Volume 280 — Illinois Reports

<p>1. Criminal law—the accused cannot complain of error in his favor. Failure of the court, on sentencing a person convicted of bigamy, to impose any fine in addition to imprisonment in the penitentiary for an indeterminate term is error in favor of the accused, of which he cannot complain in a court of review.</p> <p>2. Same—neglect of accused to testify should not raise any presumption against him. Neglect of one accused of crime to testify should not raise any presumption against him, and he is entitled to have the jury instructed to that effect.</p> <p>3. Same—error which is not prejudicial is not ground for reversal. Error which is not prejudicial to the party complaining is not ground for reversal, but the weight of authority is that prejudice will be presumed unless the record shows the contrary.</p> <p>4. Same—when court zvill not give effect to presumption that error was prejudicial. Error in refusing to give an instruction stating that the neglect of the accused to testify should not raise any presumption against him is not ground for reversal, where the bill of exceptions does not contain any of the evidence and the record merely shows the existence of the error without showing there was any conflict in the testimony or anything from which the jury might, as reasonable men, have reached a different conclusion had the instruction been given.</p> <p>5. Same—when giving of instructions may be questioned without setting out all the evidence in record. Where the record states that the evidence tended to prove the issue but was conflicting, the propriety of giving and refusing instructions may be fairly presented without setting out the evidence in full.</p>

<p>1. Medicine and surgery—fitting and selling spectacles is not practicing medicine. Fitting and selling spectacles is not practicing medicine, and one who, for hire, has glasses ground and fitted but does not profess to treat dr prescribe for disease or deformity and does not give medical or surgical treatment does not practice medicine.</p> <p>2. Same—statute regulating the practice of optometry is unconstitutional. The act of 1915, (Laws of 1915, p. 695,) purporting to regulate the practice of optometry, has no apparent connection with the public health, safety, comfort or welfare and is unconstitutional as applied to the facts shown by the record in this case.</p> <p>3. PoeicE power—right of a citizen to pursue any lawful avocation cannot be restricted except by proper exercise of the police power. The police power may be exercised to regulate any trade, calling or occupation in order to promote the public health, safety and welfare, but the right of a citizen to pursue any lawful avocation cannot be otherwise limited or restricted.</p>

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

<p>1. Elections—election contest is regarded as a chancery proceeding. A proceeding to contest an election is to all intents and purposes a chancery proceeding, and except as otherwise provided by statute is governed by the rules of chancery.</p> <p>2. Practice—vuhen section 81 of Practice act does not apply. Section 81 of the Practice act, authorizing a judge who did not hear the case to sign a bill of exceptions under certain circumstances, does not apply to ordinary chancery suits nor to a proceeding to contest an election, even though its terms include certificates of evidence.</p>

Writ op Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Grundy county; the Hon. Samuel j C. Stough, Judge, presiding.

<p>1. Workmen’s compensation—when employee of a furniture company is engaged in extra-hazardous occupation. A furniture company which maintains a warehouse for the storing of its furniture, from which deliveries are made to customers, operates a warehouse within the meaning of subdivision 4 of paragraph (b) of section 3 of the Compensation act, and an employee. who is engaged in delivering such furniture and whose duties require him to work in and around the warehouse is engaged in the extra-hazardous occupation of his employer.</p> <p>2. Same—injury received while going to and from work may be in course of employment. An injury to an employee while going to or returning from his employment may be such as to be regarded as occurring within the course of the employment.</p> <p>3. Same—section 29 of the Compensation act construed. Under section 29 of the Workmen’s Compensation act, where an employee, while in the line of his employment, is. injured by a third party, and the employer, employee and third party are all under the act, the employee may recover compensation from his employer whether the third party was guilty of negligence or not and regardless of the question whether the third party can be held liable in an action for damages, but he cannot sue the third party for damages. (Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413, followed.)</p> <p>4. Same—liability of third party under section 29. If .an injury to an employee while in the line of his employment is caused by a third party, and the employer, employee and third party are all under the Workmen’s Compensation act, then, under section 29 of that act, the third party is liable to pay to the employer the amount of compensation awarded against him and in favor of the employee, provided the third party was guilty of negligence or a violation of some statute giving rise to an action for damages by the employee.</p> <p>5. Same—employee’s recovery not dependent upon solvency of employer. The fact that section 29 of the Workmen’s Compensation act takes from the employee, under the circumstances stated therein, the right to1 bring an action against a third party who injures him does not make his recovery of compensation dependent upon the solvency of his employer, since, if the employer should be insolvent or fail to bring the action against the third party, the employee would have the right to maintain tile action for his use in the name of his employer.</p> <p>6. Sams—under section 29 of the Compensation act employer may bring action against third party without first paying compensation. Under section 29 of the Workmen’s Compensation act the employer may bring his action against the third party causing the injury without first having paid the employee the amount of compensation awarded, as the word "subrogated,” in said section, is not used in its technical sense but is more nearly equivalent to the word “transferred.”</p> <p>7. Sams—section 29 of the Workmen’s Compensation act is not invalid. Section 29 of the Workmen’s Compensation act is not invalid because in some cases the injured employee who is under the act may not receive adequate compensation for his injuries, as such employee has his election whether he will be bound by the act; nor is the act invalid as being broader than its title nor as being discriminatory or special legislation.</p>

