than the maximum fixed by said commission in 1906, and its successor, the Public Utilities Commission, has no power to suspend rates at all except after a hearing and taking evidence.</p> <p>2. Same—when burden is on shippers to show that scheduled railroad rates are unreasonable. Where the scheduled rates filed by railroad companies before the Public Utilities act took effect are lower than the maximum rates fixed by order of the Railroad and Warehouse Commission in 1906 they must be regarded as prima facie reasonable, and shippers who file petitions protesting against the rates filed have the burden of showing that they are unreasonable, even though they are higher than the rates charged before the schedule was filed; and the fact that the railroads have acquiesced in a void order of the Railroad and Warehouse Commission suspending the same rates does not change the situation so as to make the proceeding one by the railroads for an increase in rates.</p> <p>3. Same—section 68 of the Public Utilities act is not unconstitutional. The provisions of section 68 of the Public Utilities act that on appeal from an order of the commission the findings and conclusions of the commission on questions of fact shall be held prima facie true, and that the order of the commission shall not be set aside unless the finding is against the weight of the evidence or the order is beyond the jurisdiction of the commission,, are not unconstitutional. (State Public Utilities Com. v. Chicago and West Towns Railway Co. 275 Ill. 555, followed.)</p>

<p>Writ or Error to the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding.</p>

<p>1. Special assessments—as a general rule paving of a street is of no benefit to a railroad right of way. While there may be conditions under which a railroad right of way is benefited and can be assessed for a local improvement, as a general rule such a local improvement as the paving of a street is of no benefit to it.</p> <p>2. Same—benefits to railroad right of way are restricted to the special use to which the property is put. Where land is restricted to a special use, such as a railroad right of way, the measure of benefits which it may receive from a local improvement is the increased value of the property for such special use, and the test is whether the right of way will be benefited in its market value for the use to which it is being put and not for its probable future use.</p> <p>3. Same—increased profits because of accessibility to a station cannot be considered in assessing benefits to the right of way. Increased profits or revenue of the railroad company on account of the accessibility to its station cannot be considered in assessing benefits to the right of way from the paving of a street, nor is it proper to consider benefits received by the public at large,.</p>

<p>1. Constitutional law—amended section 12 of Motor Vehicle act is not unconstitutional. Section 12 of the Motor Vehicle act, as amended in 1915, (Laws of 1915, p. 592,) providing that no municipality shall require non-resident owners of motor vehicles to pay a license fee for the use thereof and limiting the fees' to be exacted from resident owners', is based on a reasonable and valid classification and is not unconstitutional.</p> <p>2. Same— courts will not pass upon wisdom of an act concerning the exercise of police power. The police power is far-reaching, and the courts will not pass upon the wisdom of an act passed in the exercise of that power but they will pass upon the question whether such act has a substantial relation to the police power.</p> <p>3. Same—reasonable classihcation based on residence in municipality is not invalid. Ordinances and statutes making different provisions for people residing in municipalities than for those residing outside are valid if the classification is based upon a reasonable distinction, and they will not be held unconstitutional because they result in some practical inequalities.</p> <p>4. Motor vehicles—an ordinance requiring license fee of nonresident owners of motor vehicles is invalid. The Motor Vehicle act was intended to bring the whole subject of regulating the use of motor vehicles under the control of the State, and a village ordinance imposing a license fee on motor vehicles not used for the pleasure of the owner thereof is void as to non-resident owners of such vehicles, as amended section 12 of the Motor Vehicle act forbids the imposing of municipal license fees on motor vehicles of non-resident owners, whether the vehicles are used for commercial purposes or otherwise.</p>

<p>1. Workmen’s compensation-—review of decision of Industrial Board by certiorari is on questions of law, only. The office of the writ of certiorari in a workmen’s compensation case is to bring before the circuit court for review the decision of the Industrial Board upon questions of law, only, and the return to the writ must show that board had jurisdiction to make the decision and that in doing so it acted legally.</p> <p>2. Same—when the petitioner need not show that an award in a lump sum is for best interests of both parties. Where an injured employee petitions the Industrial Board, under section 19 of the Workmen’s Compensation act, to order the award paid in a lump sum and the employer does not appear at the hearing on such petition, the petitioner is not required to prove that it is for the best interests of both parties to have the award so paid, but if he makes a prima facie case the board will be authorized to make such order.</p> <p>3. Same—return of writ of certiorari should contain testimony and not merely a statement of counsel. The return of the writ of certiorari to review the decision of the Industrial Board ordering the award paid in a lump sum should show that the board acted upon evidence and should contain the testimony upon which the decision was based, and not merely a statement of counsel of the substance of what he claims was testified to upon the hearing of the petition.</p>

<p>1. Criminal law—-zvhen averment in indictment is descriptive merely of the effect of the assault and may be treated as surplusage. Under the rule that an averment in an indictment may be treated as surplusage and be rejected where it can be stricken out without vitiating the indictment, an averment in an indictment for assault with intent to kill that the defendant shot “into and upon the clothing” of the party assaulted is descriptive merely of the effect of the assault and may be treated as surplusage.</p> <p>2. Same—zvhen testimony of police officers as to nature of complaint as stated in orders given them is not prejudicial. The testimony of police officers, who, upon complaint made, were ordered to arrest the accused, as to the nature of the complaint stated in the orders given them, is not admissible, but the error in admitting such testimony is not prejudicial, where there is abundant uncontradicted proof in the record establishing the facts upon which the complaint was based.</p> <p>3. Same—extent to which a man may defend his habitation. A man in his own habitation may resist with force an unlawful, violent entry by one whose purpose is to assault or offer violence to him, even to the extent of taking the aggressor’s life, but he is not warranted in taking the life of anyone who may approach his dwelling or trespass upon his premises without any offer of violence.</p> <p>4. Same—extent to which a prosecztting attorney, in his argument, may read statements of facts from reported cases. A prosecuting attorney, in his argument, may read enough of the ultimate facts of the reported cases he discusses to enable the jury to understand how the law is to be applied to facts of the case on trial.</p> <p>5. Same—what is not a reference to the fact that accused did not testify. Where the prosecuting attorney, in his opening argument, after stating and illustrating the circumstances testified to, remarks, “And there has been no evidence offered by the defendant—” whereupon, being interrupted by an objection, which was sustained, he withdrew the remark, it cannot be said that his remark was a reference to the fact that the accused did not testify in his own behalf.</p> <p>6. Same—what is necessary to sustain a charge of assault with deadly weapon zvith intent to kill. To sustain the charge of an assault with a deadly weapon with intent to commit murder, the proof must show that the assault was made under such circumstances that had the attempt been successful the killing would have been murder, as a man may intentionally use a deadly weapon in self-defense without the implication of malice, and he may' use such weapon in a sudden heat of passion under circumstances that if killing resulted it would be manslaughter.</p> <p>7. Same—when a judgment of conviction will not be reversed. In the absence of prejudicial errors of law a judgment of conviction which is warranted by the evidence will not be reversed.</p> <p>8. Same—when it is not error to give an instruction omitting the words "beyond a reasonable doubt.” It is not error to give an instruction for the People directing a verdict if certain facts are found to be proved but omitting the words “beyond a reasonable doubt,” where the words omitted were used, where necessary, in each of the other instructions given for the People, and where a general instruction was given on behalf of the accused correctly defining the degree of proof required before he could be found guilty.</p>

<p>1. Wills—what does not show an insane delusion. The fact that a father and mother make a joint and several will for the purpose of preventing their daughter’s husband, from whom she had parted, from inheriting any of their property in case she should subsequently become reconciled to him, does not show an insane delusion, even though they were very much excited over the matter and used such poor judgment as to practically disinherit the daughter, where their aversion to the son-in-law and their fear and belief as to his inheriting the property if the daughter did not secure a divorce before her death have a reasonable basis in the facts.</p> <p>2. Same—non-expert witnesses cannot give opinion as to sanity of testator without stating facts. Non-expert witnesses cannot give their opinion that a testator was not of sound mind and memory unless they state such facts or circumstances as may induce a reasonable belief in the unsoundness of mind of the testator.</p> <p>3. Pleadings—what question is presented by a motion to direct verdict in will contest case. A motion to direct a verdict for the defendants in a will contest case presents the question whether there is any evidence, considered in its most favorable aspect, aided by all reasonable inferences which may be drawn therefrom, fairly tending to prove the issues, and if there is no such evidence the court should allow the motion.</p>

<p>Res judicata—when a judgment of Supreme Court is res judicata on a second appeal. A judgment of the Supreme Court reversing a judgment and remanding the cause for new trial is res judicata on a second appeal in the same case, where the parties and all questions of law and fact are the same as on the first appeal.</p>

<p>Writ of Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Taxes—burden is on objector to sustain objections by affirmative proof. Where the county collector makes a prima facie case on application for judgment and order of sale the burden is cast on the objector to sustain every objection by affirmative proof.</p> <p>2. The other questions in this case are controlled by the decisions in People v. Day, 277 Ill. 543, People v. Huey, 277 id. 561, and People v. Daemicke, (ante, p. 53.)</p>

