Volume 284 — Illinois Reports

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

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

<p>1. Criminal law—word “impanel” includes all steps in formation of jury preceding the oath. The word “impanel” covers all the steps in ascertaining who shall be the twelve men to sit as jurors in a case and means the final formation of the jury by the court preceding the oath, and a recital in the record that the jury “were duly impaneled and sworn” means the jury as finally formed, and not those, only, who were called for examination as to their competency to serve as jurors.</p> <p>2. Same—when jury need not find age of defendant convicted of rape. Unless there is evidence in the record tending to show that a defendant charged with rape is under twenty-one years of age it is not necessary that the jury find the defendant’s age in their verdict, and where the evidence is not preserved in the record it must be presumed, on review, that there was no contention that the defendant was a minor nor any proof on that subject.</p> <p>3. Same—defendant convicted of rape may be imprisoned for life. The statute providing that “every person convicted of the crime of rape shall be imprisoned in the penitentiary for a term not less than one year and may extend to life,” plainly provides that one convicted of said crime may be imprisoned for life.</p>

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

<p>1. Criminal law—what may be proved in a prosecution for keeping house of ill-fame. In a prosecution for keeping a house of ill-fame or letting rooms for illicit purposes, the practice of prostitution in such house or rooms other than at the time of the letting of the rooms in question, and the bad reputation of those who frequent the place, may be proved, as in such cases guilt must ordinarily be established by circumstantial evidence.</p> <p>2. Same—what conversations in presence of hotel keeper are admissible in prosecution for keeping a house of ill-fame. Where police officers raid a hotel for the purpose of enforcing the statute against keeping a house of ill-fame, conversations between the officers and the couples arrested there, in the presence of the hotel keeper and undenied by him though of a damaging nature, are admissible against him although they do not expressly charge him with the commission of any offense, where the circumstances show he must have known what law the officers were seeking to enforce.</p> <p>3. Same—when admission may be implied from conduct of accused. An admission or confession may be implied from the conduct of a party charged with a crime or with complicity therein who makes no denial or explanations when statements are made in his presence affecting him and the circumstances afford him an opportunity to act or speak in reply and where men similarly situated would naturally deny the implied guilt or make explanations or statements.</p> <p>4. Same—when it is not reversible error to. ref use to allow counsel to argue. In a prosecution for the violation oí a statute, where a jury is waived and the evidence is heard by the court, the judge should permit both counsel to present briefly their respective views before attempting to decide that case; but it is not reversible error to refuse to allow counsel to argue where no attempt to argue is made until after the judge has stated what his conclusions are to be.</p>

<p>1. Wills—mental capacity must be determined as of date of will in question although it is a copy of a former will. Although a testatrix may have been competent to make, and did make, a former will, which she later destroyed and made a second will like the former from a photographic copy of the first, on a contest of the . second will on charges of mental incapacity and undue influence the question to be determined is whether the testatrix had testamentary capacity when the last will was made, although the execution of the former will is an important circumstance to be considered.</p> <p>2. Same—when decree setting aside vaill should not be reversed on evidence. Where a will is contested on grounds of mental incapacity and undue influence, although there is testimony that the testatrix was of sound mind, a decree setting aside the will should not be reversed as contrary to the weight of the evidence, where a considerable number of credible witnesses intimately acquainted with the testatrix testify that she was not of sound mind in the year in which the will was executed and give good reasons for their opinions.</p> <p>3. Same—when refusal to take issue of undue influence from jury is not reversible error. Where a will is contested on grounds of mental incapacity and undue influence and the verdict is that the instrument is not the last will and testament of the testatrix, which finding is warranted on the ground that the testatrix was not of sound mind, a decree setting aside the will should not be reversed because the issue of undue influence was not taken from the jury, even though evidence to support that issue was very slight.</p> <p>4. Same—when paper signed by testatrix is admissible on question of mental capacity. A paper signed by the testatrix and three other persons and purporting to be a brief will bearing date a month previous to the execution of the will which is being contested on grounds of mental incapacity and undue influence, is admissible when limited to the issue of the condition of the mind of testatrix.</p>