<p>.Evidence—section 36 of Evidence act construed as to power of a foreign commissioner. Section 36 of the Evidence act does not authorize a commissioner appointed by a court in a foreign State for the purpose of taking depositions in Illinois to apply for an order of an Illinois court to compel a witness subpoenaed by such officer to appear before him and give his testimony, and in so far as such section purports to authorize a circuit court to punish a witness for contempt who willfully refuses or neglects to appear before such officer it has been held unconstitutional. (Puterbaugh v. Smith, 131 111. 199, and McIntyre v. People, 227 id. 26, approved.)</p>

<p>Wills—when remainder is vested but subject to executory devise over. A devise to the testator’s wife for life with remainder to the testator’s sons, but in case either of the sons shall die previous to the termination of the life estate the share of such son shall go to his children, gives a vested remainder to the sons but subject to the executory devise over to the children, and the sons can not convey a fee simple title during the existence of the life estate. (Lachenmyer v. Gehlbach, 266 Ill. 11, followed.)</p>

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

<p>Appeal from the Second Branch Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>1. Appeals and errors-—right of a foreign corporation to do business in Illinois is not a franchise. The right of a foreign corporation to do business in Illinois is a mere license and not a franchise, as the franchise of the corporation is the privilege emanating from the State of its creation, and hence a bill to enjoin a foreign corporation from further continuing business in Illinois does not involve a franchise.</p> <p>2. Same—what necessary to give jurisdiction because the State is interested. To give the Supreme Court direct appellate jurisdiction on the ground that the State is interested as a party or otherwise, the interest of the State must be a direct and substantial one in the subject matter of the litigation; and such is not the case where a bill is filed in the name of the People to enjoin á foreign insurance corporation from continuing business in Illinois and asking for the appointment of a receiver upon the ground of the defendant’s insolvency.</p>

<p>Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. f</p>

<p>1. Specific performance—contract to convey must be definite and unequivocal in terms. The complainant in a bill for specific performance of a contract to convey must prove a contract that is clear, definite and unequivocal in its terms.</p> <p>2. Same—contract to convey cannot be proved by mere declarations of one party not binding on the other. While a contract to convey may be proved by the declarations of the parties made out of the presence of each other, together with other acts of the parties which show such an agreement was made, yet it cannot be established by mere declarations of one party which are not binding on the other.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding.</p>

<p>1. Highways—when freehold is involved in suit to enjoin obstruction of highway. A freehold is involved in a suit to enjoin the obstruction of a highway where the issue is whether or not there is a highway over the land in controversy.</p> <p>2. Same—a highway may be acquired over county property by prescription. A county is not exempt from the operation of the Statute of Limitations in a controversy as to whether the public has acquired a prescriptive right for a highway over property belonging to the county.</p> <p>3. Same—what is essential to a common law dedication. To constitute a common law dedication of land to a public use there must be an intention on the part of the land owner to dedicate and an acceptance of the dedication by the public, but, so far as the land owner is concerned, the dedication is complete whenever the intention to dedicate appears either by declaration or by conduct.</p> <p>4. Same—when intention to dedicate a highway to public use will be implied. The law will imply an intention to dedicate a highway to a public use from any acts of the owner which indicate an intention to so appropriate his property, and where his conduct has been such as to lead an ordinarily thoughtful person to infer an intention to make a dedication, to accept the same for a public use and to use it as a highway, the dedication becomes complete and cannot be recalled by the land owner.</p> <p>5. Same—what zuill constitute public highway by prescription. A road which has been open as a public highway to all the people and has been known and used as such in common for the statutory period is a public highway, the test being, not how many persons actually used the highway but how many had a free right in common to use it; and the fact that such road is recognized by the township authorities and is worked, the same as the other roads strongly indicates that it is a public highway.</p> <p>6. Limitations—when public property is not exempt from operation of the Statute of Limitations. The exemption in favor of counties, cities, towns and other minor municipalities from the operation of the Statute of Limitations extends only to matters affecting their public rights as distinguished from private and local rights, with respect to which such municipalities, the same as individuals, are subject to the operation of the statute.</p>