<p>1. Criminal law—when prosecutor may be required to elect upon which charge he will proceed. It is proper to state the same offense in different ways in as many counts of an indictment as the pleader may think necessary, even though the judgment on the several counts be different, provided all the counts are for felonies or all for misdemeanors, but where two or more distinct felonies are charged in the same indictment it may be quashed or the prosecutor compelled to elect upon which charge he will proceed.</p> <p>2. Same—evidence of similar offenses is admissible in prosecution for obtaining money by means of the confidence game. In a prosecution for obtaining money by means and by use of the confidence game, other offenses committed by the defendant similar to the one for which he is being tried are admissible to show guilty knowledge and intent.</p> <p>3. Same—when instruction as to obtaining money by means of confidence game is not erroneous. An instruction as to the nature of the crime of obtaining money by means and by use of the confidence game is not erroneous where it is in the language of the statute and is given simply to inform the jury generally as to the law of the case.</p> <p>4. Same—when one who receives a payment on a mortgage is guilty of the confidence game. A mortgagee who sells a note and mortgage but does not disclose that fact to the mortgagor or the latter’s grantee but continues to receive payments of interest and finally a payment of the principal, which he appropriates to his own use, is guilty of obtaining the money by means of the confidence game, where he did all that was necessary to induce the belief that he still owned the note and mortgage; and the fact that the debtor did not require the mortgage and note to be produced before payment but relied upon the mortgagee’s promise to send them later does not change the situation, where the mortgagee did actually release the mortgage of record.</p>

<p>1. Constitutional law—legislative journals may be resorted to to prove law was passed according to constitution. The legislative journals may be resorted to to prove that a bill was read at large three separate days in the house of representatives, in compliance with the constitution.</p> <p>2. Same—rule where the constitution does not require a constitutional prerequisite to be shown by legislative journals. Where the constitution does not require a constitutional prerequisite to be shown by the legislative journals and it can be inferred from the recitals in said journals that such fact existed or such step was taken, the presumption will be indulged that such fact did exist or that such step was taken, in order to sustain the validity of the law, unless the contrary appears from the journals themselves.</p> <p>3. Same—constitution does not require journal of house to record all steps taken in passage of a bill. While the constitution requires that each house of the legislature shall keep a journal of its proceedings, which shall be published, yet the yea and nay vote on the passage of bills and the dissent from and protest thereto by any member or members, on their request, are all the matters that are specifically, required to be entered on such journals, and there is no specific provision in the constitution that the journals shall recite that every bill was read at large on three different days.</p> <p>4. Same—the act of 1909, relating to practice of dentistry, was passed in compliance with the constitution. The recitals in the house journal that the act of 1909, in regard to the practice of dentistry, was ordered to a second reading, was called up in the order of second reading and was called up and read at large a third time, indicate that it was .read at large a second time, and it must be presumed that in this respect the bill was passed in compliance with the constitution.</p>

<p>1. Highways—when width and location of highway may be determined by fences on either side of it. The width and location of a highway which was not originally laid out under the statute by the commissioners of highways may be determined by the fences built by the owners on either side of it, whether the highway exists by prescription or dedication.</p> <p>2. Same—-m.se of strip of land as a highway by public for fifteen years constitutes it a public highway. User by the public of a strip of land as a highway for a period of fifteen years constitutes the same a public highway, and where a road which was not originally laid out under the statute has been bounded on one side by a hedge fence for more than twenty years, the public using the road during that time under claim of right up to said hedge, the hedge is properly held to be the boundary of the road.</p> <p>3. Same—whether user by public of strip of land as highway is adverse is for the jury. It is for the jury to say whether the acts of the public in using a disputed strip of land as a highway were of such character or nature that it will be inferred the land owner had notice of their adverse character.</p>

<p>1. Dram-shops—Sunday Closing law embraces all places where intoxicating liquors are sold. Section 259 of the Criminal Code, making it unlawful to keep open on Sunday any tippling house or place where liquors are sold or given away, is sufficiently comprehensive to embrace all places where intoxicating liquors are sold, whether such places are licensed or unlicensed, and the keeping of such places open to the public on Sunday under any pretext is a violation of the statute.</p> <p>2. Same—Sunday Closing law is general in its application and is not discriminatory. Section 259 of the Criminal Code, against keeping dram-shops open on Sunday, is a general law in force in all parts of the State, is applicable to all persons keeping places where intoxicating liquors are sold and is not subject to the objection that it is discriminatory.</p> <p>3. Same—control of sale of intoxicating liquor is within police power. The control and regulation of the sale of intoxicating liquor by prescribing the times when, places where and the circumstances under which it may be sold are within the police power of the State.</p> <p>4. Same—giving municipality power to regulate sale of liquor does not repeal any general law on the subject. The grant of power to muncipalities to regulate or prohibit the sale of intoxicating liquor does not operate to repeal a general law upon the subject.</p> <p>5. Same—ordinance imposing conditions on applicant for a license to keep dram-shop not unconstitutional. Ordinances imposing conditions on applicants for licenses to keep dram-shops, including an agreement to be bound by all future laws and ordinances on the subject, giving the mayor power to revoke licenses for violations of the agreement and providing for a forfeiture of the license fee to the city, do not deprive anyone of property without due process of law and do not violate any constitutional rights.</p>

<p>1. Municipal corporations—cities and villages have only such powers as are granted to them by the legislature. All legislative power is vested in the General Assembly, and while it may delegate power to municipal authorities to legislate concerning local matters, such power will be regarded as delegated only where it is given in express terms or is necessarily implied from powers expressly given.</p> <p>2. Same—when ordinance regulating the. delivery of intoxicating liquors exceeds municipal authority. An ordinance prohibiting the delivery of intoxicating liquor to any consignee in the city unless the carrier shall keep a book, open to the public, recording the name and address of the consignee and consignor and showing a receipt of the goods by the consignee, which ordinance does not attempt to regulate, license or prohibit the selling or giving away of intoxicating liquors, is not expressly nor impliedly warranted by section 1 of article 5 of the Cities and Villages act.</p> <p>3. Same—what police pozver is granted by clause 66 of section 1 of article 5 of the Cities and Villages act. Clause 66 of section 1 of article 5 of the Cities and Villages act, giving municipalities power to pass and enforce all necessary police ordinances, applies only to such ordinances as are necessary to enable the city to exercise the powers enumerated in the other clauses of said section and is not a general grant of all the police power of the State.</p> <p>4. Same—municipality cannot enact an ordinance prohibiting the peaceable keeping, receiving or using of intoxicating liquor. No municipality has the statutory power to enact an ordinance prohibiting the keeping, receiving or using of intoxicating liquor, where such keeping, receiving or using is done in such a manner as not to interfere with rights of others and there is no disturbance.</p>

<p>1. Workmen’s compensation—widow is entitled to compensation if deceased employee was under legal obligation to support her. Under paragraph (a) of section 7 of the Workmen’s Compensation act the widow of the deceased employee is entitled to compensation for the accidental injury resulting in his death whether or not she was dependent upon him for support at the time of his death and whether or not she was living with him, if at the time of his death he was under legal obligation to support her.</p> <p>2. Same—Industrial Board must base its findings on competent and legal evidence. The arbitrators and the Industrial Board must rest their findings upon competent and legal evidence as tested by the elementary and fundamental principles of judicial inquiry, the burden being upon the claimant to establish his claim by such evidence, but if there is any competent evidence in the record to support the decision of the Industrial Board the courts cannot pass upon its weight or sufficiency.</p> <p>3. Same—an order for payment of compensation in a lump sum should not be made without evidence or stipulation of fads. An order for payment of compensation in a lump sum should not be made at the instance of the claimant unless there is some evidence or a stipulation of facts by counsel for both parties that it is for the best interests of the claimant and that such order will not result injuriously to the other party, but it is not incumbent upon the claimant to show that it is for the best interests of both parties.</p> <p>4. Same—payment of attorney’s fees should not be decisive of question whether compensation-shall be paid in a lump sum. The question of the payment of attorney’s fees should not be considered decisive by the Industrial Board in determining whether or not the compensation shall be awarded in a lump sum but it is an element that may be considered.</p> <p>5. Same—unless point is raised by pleadings the administrator need not prove his right to sue. An administrator making claim under the Workmen’s Compensation act for an injury resulting in the death of an employee need not make proof of his right to sue as administrator unless that question is put in issue by pleadings.</p> <p>6. Same—when award of compensation in lump sum cannot be rejected. Under section 9 of the Workmen’s Compensation act, as amended in 1915, an award in a lump sum, where compensation has been awarded under section 7 of the act, cannot be rejected by the mere filing of a written rejection within ten days.</p> <p>7. Same—what is sufficient proof that employee was under legal obligation to support his wife. Where it appears that the wife of a deceased employee had lived apart from him for many years because of his unfaithfulness and there is no attempt to prove con-donation, uncontradicted evidence that she was legally married to the employee and had never been divorced is sufficient proof that he was under legal obligation to support her, as such obligation is imposed by law and does not depend upon the wife’s means of support but upon the marriage relation.</p> <p>8. Same—when an objection cannot be raised that evidence that wife had not been divorced was incompetent. An 'objection that the evidence before the Industrial Board showing that the wife of the deceased employee had not been divorced was incompetent because it was in the form of a telegram from her to her son, sent during the hearing, cannot be raised where no objection to its consideration was made, although the chairman of the board stated that it would not be considered as competent evidence if there was any objection by the employer or his counsel.</p>

<p>1. Constitutional law—when a law giving arbitrary power to administrative officers is unconstitutional. Any law which vests in the discretion of administrative officers the power to determine whether- the law shall or shall not be enforced with reference to individuals in the same situation, without any rules or limitations for the exercise of such discretion, violates the constitutional provisions against depriving persons of liberty or property * without due process of law and against the granting of exclusive privileges or immunities.</p> <p>2. Same—section 23 of act of 1912, revising the law in relation to charities, is unconstitutional. Section 23 of the act of 1912, revising the law in relation to charities, (Laws of 1911-12, p. 66,) which provides how the State may be reimbursed for the support of inmates of hospitals for the insane, is unconstitutional in granting to the State Board of Administration arbitrary power to release or modify the payment from the estates of patients “in. any case where the circumstances may justify it” and in giving a special immunity to estates of patients who have been discharged from the hospital during their lifetime.</p>

