Volume 282 — Illinois Reports

<p>1. Taxes—curative act of ipi'p validated high school taxes in districts affected. The curative act of 1917, relating to high schools, is a valid law, and its effect was to validate high school taxes previously levied in districts coming within the provisions of the act.</p> <p>2. Same—what sufficient to justify sustaining of high school tax. On application by the county collector for judgment and order of sale for a delinquent high school tax, all that is necessary to show in such collateral proceeding is that the tax was levied by persons assuming to act as the board of education of the district in conformity with some law authorizing the organization of high school districts, under which said board was elected and met and organized as required by the law.</p>

<p>1. Taxes—when a high school tax must be regarded as valid. On appeal from a judgment denying the collector’s application for judgment for a delinquent high school tax the Supreme Court will take judicial notice that the curative act of 1917 became effective during the pendency of the application and removed the objection made to the tax, even though the only ground urged for reversal is that the existence of the district as a de facto corporation could not be collaterally attacked.</p> <p>2. The other question in this case is controlled by the decision in People v. Mathews, {post, p. 85.)</p>

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

<p>Appeal from the County Court of Livingston county; the Hon. B. R. Thompson, Judge, presiding.</p>

<p>Appeal from the County Court of Livingston county; the Hon. B. R. Thompson, Judge, presiding.</p>

<p>Appeal from the County Court of Crawford county; the Hon. Daniel V. Dayton, Judge, presiding.</p>

<p>Appeal from the County Court of Livingston county; the Hon. B. R. Thompson, Judge, presiding.</p>

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

<p>Workmen’s compensation—Industrial Board is not a party in interest. The Industrial Board is not a party in interest so as to be included among the defendants whose places of residence determine the county where the application for a writ of certiorari, to review the record of the Industrial Board in a particular case shall be made. {Louisville and Nashville Railroad Co. v. Industrial Board, post, p. 136, followed.)</p>

<p>Appeal from the County Court of Jasper county; the Hon. H. C. Davidson, Judge, presiding. .</p>

Writ OR Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. Louis BrrnrRuter, Judge, presiding.

<p>1. Judgments and decrees—a consent decree is conclusive upon the parties. A decree by consent cannot be appealed from, error cannot be assigned upon it, a rehearing cannot be granted, and it cannot be set aside by a bill of review.</p> <p>2. Same—when complainants cannot appeal or sue out a writ of error. Where it appears on the face of the record that the decree is precisely according to the prayer of a bill to construe a will and terminate a trust and grants exactly the relief and all the relief asked for, the complainants cannot appeal or prosecute a writ of error even though the decree may be erroneous; nor can they complain that their unborn children having a contingent interest in the trust fund were not parties by representation.</p>

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

<p>Writ of Error to the Circuit Court of Mercer county; the Hon. William T. Church, Judge, presiding.</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 Honoré, Judge, presiding.

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. C. F. Irwin, Judge, presiding.

<p>Taxes—the curative act of ipi7 validated high school tax previously levied. The curative act of 1917 validated the organization of high school districts coming within its terms, and had the effect of validating every act of the boards of education in such districts which they are empowered to perform under the general School law, including the levy of a tax before the act was passed.</p>

<p>1. Criminal law—when instruction defining involuntary manslaughter is not prejudicial in eliminating the element of intent. An instruction defining involuntary- manslaughter, although wholly inapplicable to the case, is not prejudicial in eliminating the element of intent in a prosecution for murder, where the defendant himself testified that the shooting was intentional and the jury found him guilty of manslaughter.</p> <p>2. Same—when instruction that right of self-defense does not imply right of attack is permissible. Where there is some evidence that the defendant in a murder case began the fight which resulted in the killing, an instruction which tells the jury that the right of self-defense does not imply the right of attack in the first instance, and that the defense of self-defense is not available if the shooting was done from hiotives of retaliation or revenge, is permissible.</p> <p>3. Same—when instruction as to self-defense is proper. An instruction in a murder trial which informs the jury that one acting in self-defense can use only such force as is absolutely or apparently necessary for his defense is proper.</p>

<p>1. Wills—when decree dismissing bill to set aside deeds is not res judicata. A decree dismissing a bill to set aside certain deeds, which is affirmed upon the express ground that the deeds, which had been confirmed by will, could not be set aside unless the will was also set aside in the same proceeding, is not res judicata of the right of the complainants to maintain a suit to set aside the will and the deeds in one proceeding.</p> <p>2. Same—what tends to corroborate testimony that the testator lacked mental capacity. Evidence of a conversation between the testator and his attorney at the time of the execution of a codicil to his will indicating that the testator had left the business wholly in the hands of the attorney and was merely acquiescing in what his attorney suggested, tends to corroborate the testimony of other witnesses that the testator did not at that time have sufficient mental capacity to make a will, notwithstanding the attorney testifies that in his opinion the testator was competent.</p> <p>3. Same—when verdict as to testator’s mental capacity will be set aside. Where it is apparent from a careful consideration of the whole record, after giving the testimony of witnesses for the proponents the full credit to which it is entitled, that the verdict of the jury that the testator had sufficient mental capacity to make a will is palpably against the weight of the evidence, the verdict will be set aside on appeal.</p> <p>4. Same—when witness should be permitted to express opinion as to mental capacity of testator. A witness who has testified as to his long acquaintance with the testator, although he testifies to but one circumstance that he had noticed was unusual or peculiar in the testator’s actions, should be permitted to give an opinion as to the testator’s mental capacity.</p>