<p>1. Wills—when provision in will devises a fee under section 13 of Conveyances act.. Under section 13 of the Conveyances act, if an estate is devised to a named person without the use of words theretofore necessary to transfer an estate of inheritance, such person will take a fee simple estate of inheritance unless it appears from the will by express words or by construction or operation of law that a less estate than a fee is limited.</p> <p>2. Same—when a devise of homestead with power of sale is a devise in fee simple. Where a testator devises to his wife “the homestead where we now reside,” (describing the same,) “she to have full power to sell all or part of said lots as she thinks best,” the words “where we now reside” do not limit the devise to a life estate; nor does the clause giving the power of sale limit' the estate to less than a fee, where there is nothing in the rest of the will to indicate such an intention.</p>

<p>Writ op Error to the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

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

<p>1. Appeals and errors—Supreme Court must dispose of case according to law when decision is rendered. Where a curative statute is passed, subsequent to an appeal, to remedy defects in a former statute which gave rise to the litigation, the Supreme Court is bound to dispose of the case under the statute in force when its decision is rendered and not as the law was at the time of the judgment in the circuit court;</p> <p>2. Constitutional law—curative act of 1917, relating to high schools, is valid. The act of 1917, designed to cure defects in the organization of high schools in districts which it purports to affect, is a valid enactment. (People v. Madison, ante, p. 96, followed.)</p>

<p>1. Criminal law—information must be sworn to before warrant can issue. To comply with section 6 of the bill of rights in the constitution an information charging the commission of a crime must be sworn to or there must be a sworn complaint or affidavit before a warrant can issue.</p> <p>2. Same—section 117 of the County Court act, regarding prosecutions by information, is unconstitutional. Section 117 of the County Court act, regarding prosecutions by information in county courts, in so far as it does not require the information to be sworn to when made by the State’s attorney or Attorney General, is in violation of section 6 of the bill of rights of the constitution, protecting persons and property from warrants issued without affidavit.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.</p>

<p>1. Inheritance tax—inheritance tax may be assessed against succession to personal property in another State. Personal property consisting of stocks and bonds owned by a resident of Illinois at his death but situated in a foreign State is within our Inheritance Tax law and the right of succession thereto may be taxed, but where the shares therein are paid over by the foreign administrator directly to the beneficiaries, who are non-residents, neither the Illinois administrator with the will annexed nor the Illinois trustee under the will is liable for the taxes assessed against the shares so paid over. (People v. Union Trust Co. 255 Ill. 168, followed.)</p> <p>2. Same—zcthen trustee is liable for inheritance taxes. Where the balance of the estate of a testator, who resided in Illinois at his death, is paid over to the Illinois trustee under the will by the foreign administrator after administering the estate and paying over to the non-resident beneficiaries their shares of the testator's personal property, which was situated in the foreign State, such trustee is liable for inheritance taxes on the right of succession to the trust fund as fixed by the will. (People v. Union Trust Co. 255 Ill. 168, followed.)</p>

Writ oe Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding.

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

<p>Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Sangamon county; the Pión. Norman L. Jones, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>This case is controlled' by the decisions in East Side Levee and Sanitary District v. East St. Louis and Carondelet Railway, 279 Ill. 123, Same v. Mobile and Ohio Railroad Co. id. 319, and Same v. Bast St. Louis, Columbia and Waterloo Railway Co. id. 362.</p>

<p>Writ of Error to the Circuit Court of Winnebago county; the Hon. James S. Baums, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.</p>

<p>1. Winns—zvhen provision in will amounts to equitable conversion of real estate. Where a testator in his will gives a positive direction to sell his real estate and to divide the proceeds thereof among legatees therein named, such direction amounts to a conversion of the real estate into personal property and the legatees take the same as personal property.</p> <p>2. Same—zvhen absence of express direction zvill not render exercise of power of sale in a will discretionary. Where the power granted to an executrix to convert land into money is full and complete and not referred to her discretion, the absence of an express command or direction will not render the exercise' of such power discretionary when to so hold will defeat the testator’s intention as manifested from the whole will.</p> <p>3. Same—zvhen direction to convert is apparent from the entire will, duty to sell'is imperative and conversion is immediate. Where the direction to convert the testator’s real property into personalty is apparent from the whole will, whether expressed or implied, the duty and obligation to convert are imperative, and the conversion will be deemed to be immediate although the donee of the power of sale is vested for the benefit of the estate, with a discretion as to the time and manner of sale.</p> <p>4. Same—laches cannot operate to defeat the trust created by power of sale given in a will for purpose of distribution. Where a testator directs his executrix to sell his real property and distribute the proceeds according to provisions in the will the executrix will take the title in fee, by implication, in trust for the purpose of carrying out the intent of the testator; and such power of sale is not destroyed by the failure of the executrix to exercise it before her death, nor can the doctrine of laches be applied to defeat the trust, as the legal title of the trustee passes to her legal heirs subject to the trust.</p> <p>5. Same—when an increase in value of legacies will not render subsequent exercise of power of sale inequitable. The fact that certain legacies to be paid out of the proceeds of the sale of real estate have increased in value with the land because of the failure of the executrix to exercise the power of sale will not render a subsequent exercise of the power after thirty years inequitable because the other legacies are for stipulated sums, where the legatees could have enforced a sale and payment of the legacies at any time.</p>