<p>1. Coroners—when coroner is not authorised to hold inquest. Where a person under the care of a physician dies of tuberculosis of long standing, and there is no supposition that he came to his death by violence, casualty or any undue means, the coroner is not authorized to hold an inquest over the body, as it is only in cases within the statute that a coroner’s jury may inquire into the facts concerning the death.</p> <p>2. Same—coroner's jury cannot fix civil liability of anyone for death of an injured person. It is not within the-province of a coroner’s jury to fix civil liability of anyone growing out of the death of an injured person, except so far as the finding required by the statute to be made may have such effect.</p> <p>3. Workmen’s compensation—burden is on claimant to prove an injury arising out of employment. The burden is on the claimant in a proceeding under the Workmen’s Compensation act to show, by direct or circumstantial evidence, an accidental injury arising out of and in the course of the employment, and a finding in such proceeding cannot rest on mere guess, conjecture or possibility.</p> <p>4. Same—disease and death subsequent to injury must be shown tó have some connection, with the alleged injury. On a review of the finding of the Industrial Board the court does not pass on the weight of the evidence as to controverted facts, but it is essential that there should be competent evidence fairly tending to prove the occurrence of an injury and that it arose out of the employment, and where the injured employee contracted a disease after receiving the injury and died, there must be evidence tending to connect the diseased condition with the alleged injury.</p>

<p>1. Practice—first sentence of section 81 of the Practice act as amended does not apply to bills of exceptions. The first sentence of section 81 of the Practice act as amended, regarding the filing of a stenographic report of the evidence during the term, does not apply to bills of exceptions, and the trial court may, at a term subsequent to the judgment term, enter an order extending the time for signing and filing a bill of exceptions, provided the extension order is entered within the time previously allowed. • (Miller v. Anderson, 269 Ill. 608, distinguished.)</p> <p>2. Construction—phraseology of an old statute, when retained in an amendment, is presumed to have been used according to its previous construction. Where the legislature by an amendatory act retains in a new statute'the same words and phraseology that have been contained in a former statute, it must be presumed that it used such words and phraseology according to the meaning which has previously been given them by judicial construction.</p>

<p>1. Drainage—the statute confers jurisdiction on county courts to organize drainage districts. The statute confers jurisdiction on county courts to organize drainage districts, and where a petition conforming to the statute is filed and all parties interested are properly in court the court has jurisdiction to hear and determine all questions before it, from the filing of the petition up to and including the establishing of the district, and having organized the district it has jurisdiction to hear and determine the question of benefits and damages.</p> <p>2. Same—proper exercise of jurisdiction to organize levee district cannot be questioned in collateral proceeding. The question whether the county court, having jurisdiction of the subject matter and the parties, properly exercised its jurisdiction in organizing a levee drainage district cannot be raised at the hearing on the assessment roll, as such question should be raised by objections, followed by an appeal or writ of error, at the time the order establishing the district is entered.</p> <p>3. SamE'—what matters do not go to jurisdiction to entertain proceeding to organize a levee district. The questions whether a copy of the original petition to organize a levee drainage district was filed, whether the commissioners were properly sworn, whether certain persons were made parties to the proceeding, whether all the lands of the district were assessed, etc., do not go to the jurisdiction of the county court to entertain the proceeding, and must be raised by proper objections before the order organizing the district is entered and be urged as error in a direct proceeding to review such order.</p> <p>4. Same—power of county court to approve changes made by commissioners. Under section 12 of the Levee act the county court has power to approve a report of the commissioners recommending the construction of a large number of additional lateral drains at a large extra expense, and the question whether the action of the court was erroneous must be raised in direct proceeding to review the order organizing the district.</p> <p>5. Jurisdiction—mere errors in exercise of jurisdiction cannot be urged in collateral proceeding. Mere errors in the exercise of jurisdiction, no matter how gross, cannot be urged in a collateral proceeding to impeach the judgment or decree, as it is only such defects appearing upon the face of the record as show a want of jurisdiction to enter the judgrhent that may be taken advantage of in such proceeding.</p> <p>6. Judicial notice—court will not take judicial notice of any of its records except the record in proceeding before it. A court will take judicial notice of its own records and thus dispense with proof identifying them, but it will not take judicial notice of the contents of any of its records except those in the proceeding before it.</p> <p>7. Appeals and Errors—when a motion to strike matters from record will be sustained. On appeal from an order of the county court dismissing a petition to organize a levee drainage district upon a motion made at the hearing on the assessment roll, matters relating to the proceedings prior to the entry of the order establishing the district, which are not contained in a bill of exceptions but are copied into the record by the clerk at the request of the appellees, will be stricken from the record on motion.</p>

<p>Appeals and Errors—when alleged violation of due process of law provision will not sustain direct appeal to the Supreme Court. The facts that the unsuccessful party in a divorce suit was ordered by the trial court to pay alimony pendente lite and solicitor’s fees and was committed to jail for contempt because he refused to obey such orders will not entitle him to a direct appeal to the Supreme Court on the ground that he has been deprived of his property and liberty without due process of law, where such orders were made after a hearing upon matters regularly at issue between the parties.</p>

<p>1. Fraud—when negligence of purchaser in examining land is no defense to a suit to set aside deed for fraud. The fact that the purchaser of a large tract of western land went to see it before buying does not furnish the defense of negligence in her examination of the land when she subsequently brings suit to set aside the deed for fraud, where the evidence shows she was an aged woman having no knowledge of land or its value; that the three men who accompanied her, one of whom was her trusted agent, were all financially interested in selling the land, the agent being secretly in the vendor’s employ; that they all made false representations as to the character and value of the land, which she believed; that she was on the land only about half an hour, during which time she was seated in an automobile, and that only a small portion of the land,—its best part,—was shown to her.</p> <p>2. Same—when finding of chancellor as to misrepresentations in land deal will not be disturbed. On writ of error to review a decree setting'aside deeds because of material misrepresentations by the vendor, the finding of the chancellor that the representations were false and were known to be false at the time they were made will not be disturbed unless it is manifestly against the clear weight of the evidence.</p>

<p>Building lines—when decree does not carry out mandate of Supreme Court concerning re-construction of porches. Where the Supreme Court has held, on appeal, that certain alleged porches on an apartment house constitute a violation of a building line restriction designed to preserve the easements of light, air and vision to adjoining owners, a subsequent decree directing changes to be made which do not affect the adjoining owners nor restore such easements but leave the construction substantially as offensive as it was before, is not a compliance with the mandate of the Supreme Court and must be reversed on second appeal.</p>

<p>1. Municipal corporations—a municipality has no inherent power to require a license fee for conducting a business. A municipal corporation has no inherent power to levy a tax by requiring a license to conduct any business or occupation, but the authority to exercise such power must be expressly granted by the General Assembly or be necessarily implied for the effective execution of some power so granted, and if there is any reasonable doubt as to the extent of the power it must be resolved against the municipality.</p> <p>2. Samé—paragraph 41 of section 1 of article 5 of Cities and Villages act authorizes exercise of police power by means of a license. By paragraph 41 of section 1 of article 5 of the Cities and Villages act the General Assembly combined the power to regulate, suppress and prohibit, which arises out of the police power, with the' separate and distinct power to tax the objects and subjects therein mentioned, and authorized a municipality to exercise either power by means of requiring a license.</p> <p>3. Same—license fee exacted in exercise of taxing power is tax. A license fee exacted in the exercise of the taxing power, under paragraph 41 of section 1 of article 5 of the Cities and Villages act, is a tax, notwithstanding the statement sometimes made that a license fee exacted for the purpose of revenue is not a tax, as such statement must be understood as meaning that the license fee is not a tax in the sense of the property tax authorized by the constitution, which must be levied according to valuation.</p> <p>4. Same—police power extends to the protection of the public welfare. The police power of the State extends to the protection of the lives, health, comfort and quiet of all persons and the protection of all property within the State, and in the exercise of that power the General Assembly may authorize a municipality to suppress, license for the purpose of regulating, or prohibit any practice, trade or business endangering the public welfare.</p> <p>5. Same—the courts must decide whether an exercise of police power is reasonably necessary. It is for the courts to determine whether an attempted exercise of the police power is reasonably necessary to the public welfare, as such power is restricted by those provisions of the constitution which forbid unequal laws or an arbitrary invasion of personal rights of property, and if it is manifest that a statute or ordinance is really an invasion of property rights under the guise of a police regulation it is the duty of the courts to declare it void.</p> <p>6. Same—the game of golf is a harmless recreation and not subject to the exercise of the police power. The game of golf is a healthful and harmless recreation of the same class as lawn tennis, hockey and other like games which do not attract crowds or tend to disorder or call for police supervision, and the fact that the game has attractions which induce persons to play it does not make it a public amusement which a municipality, under the police power, may regulate by requiring the owner of the grounds where it is played to take out a license, even though a fee is charged, directly or indirectly, for the use of the grounds.</p> <p>7. Same—license fee must bear reasonable relation to additional burdens imposed on the business licensed and to expense of police supervision. The authoity of a municipality, in the exercise of the police power for the purpose of regulation, is limited to such a charge for a license as will bear some reasonable relation to the additional burdens imposed by the business or occupation licensed and the necessary expense involved in police supervision.</p> <p>8. Same—a lawful occupation which is subject to taxation may be prohibited if not licensed. The method of levying a tax, aside from a tax on property according to valuation, is a matter of form and not of substance, and where a tax may lawfully be levied on an occupation by requiring the payment of a license fee fixed by the General Assembly or the municipality authorized to levy the tax, such an occupation, though lawful in itself, may be prohibited unless licensed, in order to compel the taking out of a license.</p>