<p>Eminent domain—zvhen a railroad company is not entitled to claim consequential damages. For the land actually underlying pillars, piers and columns supporting a viaduct constructed over railroad yards by a special assessment proceeding for widening a street the railroad company is entitled to compensation as for land actually taken, but if damages for re-adjusting the tracks have been allowed and benefits have been assessed, as to which no complaint is made, the company is not entitled to consequential damages because of the fact that the spaces between the pillars and paralleling the tracks, and the spaces immediately surrounding the pillars, can not be used for railroad purposes.</p>

<p>Appeal from the County Court of Mason county; the Hon. Jesse M. Ott, Judge, presiding.</p>

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

<p>1. Statutes—in construing statutes courts are not confined to literal meaning of the words. In construing statutes the intention of the legislature is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to such intention, as ascertained from a consideration of the whole act.</p> <p>2. Same—construction leading to absurd consequences will be avoided, if possible. In construing statutes the courts are bound to presume that absurd consequences leading to great injustice were not contemplated by the legislature, and a construction should be adopted which it is reasonable to presume was contemplated.</p> <p>3. Workmen’s compensation—what circuit court may review Industrial Board’s decision. The words “parties defendant,” used in section 19 of the Workmen’s Compensation act, which section provides that “the circuit court of the county where any of the parties defendant may be found” shall have power by certiorari to review the decision of the Industrial Board, refer to the claimant or the employer, as the case may be, and do not authorize the suing out of the writ in any county where members of the Industrial Board, alone, may be found.</p> <p>4. Practice—a special appearance must question jurisdiction, only. A special appearance must be confined to a denial of jurisdiction, as an appearance for any other purpose is general.</p> <p>5. Same—attorney may question jurisdiction by motion. Where want of jurisdiction in a certiorari proceeding is apparent on the face of the record, the objection may be made by the defendant’s attorney by a motion to quash the writ and need not be made by the defendant personally.</p> <p>6. Same—when motion to quash writ of certiorari raises objections to jurisdiction, only. A motion to quash a writ of certiorari to review a decision of the Industrial Board on the grounds that no sufficient application was made for the writ and that the writ was issued by the circuit court of the wrong county raises jurisdictional objections, only, as a pro:cipe in due form is essential to give the court jurisdiction to issue the writ, and such writ must be issued in the proper county.</p>

<p>1. Specific performance—'what not necessary to establish oral contract to convey. While an oral contract to convey land must be established by clear and satisfactory proof, yet it is not necessary that the contract shall be proved by any third party who heard it made.</p> <p>2. Same—rule as to proof of contract by declarations. An oral contract to convey land may be proved by declarations and conduct of the parties not in the presence of each other but not by declarations or acts of one party not binding on the other.</p> <p>3. Same—what facts are not inconsistent with existence of oral agreement to convey. Where there is sufficient evidence to establish an oral agreement to convey all the property of the promisor to one who was living with him and managing his farm, the facts that the promisor transacted some of the business relative to the property and that on several occasions he stated to witnesses that he had executed papers to effect such conveyance are not inconsistent with the existence of the oral agreement.</p> <p>4. Same—what is not conclusive that an oral contract was not made. The fact that the alleged promisee in an oral contract to convey filed a claim against the estate of the deceased promisor is not conclusive that the contract was not made, and is without significance where the weight of evidence establishes the oral contract and shows complete performance in reliance thereon.</p> <p>5. Same—when provision against marriage zvill not render contract void. Where the main object of an oral agreement to convey is to secure the services of the promisee in caring for the promisor and in managing his farm during his lifetime, a provision against the marriage of the promisee during the promisor’s lifetime is only incidental to the carrying out of the agreement and does not render the contract void as against public policy.</p>

<p>1. Public utilities—what use of a railroad side-track will not convert it into a public team-track. The fact that a railroad company permits a part of its side-track leading to a grain elevator to be used for loading and unloading cars with teams, with the consent of the owner of the elevator and when it does not interfere with his business, will not convert the side-track into an ordinary public team-track.</p> <p>2. Same—when a railroad company cannot change rule as to a switching rate. A long established rule of a railroad company fixing a switching rate for hauling grain from an elevator on its side-track to the point of connection with another railroad cannot be changed by the railroad company, without the approval of the Public Utilities Commission, so as to exclude such service from the benefit of the switching rate and apply the distance tariff rate thereto, thereby practically excluding the shipper from markets on the connecting line.</p> <p>3. Same—commission may find rate unreasonable from the facts proved. The Public Utilities Commission may find a railroad rate to be unreasonable from the facts proved on the hearing, and it is not essential that any witness shall express an opinion that the rate is unreasonable or testify to the various details that make up the cost of operation.</p>

<p>1. Constitutional law—when parties waive constitutional question. Parties cannot stipulate what the law is but they may waive constitutional rights, and by stipulating what the issue is in a particular case they will be regarded as waiving constitutional questions not involved in such issue.</p> <p>2. Schools—women may vote at all elections for organization of high school districts. The act of 1915, legalizing elections for the organization of high school districts under the act of 1911 at which the votes of women were the deciding factor in carrying the election, necessarily gives women the right to vote at all elections for the organization of high school districts. (People v. Militser, 272 111. 387, explained.)</p> <p>3. Practice—when judgment is not responsive to issue. Where the parties have stipulated the issue but the court holds a proposition of law which has, in effect, been waived by the stipulation and enters judgment accordingly, the judgment is not responsive to the issue and will be reversed on appeal and the cause will be remanded, but the stipulation, if objected to, will not be binding upon another trial.</p>

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

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

Writ op Error to the First Branch Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Robert E. Turney, Judge, presiding.