<p>Deeds—when limitation over depends upon death of grantees during life of_ grantor. Where a deed reserves a life estate in the grantor and provides that “at his death the title in fee simple shall become vested in” his three named sons, but that in case of the death of either of the grantees-his interest shall vest in his wife or child, if he leaves any, otherwise to vest in the surviving grantee or grantees, the limitation over depends upon death of a grantee during the lifetime of the grantor, and if all the grantees survive the grantor the title in fee simple vests in them at his death.</p>

<p>1. Workmen’s compensation—statements of a deceased employee as to how he was injured cannot be testified to. .In a proceeding under the Workmen’s Compensation act to recover compensation for the death of an employee, the deceased employee’s relatives and his physician cannot testify to statements made by him as to how he received the injury which resulted in his death.</p> <p>2. Coroners—a coroner’s inquest is not limited to deaths supposed to have resulted from violence. The word “casualty,” in the statute authorizing the coroner to hold an inquest over a dead body, is used in its ordinary meaning to indicate a fatal or serious accident, and the right to hold an inquest is not restricted to cases where the death is supposed to have resulted from violence or any undue means indicating the commission of a crime.</p> <p>3. Same—when coroner’s verdict is admissible in action under Workmen’s Compensation act. Where the circumstances justify holding an inquest over the body of a deceased employee and the coroner’s verdict finds only such facts as the law authorizes and requires to be found the verdict is competent evidence in a proceeding to recover compensation for the death under the Workmen’s Compensation act, regardless of whether or not the effect of the finding is to make a prima facie case for an award.</p> <p>Cartwright, Dunn and Cooke, JJ., dissenting.</p>

<p>1. Deeds—conveyance by parent to child is not, alone, evidence of undue influence. A conveyance by a parent to a child is not, of itself, evidence of undue influence.</p> <p>2. Same—delivery of a deed to third party, to be delivered to grantee after grantor's death, is good. The unconditional delivery of a deed by othe grantor to a third party, to be delivered to the grantee after the grantor’s death,- is a good delivery.</p> <p>3. Same—presumption of delivery in a voluntary settlement is stronger than in case of bargain and sale. The question of delivery is to a great degree a question of intention, and the presumption of delivery in the case of a voluntary settlement by a deed from a parent to a child is stronger than in an ordinary case of bargain and sale.</p> <p>4. Trusts—parol evidence to establish a constructive trust must be convincing. Where it is sought to establish a constructive trust and transfer the beneficial title to real estate by parol evidence the evidence must be clear and convincing and must establish definitely the terms of the trust.</p>

<p>1. Constitutional law—when police power may be exercised for the regulation of trades. An individual has the right to pursue, without restriction, any trade or calling which is not injurious to the public, and the exercise of the police power for the regulation of trades can be justified only on the ground of necessity for the health, safety or welfare of society.</p> <p>2. Same—reasonable regulation of barber trade is within police power. The reasonable regulation of the barber trade is within the scope of the police power of the State for the promotion of the public health, safety and welfare, and a requirement of three years’ apprenticeship of persons learning the trade is not an unreasonable restriction upon the right to engage in the occupation.</p> <p>3. Same—act of ipop for regulation of barber trade does not make illegal classification. The act of 1909 for the regulation of the barber trade, (Taws of 1909, p. 98,) requiring three years’ apprenticeship of persons learning the trade, does not constitute class legislation because it does not apply to barbers already engaged in the occupation, as the act is prospective, only, in its operation.</p>

<p>1. Schools—high school curative act of 1917 does not violate constitutional provision for due process of law. Section 2 of the high school district curative act of 19x7 (Laws of 1917, p. 744?) does not violate section 2 of article 2 of the constitution, as the act itself constitutes due process of law. (People v. Mathews, 282 Ill. 85, adhered to and explained.)</p> <p>2. Same—judgment against railroad company for school taxes should he against the right of way in the district, only. A judgment against a railroad company for high school district taxes should be only against the right of way in the school district and within the county, and where the application for judgment describes the right of way as commencing at one boundary and extending to the opposite boundary of the county the judgment should not be against the lands as so described.</p>

<p>Writ or Error to the Circuit Court of Peoria county; the Hon. John M. NiEhaus, Judge, presiding.</p>

<p>Writ or Error to the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding.</p>