<p>1. Appeals and errors—pleas of release of errors are governed by same rules as other pleadings. The suing out of a writ of error is the beginning of a new suit, and when pleas of release of errors are filed to such action they are governed by the same rules as apply to other pleadings, and all intendments are to be taken most strongly against the pleader.</p> <p>2. Same—action of guardian in accepting benefits of decree for ward will not operate as a release of errors. A guardian cannot, without the authority of the proper court, consent to the entry of a decree involving the ward’s title to real estate, and his action in acquiescing in the decree and accepting the benefits thereof for the ward will not operate as a release of errors. (Hempstead v. Broad, 275 Ill. 358, followed.)</p> <p>3. Same—when a plea of release of errors is not good. A plea of release of errors averring that a ward, after becoming of age, acquiesced in a decree involving his title to real estate by demanding a settlement from his guardian is not good, where it is not alleged that the ward ever received any of the proceeds of the decree or that he made the demand for the settlement with knowledge of the facts regarding the source from which the guardian received the money.</p>

<p>1. Base SEES—when base fee has the characteristics of a life estate. If the qualification annexed to a base fee is such that it can not be told whether or not the estate will be determined until the death of the owner thereof, then the interest taken by such owner, so far as his personal use of it is concerned, has all the characteristics of a mere life estate, with the exception that he may convey or devise his interest, and if the event does not happen which is to determine the estate such devise or conveyance will transfer title to the property.</p> <p>2. Wills—when life tenant takes base fee as survivor. Where the fee of land is given to trustees, to hold for the benefit of three named grandchildren of the testator, who are to have equal shares of the income, but there is a provision that if either of them shall die leaving issue the share of the one so dying shall descend to such issue per stirpes, and if any one shall die without issue his share shall go to the survivors, and if all die without issue then the whole estate shall go to a named son of the testator and his heirs, the survivors, in case of the death of one grandchild, take a' base or determinable fee in his share of the original devise.</p> <p>3. DowER—widow is entitled to dower in base or determinable fee. A widow is entitled to dower in a base or determinable fee of her deceased husband which has been determined under an executory devise by failure of issue, and she may recover damages for refusal to assign dower from the time of filing her bill, which may be taken as a demand.</p>

<p>1. Wills—general rule as to devise over in case of death of first taker. Where there is a devise simpliciter to one person and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, the testator will be presumed to intend a death preceding his own, but if the devise over is to take effect in case of the death of the first taker under circumstances which may or'may not take place, the devise over, unless controlled by other provisions of the will, will take effect upon the death of the first taker under the circumstances specified, either before or after the death of the testator.</p> <p>2. Same—when death without issue means death before death of life tenant. Where a gift over is preceded by a particular estate the gift over will usually take effect if the contingency happens at any time during the period of the particular estate, and in such case death without issue means death before the death of the life tenant, unless the will shows that the testator intended to refer to a later date than the termination of the life estate. (Lachenmyer v. Gehlbach, 266 Ill. 11, followed.)</p> <p>3. Same—construction of gift over to survivor in case of death, without issue, of one of two grandchildren. Where a testator gives a life estate in land to his wife, and provides that after her death his two grandchildren shall receive for their benefit the income from certain property until the younger is twenty-one years old, when each shall take a certain part of the land in fee simple, but if either shall die without issue the survivor shall take his share, death without issue means death during the existence of the two particular preceding estates and hence prior to the time the younger grandchild shall be twenty-one years old.</p>

<p>1. Constitutional law—the act of June 29, 1915, pensioning county officers, is constitutional as to certain employees. The act of June 29, 1915, providing a pension fund for officers and employees in counties of 150,000 or more inhabitants, does not apply to public county officers who are elected to their offices by the voters of the county but applies to all other permanent officers and employees of the county except as provided in the act, and as to all such officers and employees the act is constitutional, except where the constitution has taken the control of an office and the officers from the legislature. (Hughes v. Traeger, 264 Ill. 612, followed.)</p> <p>2. Same—act of June 29, 1915, pensioning-county officers, is unconstitutional as to deputies and assistants in Cook county. The salaries of deputies and assistants to county officers in Cook county are by section 9 of article 10 of the constitution subject to the control of the county board of said county and not to the control of the legislature, and as to such deputies and assistants the act of June 29, 1915, pensioning county officers, is unconstitutional.</p> <p>3. Same—fact that act of 1915 is invalid as to certain officers is not ground for holding it invalid in toto. The fact that the act of 1915, pensioning officers and employees in counties of 150,000 or more inhabitants, is invalid as to deputies and assistants in Cook county is not ground for holding it invalid in toto.</p> <p>4. Offices—in absence of constitutional provision the legislature has control of public offices. The legislature has complete and absolute power not only over public officers and officials but also over the compensation attached to the office and the manner and character of its duties and their performance, in the absence of a constitutional provision limiting that power or placing it elsewhere.</p>

<p>1. Medicine and surgery—term “practicing medicine” does not necessarily mean using drugs. The term “practicing medicine” is not limited to the use of drugs or substances supposed to possess curative or remedial properties but includes the treatment of disease for the purpose of cure, whether such treatment involves the use of drugs or not, and, in common acceptation, anyone whose occupation is the treatment of diseases for the purpose of curing them is a physician.</p> <p>2. Same—the word “physician” in the Vital Statistics act, includes licensed osteopaths. Section 15 of the Vital Statistics act, requiring every physician to register his name with the local registrar of the vital statistics registration district, includes osteopathic physicians having certificates from the State Board of Health, and such a physician is entitled to have his name registered and may make the certificate of death which the act specifies shall be made by a “legally qualified physician.”</p>

<p>1. Deeds—what is sufficient consideration for conveyance from a parent to a child. A consideration of one dollar and natural love and affection is sufficient to support a conveyance from a parent to a child.</p> <p>2. Same—burden is on complainant to show that deed absolute on its face was intended as a mortgage. The burden of proof is upon the complainant in a bill to set aside a deed to prove his claim that the deed, which is absolute upon its face, was intended as a mortgage, and the evidence must be clear and convincing.</p> <p>3. Res judicata—when decree registering title is a bar to bill to set aside deeds. Where a father conveys land to his children, who in turn convey their interests to one of their number as trustee, who makes application to register his title as trustee, the decree registering such title will bar a bill by the father to set aside the deeds where he was an occupant of the land at the time the application to register title was filed, and, under the statute, was therefore a necessary party to such proceeding but does not appear to have taken any action therein.</p> <p>4. Evidence—when testimony in support of an amendment to- a sworn bill will be given little weight. Testimony in support of an amendment to a sworn bill will be given little weight where the amendment is not sworn to, is contradictory to the facts alleged in the original bill and sets up facts which must have been known to the complainant at the time of the filing of the original bill, which was in his possession several days before subscribing and swearing to it and where such testimony is contradicted by the defendants.</p> <p>5. Masters in chancery-—when allowance to master for examing questions in issue is excessive. An allowance of $250 to a master in chancery in Cook county for five days spent in securing files, considering the evidence, hearing arguments and making up his report in a case where a part of six different days was consumed in taking the testimony is excessive.</p> <p>6. Same—party against whom master’s fees have been taxed as costs should not be deprived of right of appeal by summary contempt proceedings. Under the statute the master’s fees in a chancery suit are in the nature of costs and should be allowed and taxed as such, and any party who deems himself aggrieved either in respect to the amount allowed or as to the party against whom they are taxed has his right of appeal from that portion of the decree fixing and taxing such costs, and should not be deprived of this right by summary contempt proceedings to enforce the decree.</p> <p>7. Solicitors'’ pels—solicitor’s fees cannot be taxed as costs in chancery in absence of statute. Solicitor’s fees cannot be taxed as costs against the unsuccessful party in a chancery suit in the absence of a statute making provision for such allowance.</p> <p>8. Costs—when costs shotild not be paid out of the trust fund. Where a father conveys land to his children upon the agreement that the property is to be theirs absolutely if they pay the debts of the father and furnish support for himself and wife, and the children subsequently convey their interests to one of their number as trustee, who registers his title as trustee, the fund in the hands of such trustee after selling a portion of the property and paying the father’s debts should not be charged with any portion of the costs properly chargeable to the, father in his subsequent proceeding to set aside the deeds, where no claim is made that the children are not keeping their part of the agreement.</p>

<p>Appeals and errors—perfecting an appeal is a waiver of pending motion to vacate the judgment. Praying for and perfecting an appeal during the pendency of a motion to vacate the judgment waives the motion and deprives the trial court of jurisdiction to enter any order thereon, and the appeal is therefore from a final judgment notwithstanding the pendency of such motion.</p>