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

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

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

<p>Writ or Error to the County Court of Edgar county; the Hon. Daniel V. Dayton, Judge, presiding.</p>

<p>1. Taxes—when court should re-open case to admit evidence to sustain objection. Upon the hearing by the court, without a jury, of a motion made at the close of all the evidence in a proceeding for judgment for delinquent taxes, to exclude the evidence for the People, the court, on motion of the objector, should re-open the case to allow an appropriation ordinance to be introduced in evidence to sustain an objection to the city tax, where such ordinance was referred to in the levy ordinance, already in evidence, as the authority for such levy ordinance.</p> <p>2. Same—Ming original tax levy ordinance does not authorise county clerk to extend tax. The filing of the original tax levy ordinance instead of the certified copy thereof does not authorize the county clerk to extend a village tax.</p> <p>3. Same—what is proof that taxes were not extended on certiñed copy of ordinance. Proof that a paper filed in the county clerk's office, purporting on its face to be the levy ordinance, was the authority under which the taxes were extended, is, in the absence of other evidence, proof that the taxes were not extended on the authority of or pursuant to a certified copy of the ordinance.</p> <p>4. Same—when court may refuse to permit additional objections to be Med. The court may properly refuse to permit the filing of additional objections to a tax different in character from those already filed, where no showing is made to excuse a delay of about two years from the time the original objections were filed.</p> <p>5. Same—court should admit evidence to sustain valid part of an objection. While an objection that the certificate of levy does not show that the rate and amount of the road and bridge tax were determined is not good, yet the court should admit evidence to sustain another part of the same objection that such tax is void because the rate to be certified and the amount were not determined in the manner required by statute, as shown by the highway commissioners’ records.</p> <p>6. Same—certifícate upon which town tax is extended need not specify separate purposes of tax. The certificate upon which a town tax is extended need not specify the separate purposes and amounts for which the levy is made, as such information is accessible to the tax-payers in the town clerk’s office.</p> <p>7. Same—board of auditors cannot make levy for general town purposes. The board of town auditors has no power to make a levy for general town purposes.</p> <p>8. Same—objection to form of delinquent list is waived when not made in trial court. An objection that the judgments for delinquent taxes were improper in form, due to the form of the delinquent list, cannot be made in the Supreme Court where the question was not raised in the trial court.</p> <p>9. Same—an objection that electors voted tax “for town purposes” in a lump sum is valid. An objection to a town tax that the electors voted the tax “for town purposes” in a lump sum is valid, and it is error to refuse to allow evidence to be introduced to sustain the objection.</p> <p>10. Same—when court should permit objection to be amended. Where an objection to a tax is sufficiently specific to disclose its character and the purport of it the court should permit an amendment to elaborate the objection already made, which does not make it a new and different objection.</p>

<p>Appeal from the County Court of Hancock county; the Hon. E. W. Dunham, Judge, presiding.</p>

<p>1. Cloud on title—correct practice where complainant conveys pending suit to set aside tax' deeds. Where the complainant in a bill to set aside tax deeds as a cloud on title conveys the premises pending suit, it is proper practice to file a supplemental bill with the grantor and grantee as complainants, as the grantor is entitled to remain in the case as a complainant for the protection of his covenants of warranty.</p> <p>2. Same—when cost of reference is properly taxed to defendant. Where the complainant in a bill to set aside tax deeds as a cloud has tendered to the defendant and paid into court a sum to cover the costs of the suit and reimbursement to the defendants, it is proper, if the amount found due the defendants upon a reference to the master is found to be less than the amount of the tender, that the cost of such reference be taxed to the defendants even though a second reference was necessary to take further proof as to the identity of the property, the cost of which was not taxed to them.</p>

Writ of 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. Charles M. Thomson, Judge, presiding.

<p>1. Workmen’s compensation—when compensation may be awarded on basis of entire earnings of employee although part of wages are paid by third party. Where a motorman for an interurban traction company is killed in a collision, compensation may be recovered from the traction company, under section 7 of the Workmen’s Compensation act, on the basis of the employee’s entire annual earnings, although part of said wages are paid by a city railway company in pursuance of its contract with the traction company to furnish employees while the traction cars are operating within the city.</p> <p>2. Same—installments draw interest after the award is made. After an award is made under the Workmen’s Compensation act the installments draw interest at the rate of five per cent from the date of the award or from the time they subsequently become due.</p>