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

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

<p>Writ oe Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>Appeal from the County Court of Greene county; the Hon. Thomas Henshaw, Judge, presiding.</p>

<p>1. Practice—Supreme Court may by certiorari review Appellate Court’s judgment in forcible detainer. Under section 121 of the Practice act, as amended in 1909, the Supreme Court may grant a writ of certiorari to the Appellate Court to review its judgment in an action of forcible entry and detainer for the restitution of the premises, only, as such action is not ex contractu.</p> <p>2. Forcible detainer—action of forcible detainer is purely possessory. Under the Illinois statute the action of forcible entry and detainer is a purely possessory civil remedy for the restitution of premises of which the plaintiff is unjustly deprived, and the right to possession is all that is involved or can be determined.</p> <p>3. Principal and agent—principal is bound by contract made by agent though agent could not read it. A contract made by an agent in a matter which his principal has intrusted to him is binding upon the principal though the agent could not read it and did not, as was his duty, have it read to him, and in a forcible detainer suit by the principal it is error to allow the agent to testify that he could not read the contract.</p> <p>4. Contracts—illiteracy is not a defense to a contract. Illiteracy is not a defense to a contract, and if a party cannot read an instrument it is his duty to have it read to him, as one who is unable to read is not permitted to make contracts without the usual precaution to ascertain what they mean.</p>

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

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

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

<p>1. Drainage—when objectors are estopped to set up legal objections to an assessment. On application by the county collector for judgment for an installment of a farm drainage assessment land owners cannot object that the entire assessment is void because of the disregard of statutory requirements and that it is levied to pay prior indebtedness, where they filed objections to the applications for judgment for previous installments of the same assessment, which were overruled and judgment and order of sale entered.</p> <p>2. Same—objectors not estopped to insist previous assessments have equaled benefits. Under the constitutional right of every property owner to a hearing on the question whether a drainage assessment exceeds the benefits to the land, objectors to the application of the county collector for judgment for a seventh installment of a farm drainage assessment are not estopped to insist that the payments of previous assessments and installments have equaled the total benefits derived from the entire improvement.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.

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

<p>1. Drainage—when figures in assessment roll need not be preceded by dollar mark. Where the amounts of an assessment in the assessment roll are stated in figures in columns, according to the usual method of setting down dollars and cents but without the dollar mark, the omission of the dollar mark is not fatal where the figures are followed by a statement showing the aggregate amount of the assessment in dollars and cents.</p> <p>2. Same—record need not show affirmatively that commissioners examined the land. The assessment roll need not show that the commissioners went upon the land and examined it for the purpose of the assessment, as it is not necessary that the record affirmatively show that fact.</p> <p>3. Same—the assessment roll does not constitute the assessment against lands. The assessment roll in a levee drainage assessment is merely presented as a claim of the commissioners against the tracts of land assessed, and although it makes a prima facie casé for the commissioners it does not become an assessment unless made so by the verdict of the jury.</p> <p>4. Same—legality of estimate of cost as basis for assessment must be determined by court. Where an assessment is levied before the work which it is to pay for has been done the assessment is necessarily based upon an estimate of the probable cost of the work, and all questions touching the legality of the estimate as a basis for an assessment are to be submitted to and determined by the court and are not for the jury.</p> <p>5. Same—annexed lands may be assessed proportionately for original cost of work without reference to the former assessment. Lands annexed to a drainage district under section 58 of the Levee act may be assessed for benefits and to pay their proportionate share of the original cost of work which has been completed, the amount collected being rebated proportionately to the lands originally assessed, and the assessment is to be made without reference to the former assessments.</p> <p>6. Same—the court should find cost of work as the basis for assessment against annexed land. The fact that the benefits to annexed lands are equal to the assessment is only one of the conditions necessary to a valid assessment, which is further limited to a proportionate share of the cost of the work done, and the court should determine the cost of the work done and submit the same to the jury, so that it may determine the proportionate share of • the amount which the annexed lands should, contribute.</p>

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

<p>Criminal law—judgment should be reversed when evidence dees not establish guilt beyond a reasonable doiíbt. A reviewing court should give due weight and importance to the verdict of the jury, and a judgment of conviction will not be reversed simply because the evidence is conflicting, but where the evidence fails to establish guilt beyond a reasonable doubt it is the duty of a reviewing court to reverse the judgment.</p>