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

<p>Writ op Error to the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>1. Practice—party seeking to have default set aside must show due diligence. Motions to set aside a default and for leave to plead are addressed to the sound discretion of the court, and the party making the motions must show not only that he has a meritorious defense but also that he has acted with due diligence to protect his rights, and the negligence of an attorney in such case will be imputed to the client.</p> <p>2. Same—zvhen no appeal can be taken from an order of court refusing to set aside judgment by default. Where a judgment rendered by default is one from which no appeal would lie if a similar judgment were rendered on the merits at the conclusion of a hearing, no appeal can be taken from an- order of the court refusing to vacate and set aside such judgment by default and allow the objector to plead.</p> <p>3. Special assessments—no appeal is allowed from jzidgment under section 84 of Local Improvement act. Under section 84 of the Local Improvement act the judgment of the county court is final and conclusive as to all questions of fact which can be presented at the hearing of objections to the certificate of acceptance of the improvement by the board of local improvements, and the finding of the county court cannot be reviewed by the Supreme Court by appeal or writ of error.</p>

<p>Taxes—hard roads ta.v should be levied for the whole period— effect where first certificate is insufficient. Under the Roads and Bridges act of 1913, where a hard roads tax is voted for a number of years, it is the duty of the commissioner or commissioners to levy the tax for the whole period and the duty of the county clerk to extend the tax each year by virtue of the single certificate, but the fact that the levy is not legally made for the first year does not destroy the right of the people to the tax for the remaining period fixed by the election.</p>

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

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

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

<p>Writ or Error to the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding.</p>

<p>Appeal from the County Court of Douglas county; the Hon. D. H. WamslEy, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>1. Criminal law—an indictment for manslaughter need not allege that the killing was willful. An indictment for manslaughter, under the statute, need not charge that the killing was both feloni•ous and willful.</p> <p>2. Same—an indictment for manslaughter need not allege particular kind of motor vehicle with which killing was accomplished. The term “motor vehicle” has been given a definite meaning by the statute, and in a manslaughter case, where the deceased was run over by an automobile, the indictment need not describe the particular character or kind of motor vehicle with which the killing was accomplished.</p> <p>3. Same—when objections to misconduct of juror and to State’s attorney’s argument come too late. - Objections to the alleged misconduct of a juror, of which the defendant was informed during the trial, and to alleged prejudicial remarks of the State’s attorney in his argument, cannot be reviewed in the Supreme Court when raised for the first time by affidavits in support of a motion for a new trial.</p> <p>4. Same—when driver of automobile is guilty of criminal negligence. A driver of an automobile is guilty of criminal negligence where he drives his car at a speed of more than fifteen miles an hour on a well traveled boulevard in front of a public school building, where the speed limit is ten miles per hour, with knowledge of such circumstances and of the fact that children are crossing the street on their way to school.</p>

<p>1. Evidence—what is not competent evidence of contents of a letter. Secondary evidence of the contents of a letter which has been lost or destroyed cannot be given by a witness who could neither read nor write and whose knowledge of such contents was derived from what other persons told him.</p> <p>2. Same—when evidence does not tend to prove a certain state of facts. Evidence which is as consistent with one state of facts as another has no tendency to prove either,state of facts as against the other.</p> <p>3. Specific performance—what proof is necessary to enforcement of parol contract. The proof which will justify a court of equity in decreeing the specific performance of a contract the existence of which depends upon parol testimony must be clear and conclusive, and there must be no reasonable doubt that the contract was made and that all its terms have been clearly proved.</p> <p>4. Same—a contract must be fair and just. Contracts which a court of equity will specifically enforce must be full and complete, certain in their terms and fair and just in their provisions.</p> <p>5. Same—when contract is oppressive. A parol contract whereby a brother and sister agree to leave their property to children of relatives they had never seen would be oppressive as to the husband or wife of such brother and sister and their children, in case they should marry and have children; and the fact that neither of them was married at the time, and never did marry, does not alter the principle involved.</p>