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

<p>1. Taxes—county tax for road and bridge purposes is subject to reduction. Where it becomes necessary for the county clerk to reduce the county tax to the required rate, the tax levied by the county for road and bridge purposes should be included in the reduction.</p> <p>2. Same—tax for mothers’ pensions is included in aggregate of taxes certified for extension. The tax for mothers’ pensions is not subject to reduction, but it is an ordinary county tax and is a part of the aggregate of all the taxes certified to be extended.</p> <p>3. Same—county tax item for loss and cost of collection is subject to reduction. While a reasonable sum may be added to a tax levy for loss and cost of collection so as to produce the net amount desired, this authority cannot be exercised to extend the rate beyond the limit fixed by statute, but the loss and cost item is to be included in the minimum rate and is subject to reduction.</p> <p>4. Same—tax to pay bonds and interest may be levied although not included in either appropriation or levy ordinance. Under the constitutional provision requiring a municipal corporation, when incurring an indebtedness, to provide for a direct annual tax to pay the principal and interest, the county clerk is authorized, upon the filing of a certified copy of an ordinance for a bond issue for city improvements and for a direct annual tax sufficient to pay the bonds and interest, to use such ordinance, together with the annual levy ordinance, as the basis for extending the city tax, although the bond issue was voted for subsequent to the passage of the levy ordinance and appropriation bill and was not included in either of those ordinances.</p> <p>5. Same—the county clerk can refer only to tax levy ordinance and bond ordinances in extending tax. The tax levy ordinance and bond ordinances certified and filed in the county clerk’s office by the city clerk are the only source of information to which the county clerk is authorized to go for the amount of money required to be raised by taxation, and in extending the tax he cannot consider other information derived from city officers or other sources.</p> <p>6. Same—judgment for tax cannot be reversed because county clerk extends a proper amount by incorrect process. The fact that the county clerk extended a tax for bonds and interest according to a schedule he received from the city comptroller instead of according to the tax levy ordinance filed with him is not ground for reversing a judgment for delinquent taxes, where the amount actually-extended is less than the amount authorized in the levy ordinance.</p> <p>7. Same—•when statute may be passed to cure defects in levy of taxes. The legislature may pass an act to cure defects in the levy of taxes or other official acts when the defect consists in the failure to observe some requirement of the law without which the legislature might have authorized the act to be done, but such legislation is subject to the constitutional limitation that no person shall be deprived of life, liberty or property without due process of law.</p> <p>8. 'Same—act of May 3, igif, to cure defects in levying sanitary district taxes, is valid. The act of May 3, 1917, to cure defects in levying certain sanitary district taxes, is valid and effective to validate the taxes referred to, and the fact that the act excepts from its operation the taxes for the year 1915, which had been held invalid by the Supreme Court, does not render the act discriminatory, as such exception was proper.</p> <p>9. Same—court cannot zvaivc penalty of one per cent per month to be included in judgment for tax. The statutory penalty of one per cent per month to be included in a judgment for delinquent taxes cannot be waived by the trial court.</p>

<p>1. Partition—when cross-bill is properly dismissed as to certain matter without prejudice. Where a portion of a cross-bill filed in a partition suit seeks relief in regard to a subject matter entirely different from the controversy in regard to the land, it is proper for the court to dismiss the cross-bill, as to such matter, without prejudice to the right of the cross-complainant to take such further action as he sees fit.</p> <p>2. Same—when a deed will not be set aside. A deed made in pursuance of an agreement for the settlement of a pending suit, which the court had indicated would be decided against the grantor, will not be set aside as having been obtained by fraud where the agreement was entered into by the grantor with full knowledge of the facts, after months of negotiation and after consultation with his attorneys, and where there is no specific charge of fraud or evidence thereof, and no proof that any fact was concealed from the grantor or any misrepresentation made to him.</p>

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

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

<p>1. Appeals and errors—when the Supreme Court has power to issue writ of certiorari. If the amount of the judgment of the trial court in an action on a contract exceeds $1000 the fact that the judgment is reversed by the Appellate Court, which enters a judgment for a sum less than $1000, does not deprive the Supreme Court of jurisdiction to issue a writ of certiorari under the Practice act.</p> <p>2. Contracts—purchaser is not required to pay cash contrary to terms of contract in order to reduce damages for breach. Where a contract for the sale of a specified number of barrels of olive oil during a year provides for sixty days’ credit on each shipment the seller has no right to demand cash, and the measure of damages for the seller’s refusal to carry out the contract is the difference between the contract price and market price of the oil bought by the purchaser, and not merely interest for sixty days on each purchase.</p>

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

<p>Writ oe Error to the County Court of Woodford county; the Hon. Arthur C. Fort, Judge, presiding.</p>

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

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

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

<p>Appeal from the Circuit Court of Stark county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.</p>

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

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

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

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

<p>1. Corporations—extent of statutory right of stockholders to examine books and accounts. The statutory right of stockholders of a corporation to examine .the books and accounts of the corporation is unqualified and unrestricted, except that the right shall be exercised at reasonable times and under such conditions as will not unduly hinder and embarrass the company in the conduct of its business; and the fact that a stockholder is interested in a competing corporation- and by such an examination may obtain information that will benefit the rival company is not sufficient to deprive him of his statutory right.</p> <p>2. Same—when a stockholder’s petition for mandaimis is sufficient to show demand and refusal. A stockholder’s petition for a writ of mandamus requiring the officers of a corporation to permit him to examine the books and accounts of the company is sufficient to show a demand and refusal, where it alleges that the petitioner made written application to the company to examine its records and books of account and that on each occasion such permission was refused to him by the company.</p> <p>3. Same—a stockholders right to examine books and accounts cannot be defeated by corporation hiring an auditor. The -statutory right of a stockholder to examine the' books and accounts of a corporation cannot be defeated by the corporation by hiring an auditor to make an audit of its business and affairs and allowing the stockholder to examine the auditor’s report.</p> <p>4. Appeals and Errors—question not raised in Appellate Court cannot be raised for first time in Supreme Court. Where the record and opinion of the Appellate Court do not show that a question as to the sufficiency of a petition for a writ of mandamus was raised in that court it is too late to raise the question for the first time in the Supreme Court.</p> <p>5. Mandamus—question of sufficiency of verification to petition must be raised by motion before joinder of issue. The object of requiring a verification to a petition for a writ of mandamus is to show -the court that the facts therein stated are true, and a question as to the sufficiency of the verification must be raised by motion to strike the petition before joinder of issue of law or fact.</p> <p>6. Same—when costs of appeal may be taxed to the petitioner. The matter of taxing costs on appeal rests largely in the discretion of the court making the order, and where the judgment of the trial court is erroneous in awarding the petitioner for a writ of mandamus a larger measure of relief than he is entitled to under the showing made, making it necessary for the defendants to appeal to the Appellate Court to correct the error, the costs of the appeal may be taxed to the petitioner.</p>