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

<p>1. Deeds—zoords “bodily heirs” mean the same as “heirs of the body.” The words “bodily heirs,” when used in a deed, mean the same as “heirs of the body,” and whichever expression is used there is no difference in the effect of the deed.</p> <p>2. Same—-conveyance to grantee “and her bodily heirs” gives grantee only life estate. Under section 6 of the Conveyances act a deed conveying land to a grantee “and her bodily heirs” gives the grantee only a life estate with remainder in fee to the heirs of her body, with a reversion, in case of failure of issue, in the heirs-at-law of the grantor.</p> <p>3. Same—when habendum clause does not show an intention to convey a fee. Where the granting clause of a deed conveys land to the grantee “and her bodily heirs,” subject to a life estate in the grantor, the estate of the named grantee will not be enlarged to a fee by the habendum clause, which provides that at the grantor’s death the property is to go into full ownership and control of the grantee “or her heirs,” where there is nothing in the deed to indicate an intention to give a present estate to the “bodily heirs,” which would require holding the grant to the bodily heirs void for uncertainty. (Duffield v. Duffield, 268 Ill. 29, distinguished.)</p> <p>4. Same—the habendum clause will be rejected if irreconcilable with granting clause. The habendum clause in a deed may under certain circumstances, as where the granting clause does not mention the estate conveyed, have the effect of explaining and declaring the intent of the grantor as to what estate he intended to convey, but if the habendum clause is irreconcilable with the granting clause it will be rejected.</p> <p>5. Same—a deed is more strictly construed than a will. In a deed the grantor is presumed to intend what his words import, and less latitude is permitted in construing a deed than a will.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. Julius Kern, Judge, presiding.</p>

<p>1. Mandamus'—what is a proper signing of mandamus petition. Where a petition for mandamus is subscribed and sworn to by the petitioner, although his affidavit and signature appear below the signature of his counsel, the petition is sufficiently signed.</p> <p>2. Same—mandamus is a proper remedy to compel expunging of void order by court. Where the circuit court has entered a void order setting aside a judgment releasing the petitioner from custody in a habeas corpus proceeding, a petition for mandamus to compel the court to expunge the void order is a proper remedy.</p> <p>3. Habeas corpus—judgment in habeas corpus proceeding can not be reviewed in mandamus proceeding where court had jurisdiction. Whether a judgment in a habeas corpus proceeding is warranted by the testimony or whether it is erroneous are questions which cannot be reviewed in a proceeding by petition for mandamus to compel the expunging of a void order setting aside said judgment, where the court had jurisdiction of both the subject matter and the parties in the former proceeding.</p> <p>4. Same—habeas corpus is proper remedy where inmate has recovered from insanity but authorities have failed to release him. A writ of habeas corpus is a proper remedy where a prisoner in a hospital for the criminal insane has fully recovered his sanity but the authorities have failed to release him, as he is entitled to his discharge even though the medical superintendent of the asylum and the board of administration have failed or neglected to adjudge him a fit subject to be discharged, and said authorities are bound to act in such case without a demand or request that the prisoner be released.</p> <p>5. Same—circuit judge cannot, in vacation, enter order setting aside a judgment in a habeas corpus proceeding. The circuit court or judge who has rendered a judgment in a habeas corpus proceeding cannot, after the term has adjourned and during the vacation, vacate or set said judgment aside.</p>

<p>Writ OB Error to the County Court of Pope county; the Hon. W. A. Whiteside, Judge, presiding.</p>

<p>1. Attorney and client—what contract.is void as contrary to public policy. A contract between attorney and client whereby the attorney agrees to render his services in controlling or advising with a relative of the client so as to prevent her from disinheriting him and to secure by such means a .portion of her property for the client is void, as contrary to public policy.</p> <p>2. Same—rule where attorney purchases property from client. Where an attorney purchases property of his client, it is not necessary, in order to avoid the conveyance, to show fraud or imposition but the burden is on the attorney to show perfect fairness, adequacy and equity in the transaction, and upon his failure to make such proof a court of equity will treat the case as one of constructive fraud.</p> <p>3. Fraud—heirs may maintain a bill to set aside a deed obtained by fraud. In Illinois the right of a grantor to repudiate a conveyance for fraud descends to his heirs and may be exercised by them whether the fraud is actual or constructive, and a bill by heirs of a grantor alleging that the defendants, while acting as the attorneys of the grantor, acquired a conveyance of his property by undue influence and for an inadequate consideration, requires answer and proof by the defendants.</p> <p>4. Deeds—wife joining in conveyance of husband's property is not bound by covenants. A wife who has nothing but an inchoate right of dower in her husband’s property does not, by joining in a warranty deed to his land and in an assignment of his interest in personal property, become bound by the covenants of warranty contained in such instruments.</p> <p>5. Equity—bill to set aside deed should offer to return the consideration, with interest. A bill by heirs to set aside a deed of their ancestor to his attorneys for constructive fraud should offer to return the actual cash consideration, with interest.</p> <p>6. Pleading—law presumes intestacy in absence of allegations to the contrary. In alleging title by descent it is not necessary to allege intestacy of the ancestor, as such intestacy is presumed in the absence of allegations to the contrary, and even though the ancestor left a will it will be presumed that his heirs took his land until the proof shows that the will was executed so as to pass real estate and that its contents were inconsistent with the claim of the heirs.</p> <p>7. Same—what is a sufficient allegation of the title of the heirs. An allegation that a person acquired title to land and that he died leaving heirs is a sufficient allegation of the title of the heirs, and it is no more necessary to allege that he died without having executed a will than that he died without having executed a conveyance of any other kind.</p>

<p>1. Schools—when ride of board of education does not impair teacher’s contract of employment. A rule of the board of education of the city of Chicago prohibiting teachers from being members of or affiliated with trade unions, adopted after the election of teachers in June but before the opening of the school year, does not impair the contracts of employment of such teachers where the election is a mere offer of employment subject to the rules of the board, which is accepted by the teachers appearing for duty on the first day of school.</p> <p>2. Same—board of education of city of Chicago cannot employ teachers for more than one year. Under the statute the board of education in cities having a population of 100,000 or more has no power to make contracts for the employment of teachers to extend beyond the ensuing school year.</p> <p>3. Same—board of education of city of Chicago may refuse to employ teachers belonging to trade unions. The board of education of the city of Chicago has a right to employ as a teacher any qualified person it chooses and may adopt a rule forbidding the employment of any teachers who are members of or affiliated with trade unions, as neither the constitution nor the statute places any restriction on the power of the board in such respect.</p> <p>4. Same-—contribution to teachers’ pension fund does not give teacher any right to be re-employed. The fact that a teacher in the schools of the city of Chicago has contributed to the teachers’ pension fund does not give such teacher any right to be re-employed, nor does it restrict the board of education in its right to select such persons as teachers as it may desire to employ.</p>

<p>Highways—when question whether an alley is public or private is one of fact. Where an alleyway was never laid out or recognized by the public authorities as a public alley, the public records showing no plat or map of the same, the question whether it is a public or private alley is one of fact, to be determined from the nature of the use of it by the public, and) a decree approving the master’s finding, from oral testimony, that such alley is private because the use by the public was by permission, will be sustained unless clearly contrary to the weight of the testimony.</p>

<p>1. Carriers—section 1 of act regulating transportation of grain requires weighing the grain regardless of desire of shipper. The requirement of section 1 of the act regulating the transportation of grain (Hurd’s Stat. 1916, p. 2092,) that railroads shall accept grain for transportation “when desired by the shipper” has no application to the requirement that the grain shall be weighed, and such grain must be weighed regardless of the desire of the shipper.</p> <p>2. Same—the statute, requiring railroad companies tb maintain scales for weighing grain is not unconstitutional. The constitution provides that railroad companies shall weigh grain where it is shipped, receipt for the full amount and be responsible for the delivery of that amount, and section 2 of the act relating to the transportation of grain, which requires that railroad companies shall maintain scales for such weighing at places where the shipments amount to 50,000 bushels a year, is therefore not invalid as special or class legislation.</p> <p>3. Same—statute making sworn statement of shipper conclusive as to weight is unconstitutional. The provision in sections 1 and 2 of the act regulating the transportation of grain, (Hurd’s Stat. 1916, p. 2092,) making the sworn statement of the shipper conclusive as to the weight of the grain shipped where the carrier has neglected or refused to weigh the same, is unconstitutional, as the legislature has no power to make such sworn statements conclusive evidence.</p> <p>4. Same—term “sworn statement” as to weight of grain refers to affidavit as well as oral testimony. The term “sworn statement,” used in the act fpr the regulation of the transportation of grain, refers to a statement in form of an affidavit as well as to oral testimony on the witness stand.</p> <p>5. Same—action by shipper for loss in weight of grain shipped is not a suit on the bill of lading. An action by the shipper against the carrier to recover for loss in weight of grain shipped, due to a failure to safely carry the grain, is not a suit on the bill of lading, and such action may be brought for loss in an inter-State shipment due to the defendant’s negligence, without regard to the provisions of the Carmack amendment.</p> <p>6. .Same—clause in a bill of lading exempting carrier from liability for difference in weights of grain is contrary to public policy. A clause in the conditions on the back of a bill of lading exempting the carrier from liability for difference in the weights of grain caused by discrepancies in elevator weights is contrary to public policy.</p> <p>7. Same—object and meaning of section 4 of article 13 of constitution, regarding transportation of grain. Section 4 of article 13 of the constitution, requiring the weighing of grain by carriers, is intended to protect shippers and producers against short weights in delivery, and means that the railroad company or carrier shall be responsible for the delivery at destination of the full weight of grain received unless excused by the act of God or the public enemy or the negligence of the shipper but is not intended to make the carrier an insurer.</p> <p>8. Constitutional law—authority of legislature to- establish rules of evidence. The legislature may establish rules of evidence and declare that a fact from which an inference of another fact may reasonably be drawn shall be regarded as evidence of the latter fact, but it cannot declare that the existence of the first fact shall conclusively establish the existence of the second.</p> <p>9. Same—when constitutional part of an act will be given effect and the unconstitutional part disregarded. The constitutional part of a statute will be given effect and the unconstitutional part disregarded provided the unconstitutional part is of such a character that it may be inferred the legislature would have passed the act without it, but the question is one of legislative power and not of verbal form.</p> <p>10. Affidavits—when it may be inferred that affidavits were made upon personal knozvledge. Where witnesses who have previously made affidavits as to certain facts giving rise to the suit tes-" tify on the trial that they are unable to recall all the circumstances but that they have access to memoranda from which they can refresh their memory it may be inferred that the affidavits were made upon personal knowledge.</p>