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

<p>1. Bonds—secretary of bureau of labor statistics is authorised to receive license fees. Under section 12 of the act relating to the bureau of labor statistics, as amended in 1909, the secretary of the board is authorized to receive and act as custodian of license fees for private employment agencies, and his bondsmen are liable for loss to the State caused by his appropriating such fees to his own use.</p> <p>2. Same—State not bound by representations of an employee in application for bond. The State is not bound by the representations of an employee of the State, in his application for a bond, with respect to the approximate amount of money he would handle in a year, as the State is not bound to know or inquire into the method of a bonding company in determining whether it will become a surety.</p> <p>3. Same—effect of knowledge by the State that an employee is mingling public funds with his own. The mere fact that an officer or officers of the State knew that a bonded employee was mingling public funds with his private funds is no defense to a suit by the State on his bond, as the State owes no duty to a bonding company to use diligence to save such company from loss.</p>

<p>1. Contracts—contract will not be rescinded merely because one party has the advantage. The fact that one party gets the advantage of the other in a transaction by the wording of the contract is not sufficient ground, of itself, for setting aside the contract, where the other party is apprised fully of the provisions of the contract and what they mean.</p> <p>2. Same—party desiring to rescind contract on ground of fraud must act upon discovering the fraud. Where a party desires to rescind a contract upon the ground of fraud, he must, upon the discovery of the fact, at once announce his purpose and adhere to it, and it is his duty to tender back whatever he has received under the contract and offer to place the other party in staUt quo.</p>

<p>Drainage—when district is liable for damage to land owners by contractor in dredging. The drainage district, and not the contractor, is liable for damage to land owners through the caving in of the banks of a ditch during the progress of construction which necessitated additional dredging, resulting in deposits of sand and mud on the property of adjoining owners, where the damage was caused because the district’s plans and specifications were defective in not allowing sufficient slope for the sides of the ditch.</p>

<p>1. Partnership—question of existence of partnership, as betzveen the parties, must be determined from the circumstances. As between the parties the question of the existence of partnership relations is one of intention, to be determined from all the facts and circumstances properly in evidence.</p> <p>2. Same—zvhen agreement for share of profits does not show a partnership. An agreement between a banker and a stock buyer whereby the former was to furnish the money for buying the stock and receive a share of the profits but not to stand any losses does not show a partnership.</p>

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

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

<p>1. Waters—fact that a lake is not meandered when surveyed is not conclusive that it is not navigable—burden of proof. In a proceeding where the State claims title to an inland lake on the ground that it is navigable, the fact that the lake was not meandered when surveyed is not conclusive that it was not navigable, but the burden is on the State to establish by proof that the lake was navigable for useful commerce in a state of nature, before it was affected by artificial changes.</p> <p>2. Same—when State has title to inland lake in trust for the people. If at the time the State was admitted into the Union an inland lake in the State was navigable for useful commerce and furnished a highway over which commerce was or might have been carried on in the customary modes in which commerce was then conducted by water, the title to the bed of the lake is vested in the State in trust for all the people of the State.</p> <p>3. Same— determination by land department of Federal government that lands are swamp lands cannot be attacked collaterally. The determination of the Federal government, by the Secretary of the Interior, as head of the land department, that lands in a State are swamp and overflowed lands, is the determination of a question of fact by a tribunal specially authorized to determine such fact and is conclusive except in a direct attack for fraud or mistake.</p> <p>4. Appeals and errors—when question cannot be presented to the Supreme Court although motion was made before the master. Where a motion is made before the master to exclude certain counsel from participation in a case on certain alleged grounds but the master permits such counsel to continue in the hearing without ruling on the motion and the motion is not in any way presented to the court for a ruling, the question raised by the motion cannot be presented on appeal to the Supreme Court.</p>

<p>Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding.</p>

<p>1. Drainage—organisation of lands in three towns into a union district may be de facto. A union drainage district which includes lands in three towns is not a legal organization, but, since the Farm Drainage act authorizes the creation of a special district in three or more townships when the necessary facts exist, the organization is a de facto one, the existence of which cannot be attacked collaterally.</p> <p>2. Same—an assessment allowing credits for payments under previous invalid assessment is void. Where commissioners levy an assessment and contract for the improvement but abandon the work because the lands were not properly classified, a new assessment after the lands are legally classified is void where credits are allowed by the commissioners, under sections 22 and 26 of the Farm Drainage act, for payments under the previous illegal assessment, as said sections apply only to the purchase of an old ditch from the owners.</p> <p>3. Same—what objection may be made on application for judgment and order of sale. An objection that a farm drainage assessment is void because the commissioners have allowed credits for payments made by certain land owners on a previous illegal assessment may be made on application for judgment and order of sale notwithstanding the provision of section 27 of the Farm Drainage act for an appeal, as the question to be presented by such appeal is limited to the point whether the assessment exceeds the benefits.</p>