<p>1. Criminal law—when court’s remarks in ruling on competency of evidence constitute prejudicial error. Where the proof as to whether a defendant is guilty of stealing an automobile is not clear the record should be free from substantial error, and remarks by the court in refusing the admission in evidence of a chattel mortgage by which the defendant claimed to have obtained the car, having a tendency to discredit the paper as evidence in the minds of the jury, constitute prejudicial error, although the court afterwards, of its own motion, admits the mortgage in evidence.</p> <p>2. Same—when it is prejudicial error to admit evidence of another crime to show guilty knowledge. If the guilt of a defendant charged with receiving a stolen automobile is not clear it is prejudicial error to admit evidence intended to show guilty knowledge by connecting the defendant with the theft of another automobile some time after the larceny of the one in question, where such evidence merely tends to raise a suspicion of the defendant’s connection with the latter crime, notwithstanding the court subsequently orders the evidence stricken from the record.</p>

<p>1. Special assessments—an ordinance requiring a street railway company to make street improvements in consideration of a franchise is a binding contract. An ordinance requiring a street railway' company to make certain street improvements in consideration of the right to operate street railways in the city becomes a binding contract when accepted by the railway company, and the city cannot impose any further obligation upon the company concerning the improvements specified in the ordinance.</p> <p>2. Same—cost of widening a street bears 110 relation to surface improvements required of a street railway company. The cost of widening a street is not included in the terms of a contract between the city and a street railway company whereby the company is required to make certain surface improvements on the streets where it operates its railways, and upon application to confirm a special assessment against the company’s lots for the widening of a street an objection based on the existence of such contract can not be maintained.</p> <p>3. Same—what determines whether property is assessed more than its proportionate share of the cost of improvement. The question whether property is assessed more than its proportionate share of the cost of a local improvement is to be determined by the proportion the particular assessment bears to the assessment on all other property benefited by the improvement and not by comparison with other particular property.</p> <p>4. Same—when property of street railway company cannot be assessed on theory that it could be put to another use. Property of a street railway company which is used as a terminal for the location of its car barns cannot be assessed for the widening of the street in front of the property on the theory that such improvement would benefit the property in case it should be sold or put to another use, where the present use as a terminal is permanent, and where the company, under its charter, cannot use the property for any other purpose than one connected with its business.</p> <p>5. Same—when property cannot be said to be beneñted. Where property of a street railway company is assessed $3501 in the assessment roll and the sum of $2200 is put down in the roll as an offset against said assessment on the ground of land previously dedicated, it is error to sustain any assessment against the property where the only witnesses for the city put their estimates of benefits at $1307 and $1500, respectively, being less than the^amount of the offset.</p>

<p>1. Specific performance—when alleged oral contract to convey is not sufficiently established. Where the evidence of an alleged oral contract by which a father agreed to give his son all his real property at his death if the son would support him is contra-dieted by provisions of the father’s will giving the son only a life estate in the property and by evidence of conveyances of part of-the property by the father, alone, after the alleged contract, said contract is not sufficiently established to be specifically enforced.</p> <p>2. Appeals and Errors—when cause will not be remanded for further hearing. On a second appeal in the same case, after additional evidence has been heard on the second hearing to establish an oral agreement to convey, the cause will not be remanded for further hearing if the decree is reversed on"the evidence, as the Supreme Court must assume that all the evidence which can be obtained to prove the existence of the alleged oral agreement has been introduced.</p>

<p>1. Taxes—leased.mining right may be assessed separately from rest of the land. A conveyance of the right to mine, excav.ate and remove coal underlying a tract of land is not a mere grant of an easement but is a sale of the coal itself and a conveyance of an interest in the land, and such mining right is real estate, which may be assessed for taxation separately from the other part of the land.</p> <p>2. Same—whether property is subject to taxation is the only question that can be raised on appeal from board of review. The only question that can be raised in the Supreme Court on appeal from a decision of the board of review assessing certain property for taxation is whether the property is subject to taxation, and if • it is subject to taxation the regularity of the assessment cannot be inquired into.</p>

Writ of Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.