<p>1. Disbarment—object of a disbarment proceeding. The disbarment of an attorney is not punishment for crime nor for the purpose of enforcing remedies between parties nor merely to bring the attorney before the court for a reprimand, but the object of the proceeding is to remove a person shown to be unfit for the discharge of the duties of the office of attorney and to protect the courts and the public.</p> <p>2. Same—attorney may be disbarred for acts not occurring in the discharge of the duties of his profession. An attorney’s unfitness to continue in the profession may be shown by acts not occurring in the discharge of the duties of his profession, and whenever he commits an act which shows such want of professional or personal honesty as renders him unworthy of public confidence it affords sufficient ground for his disbarment. (People v. Allison, 68 Ill. 151, and People v. Appleton, 105 id. 474, overruled.)</p> <p>3. Same—if the misconduct is a crime the attorney need not be indicted before he can be disbarred. It is the immoral or dishonest act of an attorney that justifies his disbarment, and it is not necessary that his misconduct subject him to indictment, or that, if the misconduct amount to a crime, he shall be prosecuted and convicted before disbarment; but where the act charged is a crime and there is a denial of the act and the testimony is conflicting, courts should exercise the power to disbar with great caution.</p> <p>4. Same—good moral character required upon admission to the bar must continue throughout an attorney’s professional career. A good moral character is essential to admission to the bar, and if, after an attorney’s admission, it is shown that he has forfeited or does not possess such good moral character it is the duty of the court to revoke his license.</p> <p>5. Same—attorney may be disbarred for appropriating money entrusted to him in his private capacity. Where an attorney has appropriated to his own use money entrusted to him, not as an attorney but in his private capacity, and admits doing so but pleads hard times and an intention to pay it back, he may be disbarred although he finally paid the money after complaint was made and before the hearing before the commissioner.</p>

<p>1. Contracts—when a contract between attorney and client is contrary to public policy. A contract between an attorney and his client by which the attorney undertakes to render legal services in controlling or advising with an owner of property to prevent her from disposing of her property in such manner as to disinherit the client and to secure to him certain rights and interests in her property before her death is contrary to public policy.</p> <p>2. Same—courts will not aid either party to an illegal contract. Where a transaction is tainted with fraud as between the parties to it the courts will not assist either but will leave them in the position in which it finds thern.</p> <p>3. Partition—party who acquires interest in property by illegal contract cannot base bill for partition thereon. An attorney who has contracted to render services to control the disposition of property by the owner thereof for the benefit of certain relatives in consideration of his receiving a portion of the property, and has carried out his agreement by inducing the property owner to sign a trust deed disposing of the property in accordance with the desires of the relatives, cannot rely upon the contract as showing his right to partition of the property.</p>

<p>Disbarment—when testimony is directly contradictory the decision must rest on the credibility and not on the number of witnesses. Where there is a direct contradiction between the witnesses as to whether money collected by an attorney was turned over to a client the decision as to the truth of the matter must rest upon the credibility of the witnesses and such circumstances of corroboration or discredit as are proven by other testimony and not merely upon the number of witnesses testifying to any fact.</p>

<p>Writ or Error to the County Court of Pope county; the Hon. W. A. Whiteside, Judge, presiding.</p>

<p>1. Waters—riparian rights of owner of land on shore of Rake Michigan. The riparian rights of an owner of land adjoining the waters of Lake Michigan are the right of accretion and the right of access to the water from his land, as the State holds the title to the bed of the lake.</p> <p>2. Eminent domain—extent of estate taken by right of eminent domain is no greater than is necessary for the public purpose. The grant of power to take the land of an individual by the exercise of the right of eminent domain is strictly construed, and where the estate to be taken is not expressly defined, only such an estate will vest as is necessary to accomplish the purpose in view, even though it be only an easement.</p> <p>3. Parks—act of 1871 does not give park commissioners the fee of land condemned for driveway. The act of 1871, under which the land needed for the construction of. Sheridan drive by the commissioners of Lincoln Park was condemned, does not provide that the-commissioners shall acquire the fee to the land, and as an easement was all that was necessary for the public purpose for which the land was taken, the commissioners acquired an easement, only, and not the fee.</p> <p>4. Laches—when a land owner is guilty of laches in asserting his riparian rights. Where a portion of a lot lying next to the shore of Lake Michigan is condemned by park commissioners for a driveway, and the driveway is constructed not only over the portion of the lot condemned but also, in part, over the submerged land in the lake, the riparian rights of the lot owner with respect to accretions and access to the lake are at once destroyed and he has an immediate right of action for compensation, but if he acquiesces in such condition for more than twenty years he is barred by laches from maintaining a bill to enjoin the further filling in of the submerged land for park purposes.</p>

<p>1. Banks—stockholder is personally liable to creditor of bank in a sum equal to amount of stock owned by him. The liability of a stockholder in a bank to have his property taken for the. debts of the bank includes both the amount which he has invested in his stock and a like amount for which he is declared personally and individually liable by the constitution, but it is only for the latter amount that he may be sued by any creditor. (Dupee v. Swigert, 127 Ill. 494, explained.)</p> <p>2. Same—a stockholder is liable to the creditors only for obligations incurred while he is a stockholder. The clause of section 6 of article 11 of the constitution confining a stockholder’s responsibility to liabilities “accruing” while he remains a stockholder, means that the persons who were stockholders of the bank at the time credit was extended to it or a liability was incurred by it shall be individually and personally liable, as partners, to the creditors for an amount equal to their stock but not for liabilities previously incurred.</p> <p>3. Same—capital stock and surplus must be paid in in cash before State Auditor is authorised to issue a certificate. Before the State Auditor’s certificate authorizing a bank to commence business can be issued under section 5 of the Banking act the capital stock and surplus must be paid in in cash; and the fact that a national bank is being liquidated and re-organized into a State bank, the stockholders exchanging their stock share for share, does not authorize the Auditor to waive the statutory requirement and issue his certificate for the new bank to commence business unless he is satisfied it possesses in cash the amount of its capital and surplus.</p> <p>4. Same—object of the Banking act is to protect depositors and creditors. The provision of the Banking act requiring the possession of.the whole amount of capital and surplus in cash at the organization of a bank is for the protection of creditors and depositors, and the creditors have a right to rely upon the capital as a fund whereby the bank’s indebtedness is secured and any loss incurred in its business may be made good.</p> <p>5. Same—one who enables a bank to evade the statute requiring the capital stock and surplus to be paid in in cash is liable to creditors. If a person or another bank temporarily furnishes the cash or otherwise enables a new bank to evade the statute requiring-the capital stock and surplus to be paid in in cash, he or it is liable to creditors of the bank to the extent of the then existing deficit of the capital and surplus, regardless of the -question of fraud, and upon the failure of the bank the receiver may, in equity, enforce such liability; and the creditors also have such right of action primarily, in addition to their rights against the stockholders.-</p> <p>6. Same—when a creditor may maintain bill in behalf of other creditors and against all stockholders of an insolvent bank. A bill may be maintained by creditors of an insolvent banking corporation, on behalf of themselves and other creditors, against all the stockholders to enforce the personal liability of such stockholders, to enjoin the prosecution of suits by individual creditors against individual stockholders, to have account taken of all the liabilities of the bank, to establish the amount for which the various stockholders are liable, and to have the amount of debts proved apportioned among the stockholders.</p> <p>7. Same—stockholders’ liability to creditors is a several and individual liability on the part of each stockholder to each creditor. The stockholders’ liability to the creditors of a banking corporation is created by the constitution and is a several and individual liability on the part of each stockholder to each creditor and not a liability to the corporation or the creditors of the corporation as a class, and it is the creditors, alone, who can enforce such liability.</p> <p>8. Same—a receiver acquires title to corporate assets, only. A receiver of an insolvent banking corporation acquires title, through the corporation, to corporate assets, only, and as to such assets he represents the creditors, but not in relation to individual property.</p> <p>9. Same—provision of section 11 of Banking act authorising receiver to enforce stockholders’ liability to creditors is invalid. The provision of section 11 of the Banking act authorizing the receiver of an insolvent bank to enforce the stockholders’ liability to creditors is invalid, as it is not within the legislative power to confer upon a receiver appointed in a suit brought by a public officer for the dissolution of a banking corporation, authority to enforce the rights of creditors of the bank as to indebtedness due them individually and compel stockholders to pay to the receiver their individual liabilities to such creditors.</p> <p>10. Same—transfer of stock must be recorded on the books of bank to relieve former stockholder of his liability. Under section 6 of the Banking act, providing for a public record of all stockholders and requiring all transfers to be recorded within ten days after the transfer is made, stock can be transferred only on the books of the bank, and only those persons have the rights and liabilities of stockholders who appear to be such on the books, and in order to be relieved of responsibility as a stockholder, one who sells his stock must comply, with the statutory requirements for the transfer and make a demand upon the bank that the transfer be recorded.</p> <p>11. Same—brokers and pledgees of stock are liable if they appear on the books as stockholders. Persons who, as brokers, hold stock for the benefit of their customers, or as pledgees to secure advances of money, if they appear on the books of the bank as stockholders will be liable to creditors of the bank.</p> <p>12. Same—what is a ratification of purchase of bank stock by agent of partnership. Where the agent of a partnership dealing in commercial paper makes an unauthorized purchase of bank stock in the name of the firm for the benefit of a customer, the stock being transferred to the firm on the books of the bank, the acceptance of a commission from the customer by a member of the firm will amount to a ratification of the transaction and the. partnership will be liable as a stockholder.</p> <p>13. Same—section 23 of general Incorporation act does not apply to banking corporations. Section 23 of the general Incorporation act not having been submitted to a vote of the people, as provided in section 5 of article 11 of the constitution, with respect to statutes relating to corporations with banking powers, does not apply to banking corporations.</p> <p>14. Same—stockholders are determined by the record of bank and not the record in the recorder’s office. The record by which it is determined who are the stockholders of a bank is the record of the bank itself and not the record in the recorder’s office, as stockholders are held liable, not because of actual notice to any particular creditor that any particular person is a stockholder, but because the law imposes the liability.</p> <p>15. Same—estate of testator is not liable as stockholder where executors have no authority to invest in bank stock. Where a testator gives all his property to his executors, with “full power and authority to manage and control said property as they may in their judgment deem for the best interest of my estate until the same is finally disposed of and distributed as hereinafter directed,” but with no specific directions as to the kind of investment, the executors’ power of investment is limited to real estate or government securities, and they cannot, by investing in bank stock, impose upon the estate the liability of a stockholder.</p> <p>16. Same—a stockholder who has paid for his bank stock twice is still liable to creditors. The fact that a stockholder who has paid for his stock in a national bank pays for it again in cash upon the re-organization of the bank into a .State bank will not relieve him of the super-added liability created by the constitution in favor of the creditors of an insolvent bank, as such liability, being to the creditors, cannot be satisfied by payment to the bank itself; but the stockholder is entitled to a claim against the bank for the money so paid.</p> <p>xy. Corporations—stockholder of a corporation is personally liable only by statutory provision. At common law a stockholder of a corporation was not responsible personally for any of the liabilities of the corporation, and he can be held liable only because of some constitutional or statutory provision.</p> <p>18. Same—neither foreign nor domestic corporation can hold stock in another corporation. A domestic corporation is not authorized to hold stock in another corporation, and a foreign corporation can exercise no powers in this State which cannot be lawfully exercised by a domestic corporation.</p> <p>19. Same—a corporation which has unlawfully purchased stock of another corporation may make defense of ultra vires. If the act of a corporation in subscribing for the stock of another corporation is beyond its power the transaction is void, and the corporation may make the defense of ultra vires to a suit to enforce its liability as a stockholder even though it has benefited by the transaction, as such liability, though created by the constitution, is based upon contract.</p> <p>20. Interest—in equity, interest is allowed because of equitable considerations. In equity, interest is allowed because of equitable considerations, and is given or withheld as under all the circumstances of the case seems equitable and just.</p>