<p>1. Jurisdiction—when parties are bound by the decision of the Supreme Court. Parties who, as trustees and individually, submit themselves to the jurisdiction of a proper court in Illinois for the purpose of repudiating the trust and asking for partition, are bound by- the decree and by the judgment of the Supreme Court reversing the same, and upon the re-docketing of the case they cannot re-litigate questions decided by the Supreme Court in construing the trust deed and settling the rights of the parties.</p> <p>2. Same—the court first acquiring jurisdiction will retain it. Where the superior or circuit court of Cook county properly acquires jurisdiction of a proceeding to have a trust created by deed declared void and the property partitioned and enters a decree which is reversed by the Supreme Court, upon the re-docketing of the cause in obedience to the remanding order the trial court will retain jurisdiction, and the parties cannot seek another forum for the purpose of re-litigating the questions decided against them.</p>

<p>Writ or Error to the Second Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>1. Constitutional law—constitutional provision against an increase of salary during term of office includes officers elect. The constitutional provision prohibiting any increase of salary of officers during their terms of office applies to officers who have been elected and are sure of holding office as well as to those in office.</p> <p>2. Oeeices—term of an elective office begins on date of election when not otherwise fixed. The term of an elective office, when not fixed as to the date of its beginning and ending by a constitution or statute, begins on the date of the election, and the fact that when an officer “holds over” the holding over is considered a part of the original term does not change the lawful term. (People v. Callaghan, 83 Ill. 128, and Crook v. People, 106 id. 237, distinguished.)</p> <p>3. Same—terms of office of circuit judges begin on date of election. The terms of office of circuit judges and of all the additional circuit judges of Cook county, as provided by different statutes, begin on the day of the judicial election, whether or not the person elected to the office has received his commission and qualified. (People v. Callaghan, 83 Ill. 128, distinguished.)</p> <p>4. Same—public office is presumed to be continuously filled until it is abolished. In legal contemplation an office that has once been created is necessary, and it is never vacant but is presumed to be continuously filled until it is abolished.</p> <p>5. Elections—the State canvassing board cannot recall commissions issued. Neither the Governor nor the State canvassing board can recall and cancel commissions issued after canvassing the election returns.</p> <p>6. Same—county canvassing board may meet and send in omitted abstract of votes but cannot change abstracts sent in. Where the county canvassing board has sent to the State canvassing board the election returns for circuit judges but has omitted to send in the abstract of votes for judge of the Supreme Court, their action in holding another meeting to send in said abstract is not improper as it is simply a completion of their duties, but they have no power to make any change in the abstracts of votes for circuit judges.</p>

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

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

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. A. W. DesElm, Judge, presiding.</p>

Writ oe Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Joseph A. Fitch, Judge, presiding.

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

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

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

<p>1. Mines—when violation of Mining act is not proximate cause of miner’s death. Where, in violation of paragraph (a) of section 20 of the Mining act, a miner is directed to enter a mine to rescue certain men after an explosion had stopped the ventilation but is ordered out again, by telephone, in plenty of time for his own safety, the violation of the statute is not the proximate cause of the miner’s death, where the latter disobeyed the order to come out and'was asphyxiated upon going further into the mine in quest of other miners.</p> <p>2. Same—evidence must show that violation of statute ivas the proximate cause of injury. Contributory negligence is no defense to an action for an injury to a miner due to the employer’s willful violation of the Mining act, and under some circumstances a violation by a miner of an order of his employer might not amount to more than contributory negligence, but where a declaration alleges that the injury was due to the violation of the statute the allegation is material and the evidence must show that such violation was the proximate cause of the injury.</p>

<p>1. Evidence—written instruments are presumed to have been •written on the day they bear date. There is always a presumption that instruments are made or written on the day they bear date; and this presumption applies to letters written by one party to a suit to the other party.</p> <p>2. Actions and DEEENSES—when the doctrine of an election of remedies does not apply. The doctrine of the election of remedies is applicable only where a party has elected between inconsistent remedies for the same injury or cause of action and does not apply to an election between suits based upon different statutes.</p> <p>3. Same—when judgment under Federal Employers’ Liability act is no bar to suit under State law for the same injury. A judgment against the plaintiff in a suit brought under the Federal Employers’ Liability act is no bar to an action under a State law for the same injury, where it was determined that the party injured was not engaged or employed in inter-State commerce at the time of the injury.</p> <p>4. Workmen’s compensation—when the employer is estopped from contending that injured employee was engaged in inter-State commerce. A judgment against the administratrix in a suit under the Federal Employers’ Liability act for the death of an employee of a railroad company, where it was determined that the deceased was not engaged in inter-State commerce at the time of the injury, estops either party from contending in any other suit that the injured party was engaged in inter-State commerce.</p> <p>5. Same—what determines whether employee is engaged in interState commerce. It is the employment that determines whether or not the employee is engaged in inter-State commerce within the meaning of the Federal Employers’ Liability act, and not the act of the employee just at the time of his injury.</p> <p>6. Estoppel—when judgment on demurrer operates by way of estoppel the same as a verdict. A judgment on demurrer is equally as conclusive by way of estoppel as would be a verdict finding the same fact followed by a judgment on the verdict, and the fact thus established cannot afterwards be contested between the same parties if it is an ultimate fact determining the question of liability; and the public announcement of the court may be proved by parol evidence in order to determine what issues were definitely passed upon and decided.</p>