<p>Appeals and Errors-—when freehold is not involved. No freehold is involved in an ordinary proceeding by an administrator _to pay debts nor where the question for determination is as to the existence of a lien upon land.</p>

<p>Appeal from the County Court of Madison county; the Hon. Henry B. Eaton, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Clay county; the Hon. William B. Wright, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding.</p>

Writ op 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—what taxes are to be included in minimum rate for Cook county. In making a reduction of Cook county taxes the taxes for roads and bridges, for parents’ pension fund and for loss and cost of collection of the general fund must all be included in the minimum rate of forty-five cents, but the tax for bonds and judgments and interest, and for actual loss and cost of collection of the same, is not to be included in said limit.</p> <p>2. Same—what taxes are subject to reduction. The county road and bridge taxes are subject to reduction but the tax for parents’ pensions is not so subject.</p> <p>3. Same—fees of jurors and witnesses should be levied in separate items. The county tax for fees of jurors and witnesses should be levied in separate items, as such expenses are as clearly distinct and severable as are judges’ salaries and the fees .of jurors.</p> <p>4. .Same—expense of feeding jurors should be a separate item. The expense of feeding jurors is a distinct charge from that of the service of jurors and becomes a charge only when necessary on-the trial of a criminal case, and a levy for such a purpose should therefore be in a separate item.</p> <p>5. Same—when a levy for tip-keep of county buildings is sufficiently specific. A county tax levy for “furniture, apparatus and machinery for the several buildings, departments and institutions of the county,” specifying the buildings, departments and institutions and the amounts for each, is sufficiently definite for the benefit of the tax-payers.</p> <p>6. Same—a county levy for “betterment” of buildings is too indefinite. A county tax levy for “betterment” of buildings, included under the heading “For building purposes and expenses of betterment of buildings,” is too indefinite, and if the erection of buildings is contemplated and included in the levies for other purposes the levies should be separate and amount for each purpose specified.</p> <p>7. Same—when loss and cost of collection cannot be added to minimum rates for educational and city purposes. No additional amount for loss and cost of collection can be added to the minimum rate allowed for educational purposes nor to the minimum for general city purposes where such minimum is the highest rate that can be levied for such purposes after the scaling process is completed.</p> <p>8. Samé—park commissioners should certify flat-rate levies for park taxes levied under acts of i88¡, 1893 and 1895. Park commissioners should certify a flat-rate levy for park taxes levied under the acts of 1885, 1893 and 1895, as the words “amount” and “sum,” as used in those acts, are not used in a manner to indicate that the amount in dollars is required to be certified.</p>

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

<p>1. Practice—when Supreme Court must decide case according to law then existing. Where the law authorizing a judgment of ouster in quo warranto is changed pending an appeal, the Supreme Court must decide the case according to the existing law and not according to the law as it existed when the judgment of the lower court was rendered. (People v. Gunn, 281 Ill. 244, followed.)</p> <p>2. Taxes—the act of ipif validated high school taxes. The act of 1917, curing defects in the organization of high schools coming within its terms, validated the boards of education, and the acts attempted to be performed by them under the general School law, in all cases where such boards had not been previously adjudged illegal in quo warranto proceedings, or where, if adjudged illegal, the cases were pending on appeal. (People v. Mathews, ante, p. 85, and People v. Leigh, ante, p. 17, followed.)</p>

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

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

<p>1. Limitations—what may constitute possession of property not capable of being improved. Where property is so situated as not to admit of permanent useful improvements, a continued claim, evidenced by public acts of ownership such as the claimant would exercise over property claimed in his own right and which he would not otherwise exercise, may constitute actual possession.</p> <p>2. Same—what will not constitute an interruption of-possession. The failure in one year or more to pasture land or use it otherwise, occasioned by high water overflowing the land, will not, of itself, necessarily constitute an interruption of the possession.</p> <p>3. Same—purchaser from heir may claim possession with other heirs as co-tenant. One who purchases the interest of an heir in a tract of land has the right, as a co-tenant with the other heirs, to occupy the common property, and the successive adverse possessions of the several co-tenants may be joined so as to inure to the benefit of all of them in establishing a continuous adverse possession for the period required by the Statute of Limitations.</p> <p>4. Ejectment—vahen question of proof of plaintifFs title is unimportant on appeal. In ejectment, where the case is submitted to the jury on the issue of the twenty year Statute of Limitations, which is found in favor of the defendants on evidence sufficient to support the verdict, the question of the evidence as to the plaintiff’s title is unimportant on appeal.</p> <p>5. Judicial notice—court will take judicial notice of boundary of county. The court will take judicial notice that the Illinois river is the west boundary of Tazewell county and that no lands governed by the fourth principal meridian in the govérnment system of surveying lie east of that river.</p>

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

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

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

<p>1. Workmen’s compensation—when the question of jurisdiction is waived. An employer who enters into an agreement before the arbitrator that both employer and employee were under the Workmen’s Compensation act, and who does not thereafter raise the question either before the arbitrator or the Industrial Board, waives the right to raise any question of jurisdiction before the Supreme Court.</p> <p>2. SaiíE—when finding by the Industrial Board will be upheld. Where no one witnessed an accident resulting in an errand boy’s death by being struck by a passing train while he was carrying a message on the route customarily traveled, and where the evidence as to whether or not a boy who was seen to climb on the train was the decedent is conflicting, the decision of the Industrial Board finding that the accident arose in the course of the employment and awarding compensation will be upheld.</p> <p>3. Same—what evidence as to how accident occurred is not admissible. Where no one witnessed an accident resulting in an employee’s death, the testimony of an interne at the hospital to which the injured employee was taken, as to what the employee told him about the accident, is not admissible.</p>