<p>Wills—contingent remainder destroyed by conveyance of life estate and reversion in fee. Where a testator devises a life estate with a contingent remainder limited to take effect upon the death of the life tenant the reversion in fee descends to the heirs-at-law pending the vesting of the remainder, and a conveyance of the life z estate and of the reversion in fee to the same person will destroy the life estate, which becomes merged in the fee and defeats the contingent remainder, which no longer has a particular estate to support it.</p>

<p>1. Specific performance—specific performance rests in discretion of chancellor, to be exercised as circumstances require. The granting of specific performance of a contract is not a matter of absolute right but rests in the sound discretion of the chancellor, to be exercised as the circumstances and the equities between the parties may require, as it is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of chancery assumes jurisdiction to enforce it.</p> <p>2. Same—when appellees cannot assign cross-error on failure to cancel a contract. On appeal by the complainant in a bill for specific performance from a decree dismissing both the original bill and a cross-bill to cancel the contract as a cloud on title, the appellees cannot assign cross-error on the dismissal of the cross-bill, where at the time of the hearing they had conveyed the property to a person not a party to the record.</p> <p>3. Cloud on title—•complainants must allege and prove title in themselves. In order to maintain a bill to cancel a contract or other instrument as a cloud upon title the complainants must allege and prove title in themselves.</p>

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

<p>1. Special assessments—judgment of city council as to necessity for paving street is conclusive if not unreasonable. The necessity for the paving of a street is committed to the judgment of the city council, and that judgment is conclusive unless the evidence clearly satisfies the court that the council’s action is unreasonable and oppressive, and if there is room for a reasonable difference of opinion the action of the council is final.</p> <p>2. Same—cemetery property is liable for assessment for paving street. The property of a religious corporation which is used exclusively as a cemetery, in which lots are sold to both members and non-members of the church congregation, is liable to special assessment for the paving of an adjacent street where the corporation is not a charitable corporation, although graves are given to some persons who are unable to buy lots.</p> <p>3. Same—when judgment of confirmation will not be affirmed although evidence as to benefits is conflicting. Ordinarily, when the evidence as to the extent property will be benefited by a local improvement is conflicting, the Supreme Court will not disturb the judgment, but where the court is satisfied, from the evidence and nature of the property and the permanent use to which it is put, that it is assessed more than it is benefited the judgment of confirmation will not be affirmed, notwithstanding there is testimony tending to support the amount assessed.</p>

<p>i. Workmen’s compensation—section 2p of the Workmen’s Compensation act is not invalid. Section 29 of the Workmen’s Compensation act does not violate the State constitution as not providing a certain remedy to an injured party nor as delegating judicial power to arbitrators, and does not contravene the fourteenth amendment to the Federal constitution as taking property without due process of law. (Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413, and Deibeikis v. Link-Belt Co. 261 id. 454, followed.)</p> <p>2. Same—when employment of a plumber is not casual. The employment of a plumber by an employer engaged in the plumbing business under a firm name, the employment being for a fixed rate of wages and to continue so long as the plumbing company has work to do, is not a casual employment.</p> <p>3. Same—rule as to when owner of building is engaged in business of maintaining it. The erection, maintaining or repairing of a dwelling house by the owner, which is neither the occupation, enterprise or business of the owner, does not bring him within paragraph (&) of section 3 of the Workmen’s Compensation act, which makes extra-hazardous the building, maintaining, repairing or demolishing of any structure; but the owner of a large building rented as a lodge room, dance hall and for offices, whose occupation is the maintaining of the building, is within the terms of said paragraph when having the building repaired.</p>