Writ of Error to the Appellate Court for the Eirst District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding.

<p>Drainage—what contract for construction of a drain by mutual agreeinent is not in violation of the act of June 4,1889. The act of June 4, 1889, providing that when a drain is constructed by mutual agreement it shall be unlawful for any of the parties thereto to permit a connection with the drain without the consent of all the parties, is merely intended to protect parties who have made no other agreement, and does not prohibit the making of an original contract by all the parties interested, authorizing certain of their number, for reasons deemed sufficient, to make their own terms for connection by other land owners with the main or lateral drains.</p>

<p>1. Wiees—executory interest to arise in future needs no particular estate to support it—base fees. Where a testatrix, after devising a fee to a certain devisee, qualifies it by providing that in case of his death without issue the estate shall be sold and the proceeds distributed to the brothers and sisters of the testatrix and two named persons, the devisee takes a base or determinable fee, and the executory interest to arise in the future is valid and needs no particular estate to support it.</p> <p>2. Same—executory devise is indestructible except by a failure of the contingency upon which it is to take effect. An executory devise can only be destroyed by a failure of the contingency upon which it is to take effect, and at common law it could not be prevented from taking effect when the contingency happened, either by fine and recovery or in any way by which contingent remainders could be destroyed, and where the first taker is given a base fee the determinable quality of the fee follows any transfer by him, including a sale of the land for taxes, and the executory devise is not affected.</p> <p>3. .Same—a limitation over of chattels by way of executory devise is good. Where a testatrix gives certain land to a named person and provides that at his death without issue the land shall be sold and the proceeds divided among certain persons, the executory devise, although a limitation over of chattels, is «good.</p> <p>4. Same—an executory devise is an interest in the estate although it is never vested before the coming into possession. An executory devise, before coming into possession, is never vested, but it is above the grade of a mere possibility and is regarded as a certain interest in the estate.</p> <p>5. Same—when an executory devise is transmissible and when not. If the persons to whom an estate is to pass by executory devise are not ascertainable until the contingency happens the executory interest is not transmissible, because it cannot be known until then in whom the interest will vest, but if the identity of the ex-ecutory devisee is certain and the object of the devise is fixed the future interest is assignable and transmissible.</p> <p>6. Same—effect where an executory devise is to a class. If an executory devise is to a class, those members of the class who are in being when the gift takes effect will take all to the exclusion of .pre-deceased members of the class, with the statutory exception in favor of a child or grandchild who shall die before the testator and where no provision is made for the contingency.</p> <p>7. ■ Same—when devisees constitute a class. A class, in its ordinary acceptation, is a number or body of persons with common characteristics or in like circumstances or having some common attribute, and, as applied to a devise, it is generally understood to mean a number of persons who stand in the same relation to each other or to the testator and who are uncertain in number at the time of the gift; but the language of a will must disclose an intention to create a class or the beneficiaries will take distributively.</p> <p>8. .Sams—when an executory devise is not a gift to a class. An executory devise is not a gift to a class where at the time of making it the number of devisees is certain and the share each is to receive is also certain and in no way dependent for its amount on the members surviving when the contingency happens.</p> <p>9. Sams—devise to brothers and sisters and two named persons is not to a class. Where a testatrix devises certain land to a named devisee, and provides that in case of his death without issue the land shall be sold and the proceeds divided among the brothers and sisters of the testatrix, who were old people and definitely ascer- • tained, and to two other named devisees, the executory devise is not a gift to a class and the executory interest thereunder is transmissible and descendible.</p>

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

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

<p>1. Workmen’s compensation—whether an undertaker is engaged in the business of "carriage by land” is a question of law„ Where there is no conflict in the testimony, the question whether an undertaker who lets his cars and drivers to another undertaker for the carriage of passengers at funerals is engaged in the occupation of “carriage by land,” within the meaning of the Workmen’s Compensation act, is a question of law.</p> <p>2. Same—undertaker is not engaged in extra-hazardous occupation because he uses vehicles to carry passengers to funerals. The undertaking business is not an occupation which is included in the Workmen’s Compensation act as extra-hazardous, and the operation of vehicles to carry persons to funerals and burials conducted by an undertaker does not bring the business within' the extra-hazardous occupation of “carriage by land” within the meaning of the statute.</p> <p>3. Same—undertaker who occasionally lets his cars to another undertaker is not engaged in the business of "carriage by land.” An undertaker who occasionally lets his cars and drivers to another undertaker for use at funerals does not thereby become a carrier of passengers by land, within the meaning of the Workmen’s Compensation act. (Parker-Washington Co. v. Industrial Board, 274, Ill. 498, distinguished.)</p>

<p>1. Freehold—a freehold is involved if its existence is in issue by the pleadings. A freehold is involved not only where one party will gain and another lose a freehold by the decree, but whenever the existence of a freehold is put in issue by the pleadings and must be decided.</p> <p>2. Deeds—forfeiture is the only remedy for breach of conditions subsequent. The acceptance of a deed poll by a grantee conveying land and containing covenants to be performed by him, followed by his entering into possession, binds him to the performance of the covenants the same as if he had signed the deed, and the grantor may recover for breach of the covenants: but where there are no agreements or covenants but merely conditions subsequent, the only remedy for a breach of the conditions is a forfeiture of the estate conveyed and its re-investment in the grantor.</p> <p>3. Same—court cannot decree specific performance of condition subsequent. A condition subsequent in a deed differs from a covenant in that a breach of the covenant calls for a recovery in damages while a breach of a condition works a forfeiture of the estate, and while the court, in a proper case, may specifically enforce a covenant it cannot compel the performance of a condition in a deed the breach of which works a forfeiture of the estate.</p> <p>4. Same—when condition in a deed will not be construed to be a covenant. In case of doubt as to whether a provision in a deed is a condition subsequent or a covenant it will be construed to be a covenant to prevent the destruction of the estate, but where the provision contains an express stipulation for the forfeiture of the estate in case of a breach and its immediate vesting in the grantor there can be no doubt that the parties intended to create a condition subsequent.</p> <p>5. Same—when equity will relieve against the consequences of a breach of condition. Equity will relieve against the consequences of a breach of condition and save from forfeiture an estate which has vested and is in danger of being defeated by a failure to perform a condition subsequent, when the breach was not willful, when the injury can be adequately compensated in damages and when there is a certain rule by which to measure the damages.</p> <p>6. Same—where right to a forfeiture for breach of condition is waived, equity may enjoin suit in ejectment by the grantor. The grantor may waive the right to a forfeiture for breach of a condition subsequent in a deed, and when such right is once waived it cannot be revived by a change of mind or by subsequent events, and in such case a court of equity may enjoin a suit in ejectment by the grantor to recover the land.</p> <p>7. Same—waiver of forfeiture for breach■ of condition may be by parol. The waiver of a forfeiture for breach of a condition in a deed may be by parol even though the instrument is under seal, and where the grantor does any act inconsistent with his reliance on the condition his act amounts to a waiver of the condition so as to preclude him from afterward availing himself of the forfeiture.</p>