<p>1. Wills-—intention of testator as it appears from whole will must prevail. All the provisions of a will must be considered and the intention of the testator as it appears from the whole will must prevail, provided such intention does not violate some rule of law.</p> <p>2. Same—trust provision construed as referring to issice living at time of distribution. A provision in a will that if at the time of the distribution of the trust estate “any of my children shall be without issue, either children or grandchildren, then the share of my estate to which such child shall be entitled shall not be paid to it” but shall be held in trust, means that such child have no issue living at the time of distribution, and only those having issue so living are entitled to their distributive shares freed from the trust.</p> <p>3. Same—when there is no distinction between real and personal property as to time of vesting. If it is clear that the clause following a general direction as to the distribution of a trust estate makes it a condition precedent to the vesting of the estate that the devisee or legatee shall have issue living at the time of distribution, there is no ground for holding that the personal property is not subject to such condition the same as the real estate.</p> <p>4. Same—Wigglesworth table is standard mortality table. The Wigglesworth mortality table is recognized as one of the standard tables in use by the courts in ^determining the present value of future interests.</p>

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

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

<p>1. Description—description of real estate by existing monuments is presumed to be correct. A description of real estate which refers to objects as fixed and existing will be presumed to be correct, and it will be presumed that the things referred to as monuments can be found.</p> <p>2. Drainage—what description of ditches in petition for drainage district is required by statute. The statute merely requires the description of ditches in a petition for a levee drainage district to be sufficient to enable a competent surveyor to locate the courses and distances of the ditches from the specified starting point and terminus of each ditch and its general route.</p> <p>3. Same—petition for drainage district need not expressly state the acreage of the district and amounts owned by the signers. The statute does not require that the petition for a levee drainage district shall expressly state the total acreage of the district or the number of acres owned by the respective signers, but only requires that the petition shall be so drawn that it will afford .information from which such facts can be ascertained by investigation. *</p> <p>4. Same—when party cannot question legality of organization of drainage district. Where no bill of exceptions containing the evidence on which the court acted on the hearing of the petition for the organization of a drainage district is preserved a party can not raise the question of the legal organization of the district on motion to set aside the order, as the presumption of the correctness of the proceeding will obtain until error. therein is shown by the record.</p> <p>5. .Same—when objections going to jurisdiction are waived. Where a party enters a general appearance to object to amendments to a petition for the organization of a drainage district, objections going to the jurisdiction of the court are waived.</p> <p>6. Same—agreement with a railroad company upon the taking of property for drainage purposes does not preclude future assessments. Drainage commissioners may contract with a railroad company in regard to the compensation for land taken and the amount of the first assessment of benefits upon lands not taken, but such contract does not preclude future additional assessments.</p> <p>7. Same—question •of proportion of assessments must be raised on hearing of legal objections. The question of the proportion of assessments in the assessment roll must be raised and preserved on the hearing of the legal objections and cannot be argued on- the trial before the jury on the question of benefits.</p> <p>8. Same—Supreme Court will not interfere where evidence is conflicting as to benefits and verdict is within range of testimony. Where the evidence is conflicting as to whether property is assessed more than it will be benefited the Supreme Court will not interfere with the judgment of the lower court and the verdict of the jury, which is within the range of the testimony, unless the finding is clearly against the weight of the evidence.</p>

<p>1. Nuisances—city cannot declare that to be a nuisance which is not such in fact. The power given by- law to incorporated cities and villages to declare what shall be a nuisance does not authorize a city or village to declare that a nuisance which is not such in fact, although it is a business which may become a nuisance by reason of its locality, surroundings or the manner in which it is conducted.</p> <p>2. Same—what ordinance as to location of stables for horses is invalid. An ordinance forbidding the erection of any stable for the keeping of ten or more horses within four hundred feet of certain public buildings is invalid where it prevents the erection of the necessary buildings for a milk-distributing station, which is not, in fact, a nuisance.</p> <p>3. Mandamus—petitioner must show clear right to the writ and neglect of duty on part of defendant. The writ of mandamus will be awarded only in a case where the petitioner shows a clear right to the writ and a clear neglect of duty on the part of the defendant to perform the act sought to be enforced, and a petitioner who seeks to compel a city to issue him a permit for the erection of a building must show compliance with all the valid requirements of the building ordinances.</p>