<p>1. Drainage—if classification is void the assessment is void. Drainage commissioners are required by the Farm Drainage act to classify the lands as a basis for making a drainage assessment, and if the classification is void the assessment is also void.</p> <p>2. Same—classification made outside of district is void—collateral attack. A classification of lands for a drainage assessment under the Farm Drainage act made at a meeting of the commissioners held outside the boundaries of the district is void and is subject to collateral attack on the application of the county collector for judgment for a delinquent assessment.</p> <p>3. Same—when a party is not estopped to object to classification. Where the classification of lands under the Farm Drainage act is made at a meeting held outside th'e boundaries of the district a land owner is not estopped to object to the classification because he purchased his land from one of the commissioners who made the classification.</p>

<p>Constitutional law—what is not a donation to a denominational institution. Where the cost to the county for the care of wards of the juvenile court of Cook county at a denominational institution is less than the cost' at State institutions it is not in violation of section 3 of article 8 of the constitution for the county to pay for the care of such children at such institution. (Dunn v. Chicago Industrial School, 280 111. 613, and Dunn v. Addison Manual Training School for Boys, 281 id. 352, followed.)</p>

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

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

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

<p>Writ oE Error to the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Ogle county; the Hon. James S. Baume, Judge, presiding.</p>

<p>1. Ordinances—amendatory act or ordinance does not purport to repeal an existing act. An amendment is a change or alteration of an existing law or of some of its provisions, and an amendatoryact or ordinance does not purport to repeal an act or section as it previously existed but only changes or amends it to read as therein stated, and the law continues in its changed form.</p> <p>2. .Same—when an ordinance requiring license fee for roofer’s wagons is not invalid. An ordinance requiring a license fee of $10 each for wagons used in the roofing business, enacted under the city’s authority to regulate the use of its streets and not under the power to license vehicles, is not invalid because the city has already enacted a wheel tax ordinance, nor because the width of the tires of the wagons is not prescribed, nor the license fee required to be kept in a separate fund and used only for street and alley improvements.</p>

<p>Appeal from the County Court of Kankakee county; the Hon. Jay H. MERRILL, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of Franklin county; the Hon. W. N. Butler, Judge, presiding.</p>

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

<p>Writ oe Error to the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding.</p>

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

<p>Appeals and errors—burden is on defendants in error to prove plea in bar of writ. Where defendants in error .file a plea in bar of a writ of error alleging a release of error by the acceptance of a sum of money by the plaintiff in error after becoming- of age and with full knowledge of an agreement between his guardian and the executor of his mother’s will for the payment of said sum to settle any right of appeal from a decree construing the will, the burden is on the defendants in error to prove the allegations of the plea, although they are obliged to depend on the testimony of parties whose interests are adverse to theirs.</p>

<p>1. Damages—when measure of damages is value of improvements erected and not increased value of land. Where a plaintiff corporation is entitled to recover under the common counts for improvements erected on land leased from the defendant under a contract which was ultra vires the plaintiff, by the terms of which the defendant was to pay for the improvements if the land became anti-saloon territory, the measure of damages is the value- of the improvements on the date of the happening of such condition and not the enhanced value of the land' by reason of the improvements being placed thereon.</p> <p>2. Interest—when interest cannot be recovered. A recovery of interest cannot be sustained unless interest was contracted for or is authorized by statute.</p> <p>3. Same—when statute allowing recovery of interest for money advanced does not apply. The provision of the Interest act allowing interest “on money lent or advanced for the use of another” does not apply to a proceeding which is not for the recovery of a certain, definite amount of money lent or advanced but for the recovery of the value, on a certain date, of certain improvements on land originally built at the expense of the plaintiff. (Leigh v. American Brake-Beam Co. 205 Ill. 147, distinguished.)</p>

Writ or 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 Honorr, Judge, presiding.