<p>1. Registration of title—party introducing abstract of title in evidence must prove maker was reputed to be an abstracter at time abstract was made. Section 18 of the act concerning land titles requires that the party introducing an abstract of title in evidence before the examiner must prove that the signature “is” genuine and that the maker “was” reputed to have been engaged in the abstract business at the date shown on the abstract, and evidence in regard to such reputation at the time of hearing is not competent.</p> <p>2. Same—genuineness of original abstract must be established before copy can be introduced. Section 18 of the act concerning land titles makes the statement of the maker of the copy of an abstract of title prima facie evidence of the correctness of the copy, only, and does not make it proof of the genuineness of the original abstract or of the business of the maker at time the abstract was made, and it is essential, before the copy can be introduced in evidence, to establish the existence and genuineness of the original.</p> <p>3. Same—what sufficient evidence that premises were occupied when application zvas filed. In a proceeding to register title, testimony of a surveyor that he surveyed the property a few weeks before the application was filed and found it occupied with several sheds, a fence and a one-story building, and of another witness that he examined the premises a few weeks after the application was filed, knew who resided on the adjoining lot and that such resident occupied some of the sheds on the premises in question, is sufficient to show that the premises were occupied by such person at the time the application, which alleged occupancy by such person as a tenant at will, was filed.</p>

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

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

<p>1. Criminal law—ownership of property must be alleged with same accuracy in embezzlement as in larceny. Unless the rule is modified by statute the ownership of property must be alleged with the same accuracy in embezzlement as in larceny.</p> <p>2. Same—indictment for embezzlement, under section 75 of the Criminal Code, must allege taking of money “zvithout the consent of his company or his employer.” Section 75 of the Criminal Code, relating to embezzlement, was framed to cover co-partnerships regardless of the business in which said co-partnerships might be engaged, and an indictment for embezzlement under said section must charge that the defendant took the money “without the consent of his company or his employer.”</p> <p>3. Same—what must be alleged and proved where embezzlement of partnership property is charged. An indictment for embezzling partnership property must allege the ownership to be in the firm and set out the names of the partners, and the names of the partners must be proved as alleged, as a partnership is not a legal entity apart from the individual members; but if the defendant is a member of the firm the indictment must show that he had no interest in the property.</p> <p>4. Same—section 76 of Criminal Code does not make a partnership a legal entity. Section 76 of the Criminal Code, regarding the embezzlement of property of banks or banking companies, does not make a partnership a legal entity, separate and apart from its membership.</p> <p>5. Same—a fiduciary relation between defendant and owner of property must be shown in indictment for embezzlement. An indictment for embezzlement must show a fiduciary relation between the defendant and the owner of the property, but it is sufficient, under section 75 of the Criminal Code, if the facts set forth in the indictment show that the defendant was a trustee or agent of the owner of the property.</p> <p>6. Same—one cannot be convicted of embezzling property in which he has an interest. To constitute the crime of embezzlement the fraudulent conversion must be of property belonging exclusively to a person other than the one charged, as a party cannot be convicted of embezzling property in which he has an interest.</p> <p>7. Same—mere proof of receipt of funds and failure to account therefor does not, in itself, prove embezzlement. Mere proof of the receipt of funds and a failure to account therefor does not, in itself, show embezzlement by an agent or servant but there must be further evidence o'f the conversion.</p> <p>8. Same—fact that a bank lost money while defendant was in charge does not show embezzlement. The mere fact that a bank lost money and that the defendant was in charge of the bank at the time it lost the money will not justify his conviction on a charge of embezzlement unless the evidence shows that he was responsible for the loss by converting the money to his own use.</p>

<p>1. Public utilities—to what extent constitution has given to a city the control of the operation of street railways. Section 4 of article 11 of the constitution gives to a city the control of the operation of street railways in its streets only to the extent of determining whether street railways shall be operated upon the streets of the city, and if so, upon what streets. ( Venner v. Chicago City Railway Co. 258 Ill. 523, and People v. City of Chicago, 270 id. 188, explained.)</p> <p>2. Same—meaning of provision of section 10 of Public Utilities act excepting public utilities owned by mimicipalities. Section 10 of the Public Utilities act, which excepts from its operation public utilities owned by municipalities, means only that public utilities owned or operated by municipalities when the act became effective shall not be subject to the provisions of the act, and that thereafter, when a municipality shall become the owner or take over the operation of a public utility, such public utility will be withdrawn from the operation of the act.</p> <p>3. Same—street railways of city of Chicago are within the provisions of the Public Utilities act. Although the city of Chicago has by contract obtained an option to purchase the street railways in the city at a price agreed upon and has been-given a voice in the management of the affairs of the street railway companies, the city is not the owner of the railway properties nor has the operation of the railway system been turned over to the city, and said railways are not within the exception contained in the definition of a public utility in section 10 of the Public Utilities act.</p> <p>4. Same—exercise of police power over public utilities does not violate, constitutional provisions protecting property rights. The regulation of public utilities is one phase of the exercise of the police power of the State, and the rightful exercise of such power over the use of private property which is devoted to public use does not violate constitutional provisions against the taking of property without due process of law and the taking or damaging of private property without just compensation.</p> <p>5. Same—when order of Public Utilities Commission does not impair the obligations of a contract between city and street railway companies. Where the street railways of a city are subject to the provisions of the Public Utilities act, an order of the Public Utilities Commission requiring only such things to be done by the railway companies as will, in the judgment of the commission, irirprove the service furnished the public, cannot impair the obligations of any contract between the city and the railway companies, as the city has no power to contract away any of the police powers delegated to it by the legislature.</p> <p>6. Same—when question of reasonableness of an order cannot be determined. The method prescribed by the Public Utilities act for determining the reasonableness of an order of the commission, is exclusive, and the question cannot be determined in a proceeding to enjoin the enforcement of the order.</p> <p>7. Same—a ptiblic utility may obtain hearing on reasonableness of order although not a party to the original proceeding before the commission. The provision for a review of the decision of the Public Utilities Commission upon an application for rehearing is the same as the provision for review of the original order, and since a public utility which was not a formal party to the original proceeding may ask for a rehearing it is not deprived of an opportunity to be heard upon the -reasonableness of the order, and is therefore not deprived of property without due process of law because of the order.</p> <p>8. PoeicE POWER—the police power is primarily vested in the legislature but may be delegated. The police power is an attribute of sovereignty and is primarily vested in the legislature but may be delegated to agencies created by the legislature, and in such case the legislature has the right to recall the power at any time from the agency to which it is delegated and to retain it or confer it upon some other agency of- government.</p> <p>9. Same—a large discretion is vested in the legislature to determine what public interests require. In the exercise of the police power the State may interfere whenever the public interests demand such interference, and in this particular a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require but what measures are necessary for the protection of such interests.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Elections—when election cannot be contested by a bill in chancery. A bill in chancery asking, among other things, for a recount of the ballots at an election in regard to a school house site is, in effect, a proceeding to contest the election, which the court cannot entertain in the absence of statutory authority; and an appeal to the Supreme Court from the decision of the court cannot be predicated upon the statutory provision for an appeal from a judgment on a petition to contest an election.</p> <p>2. Appeals and errors—question of revenue must be directly involved. To give the .Supreme Court jurisdiction of an appeal on the ground that the case relates to revenue the collection of the revenue must be directly involved in a proceeding between public officers and tax-payers, and as the question of revenue is only indirectly involved in a bill attacking an election in regard to a school house site and seeking to enjoin the use of any tax levy to purchase a school house site and erect a building, no jurisdiction exists in such case.</p>

<p>1. Contracts—vendee suing for damages for failure to deliver coal must prove payments were made or offered according to the contract. Where a contra*) for the daily delivery of a certain number of tons of coal provides that payments shall be made on the tenth day of each month for coal delivered during the preceding month, the vendee, in order to maintain an action for damages for non-delivery, must prove that the payments were made or offered according to the contract, and the mere fact that the vendor accepted a payment after it was due and after rescinding the contract will not relieve the vendee of the burden of showing performance on his part or excuse for non-performance.</p> <p>2. Same—when acceptance of overdue payment will not estop vendor to set up rescission of contract. Where the vendor has.declared a contract for daily delivery of coal rescinded for failure of the vendee to make a monthly payment when it became due, the mere fact that it subsequently accepted the payment will not estop it from insisting on the rescission of the contract as a defense of an action by the vendee for failure to make deliveries after the payment became due.</p>

Writ or Error to the 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>Appeals and Errors—the record must show that constitutional question was presented to trial court. A case cannot be brought to the Supreme Court upon ground that the validity of a statute is involved unless the record discloses that the question was in some way presented to the trial court for decision.</p>

<p>Motion for order requiring warden of Joliet penitentiary to return prisoners to custody of sheriff of Winnebago county.</p>