<p>Appeal from the First Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Richard E. Burice, Judge, presiding.</p>

<p>1. Brokers—liability of principal cannot be determined in suit among brokers to which principal is not a party. In a suit in chancery among real estate brokers to divide commissions in a real estate trade, the liability of one of the principals in the transaction for commissions to one of the brokers cannot be determined where the principal is not a party to the suit.</p> <p>2. Arbitration—conditions to be observed by arbitrators are determined by agreement between parties to the controversy. It is the agreement between the parties submitting a matter in controversy for arbitration that fixes the conditions, limitations and restrictions to be observed by the arbitrators in making their award.</p> <p>3. Same—presumption is in favor of validity of award. Every presumption is in favor of the validity of an award, and it is incumbent upon the party objecting thereto to show that the conditions were not complied with by the committee of arbitration.</p> <p>4. Same—when party cannot object to award because another was not made a party to arbitration proceeding. Where a controversy between real estate brokers over commissions is settled by arbitration, a party to the arbitration agreement cannot object to the validity of the award because another broker was not made a party to the agreement, where the amount awarded to him would not have been changed had the other broker been made a party.</p>

<p>1. Highways—when an attempted vacation of an alley is void. Under the statute requiring a three-fourths majority of all-the aldermen before a street or alley shall be vacated, an attempted vacation voted for by four of the six aldermen of the city is void.</p> <p>2. Same—effect where deeds purport to include land used as an alley. If an alley exists by prescription or common law dedication, deeds which purport to include the land embraced in the alley convey only the fee subject to the public right, whereas if there was a statutory dedication and the alley has not been lawfully vacated, the deeds, as to the alley, convey nothing.</p>

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

<p>1. Constitutional law—constitution does not exclude wards of the State from religious exercises. It is contrary to the letter and spirit of the constitution to exclude from religious exercises children of members of any denomination when the State assumes their control or to prevent such children from receiving the religious instruction which they would have received at home.</p> <p>2. Same—when paying money to denominational school for the care of wards of the State does not violate constitution. Paying $15 a month to the Chicago Industrial School for Girls, a Catholic institution, for every girl committed thereto by the juvenile court of Cook county under section 17 of the Juvenile Court act, does not violate section 3 of article 8 of the constitution, prohibiting the donation of public funds to any denominational institution, where such sum is less than the actual cost for the care of such girls at the State institution. (County of Cook v. Chicago Industrial School for Girls, 125 Ill. 540, distinguished.)</p>

<p>1. Limitations—when possession will ripen into title under the twenty year statute. For a possession of land to ripen into a title under the twenty year Statute of Limitations the proof must show that the claimant and those under whom he holds possession and claims title have been in the actual, open and continuous possession of the property for twenty years or more prior to the filing of the suit, under a claim of ownership inconsistent with the claim of the holder of the record title.</p> <p>2. Same—title acquired by adverse possession is available for attack as well as for defense. A title acquired by adverse possession under the twenty year Statute of Limitations may be used as the basis for a bill in equity to remove a cloud, as the bar of the statute in such case is just as available for attack as for defense.</p> <p>3. Same—what acts are sufficient to show possession of land claimed wider twenty year statute. It is not necessary that land should be enclosed with a fence or that a house should be erected upon it or that it should be reduced to cultivation to constitute possession under the twenty year Statute of Limitations, but such improvements or acts of dominion over the land as will indicate to persons residing in the immediate neighborhood who has the exclusive control and management of the land are sufficient.</p> <p>4. Same—possession is continuous where grantee succeeds to possession of grantor. If each grantee of land succeeds to the possession of his grantor there is such privity between the occupants that their several possessions are regarded as continuous under the twenty year statute.</p> <p>5. Same—continuous possession of land cannot be broken by unlawful entry. The continuous possession of one who claims title to land under the twenty year Statute of Limitations cannot be broken in a way not recognized by law.</p> <p>6. ForcibeE entry and detainer—entry need not be made with actual force to constitute forcible entry and detainer. To constitute forcible entry and detainer under the statute it is not essential that the entry be accompanied by acts of actual force or violence against either person or property, but if one invades the possession of another against the will of the occupant, however quietly he may do so, the entry is forcible in legal contemplation.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>