<p>1. Offices-—city cannot create an office except by ordinance, as provided by section 2 of article 6 of the Cities and Villages act. Neither the city of Chicago nor any other city bound by the provisions of section 2 of article 6 of the Cities and Villages act can create an office except by an ordinance passed in accordance with the provisions of said section.</p> <p>2. Same—what mast be shown in a petition for mandamus to compel restoration to an office. One seeking by mandamus to compel restoration to an office must show in his petition that the office legally exists, where it is created by ordinance, and that he has a legal right to it; and the ordinance should be properly pleaded, as the burden is on him to show a right to the office as a de jure officer.</p> <p>3. Same—difference between an officer and an employee. Generally, an officer takes an oath of office while a mere agent or employee does not, and the duties of a mere employee are purely ministerial, as he is not clothed with discretion nor with power to represent dr bind the corporation.</p> <p>4. Same—what is an office. An office is a place in a governmental system created or recognized by the law of the State which either directly or by delegated authority assigns to the incumbent thereof continuous performance of certain permanent public duties.</p> <p>5. Same—difference between a position, an office and an employment. A position is analogous to an office in that the duties that pertain to it are permanent and fixed, but it differs from an office in that its duties may be non-governmental and not assigned to it by any public law of the State, while an employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent.</p> <p>6. Municipal corporations—an employment or a position under a municipal corporation need not be by an ordinance. An employment by a municipal corporation, or a position which is in the nature of a permanent employment, may, in the absence of statutory or charter provisions, be created without the requirement of a formal ordinance, by-law or resolution.</p> <p>7. Same—civil service commissioners of city, and officers under them, are a branch of municipal government. Civil service commissioners of a city, as provided in the Civil Service act, are a branch of the municipal government, and, being city officers, the officers or employees under them are the officers or employees of the city, and can only be discharged in the same manner as any other officers or employees of the city under the. Civil Service law.</p> <p>8. Same—power to create offices of a city belongs to the city. The power to create positions under the civil service commissioners is not vested in the commission itself by any provision of the statute, but the power to create offices, positions and employments of a city belongs to the city itself.</p> <p>g. Same—civil service employee of city cannot be discharged except as provided by section 12 of Civil Service act. The Civil Service act relating to cities is necessarily a part of the contract of employment of every civil service employee, and such an employee can only be discharged in the manner provided by section 12 of said act.</p> <p>' io. Same—when a position cannot be temporarily abolished. While a city operating under the Civil Service law may in good faith discontinue any position or employment which has become unnecessary, neither the city nor the civil service commission may temporarily abolish a position in order to oust the person employed and re-establish it later with another person as employee.</p> <p>11. Mandamus—mandamus will not be denied simply because petition asks court to compel performance of two different acts. In the absence of a special demurrer, where the petition is otherwise sufficient, the Supreme Court will not deny the writ of mandamus simply because the petition asks the court to compel the performance of two different acts, but in such case it may be issued for a part of the relief sought and denied as to a part, or the whole of the relief may'be granted in the absence of a specific objection or defense that only a part of the relief should be granted.</p> <p>12. Same—salary of a position created by appropriation ordinance must be paid from the appropriation. Where a relator is reinstated to a position created by an appropriation ordinance after the appropriation has lapsed, the judgment of the court directing that the relator be paid from the time he was wrongfully discharged until his re-instatement must be construed as entitling him to his salary only up to the time for which the appropriation was made for compensation unless there has been a subsequent appropriation.</p>

<p>1. Criminal law—admissibility of prejudicial matters in voluntary statement. A confession is a voluntary declaration by a person charged with crime of his agency or participation in the crime, but a statement denying participation in a crime is not a confession, and anything in such statement which can be used to the prejudice of the declarant can be excluded only on the ground that it was not voluntarily given.</p> <p>2. Same—whether statements are voluntary depends on the circumstances under which made. ' Whether statements made by a person at an investigation of the crime of which he is suspected were voluntarily made depends upon the circumstances shown to exist when they were made, and such person is not entitled to testify, on his subsequent trial, that he would not have made the statements if he had known he could have refused to do so, nor to state whether he made the statements voluntarily.</p> <p>3. Same—when it is not error to deny motion to exhume body of deceased in a murder trial. Where the evidence in a murder trial is conclusive that a murder was committed either by burning or by fracturing the skull and the only question is who committed the crime, it is not error to deny a motion of the defendant to quash the inquest already held and have the body of the deceased exhumed to examine the fracture, where the circumstances are such that it is inconceivable that one person could have caused the fracture and another the burning.</p> <p>4. Same—defendant in murder trial is not made a witness for the People by introduction of his testimony at inquest. A defendant in a murder trial is not made a witness for the People when the prosecuting attorney introduces the defendant’s testimony at the coroner’s inquest to impeach his testimony in his own behalf, and the rule against impeaching one’s own witnesses cannot be relied upon to protect the defendant in such case.</p>

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

<p>Writ of Error to the Circuit Court of Franklin county; the Hon. P. A. Pearce, Judge, presiding.</p>

<p>1. Guardian and ward—county court may authorise guardian to mortgage ward’s land to secure loan for support of ward. Under the statute authorizing the county court, on petition of a guardian, to sell the real estate of the ward for his support and education, the court may authorize the guardian to mortgage the ward’s land to secure a loan for the same purpose.</p> <p>2. Same—when decree of sale of ward’s real estate cannot be attacked in a collateral proceeding. A decree of the county court having jurisdiction to sell the real estate of a ward upon petition of his guardian cannot be attacked in a subsequent proceeding for the enforcement of a contract to convey the same land, but said decree can be attacked only in a direct proceeding by appeal or writ of error.</p> <p>3. Same—when guardian’s interest will not invalidate sale of wards’ real estate. Where a guardian petitions for the sale of his wards’ interest in real estate, which consists of the remainder after a life estate in their father, who has agreed with the guardian for the sale of his interest, the fact that the guardian is reimbursed from the proceeds of the sale of the life estate, which he held as security for advancements to the father, and is paid from the same proceeds for his conveyance of other land, to the father pursuant to the agreement, will not invalidate the decree of sale.</p> <p>4. Judicial sales—when land in which parties not in being will have an interest may be sold. Land in which persons not in being will have an interest when they come into being may in a proper case be sold free from any such claim or interest if their interests . are identical with the interests of those in being, who are all made parties to the suit, but the decree of sale must protect the interests of parties not in being in the proceeds of the sale.</p> <p>5. Same—effect where decree of sale does not protect interests of unborn children. Where a decree of sale does not protect the interests of unborn children in the proceeds of the sale, after the birth of said children they may, at any time during their minority or within the period allowed by law after arriving at majority, prosecute a writ of error to reverse a decree finding, in a suit to quiet title, that their interests were divested by the decree of sale; but in a collateral proceeding the decree quieting title is conclusive as to all adult parties.</p>