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

<p>1. Contracts—release under seal is bar to action at law. In an action at law a release under seal by a person of his cause of action is a complete bar unless its execution is shown to have been obtained by fraud, as- such a release carries with it the presumption that it was executed for a valuable consideration, and to impeach such an instrument for fraud relating to the consideration and not ■to its execution resort must be had to a court of equity.</p> <p>2. Same—release not under seal may be impeached for want of consideration. Where a release is not under seal a defense can be made in an action at law that it was without consideration, or that there was payment of only a portion of the amount' due whereas the release ufas of the whole amount without further consideration.</p> <p>3. Conflict of laws—when validity of release is governed by law of place zvhere made. Where an insured releases any action he may have against an insurance company, the validity of the release is governed by the law of the State where it is executed and the contract completely performed.</p> <p>4. Same—what does not preclude presumption that common law ■prevails in other States. In Illinois, if the question as to the law of another State is raised, the presumption that the common law prevails there is not precluded by the mere fact that in Illinois the particular subject is controlled by statute.</p> <p>5. Same—when sufficiency of seal on release executed in Oregon will be tested by common law. Where a release purporting to be under seal is executed in the State of Oregon, in the absence of any evidence as to the law on the subject in said State it will be presumed by the courts of Illinois, in view of the facts, of which the courts will take judicial notice, that the common law prevails in the State of Oregon, and the sufficiency of the alleged seal will be tested by the principles of the common law.</p> <p>6. Seal—a scroll is not a seal at common law. At common law a seal is an impression upon wax or some tenacious substance, and a scroll embracing the letters “L. S.” is not a common law seal.</p> <p>7. Actions and defenses—•when question of remedy is not involved in a suit against an insurance company. In an action of tort against an insurance company to recover possession of a policy claimed to have been obtained by fraud and duress of the company in the settlement of the claim, no real question of remedy arises under pleas setting up a release purporting to be under seal and executed by the insured at the time of the settlement, as that question arises only when the policy is sued on.</p> <p>8. Same—when demand and refusal are not necessary in suit to recover possession of insurance policies. In an action against insurance companies on a declaration charging them with having wrongfully obtained possession of the policies of the insured by means of fraud and containing a general count in trover, a demand and refusal are not necessary if the taking was tortious.</p> <p>9. Debtor and creditor—acceptance of a sum less than amount due does not discharge debt. An acceptance by a creditor of a sum less than the amount due in satisfaction of a demand of a sum due, without further consideration, does not discharge the debt.</p> <p>10. Appeals and errors—when Appellate Court should make finding of facts. In an action at law the Appellate Court, where it reverses the judgment on questions of law, should either remand the cause for further trial or should make a finding of ultimate facts from the evidence or stipulations in the record in order to enable the Supreme Court to review the case upon questions of- law.</p> <p>11. Judicial notice—of what facts of history court will take judicial notice. In determining the presumption as to whether the common law prevails in another State the Supreme Court will take judicial notice of the boundaries of the territory before it became a State, the nature of its acquisition by the United States and of the general characteristics of the country and- general nationality of the settlers and inhabitants.</p>

<p>Writ oe Error to the Circuit Court of Shelby county; the Hon.1 J. C. McBride, Judge, presiding.</p>

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

<p>1.. Workmen’s compensation—when physical examination, required to qualify the employee, is waived by the employer. Where the trainmaster and yardmaster in charge of the employment of workmen in a railroad company’s yards engage a person who is already an employee of the company to run a motor car used in switching without requiring the employee to pass the physical examination required before employment, the examination and formal acceptance of the employee is waived by the railroad company, and the company will be liable in an action for the death of the employee while engaged in his work.</p> <p>2. Same—when burden is on a railroad company to show that employee was engaged in inter-State commerce. Where a railroad company is engaged both in inter-State and intra-State cómmerce, to relieve itself of its obligation to pay compensation under the Illinois statute for the death of an employee engaged in switching it is incumbent upon the company to show that the work being done at the time of the injury was in inter-State commerce.</p>

<p>x. Criminal law—when evidence of hostile acts is no defense to charge of murder committed during race riot. On the trial of certain negroes for killing a policeman during a race riot, as the result of a conspiracy to kill any white person who might appear in the negro neighborhood, evidence that a conspiracy had been entered into by a number of white residents in the vicinity and acts of violence committed on negroes is not admissible.</p> <p>2. Same—improper exhibitions in the court room should be objected to on the trial. Defendants charged with murder committed during a riot should object at the trial to improper exhibitions of guns and shells which they claim had no connection with the case and should preserve the ruling of the court on the objection by a bill of exceptions, and the objection will not be considered by the Supreme Court where the matter is in the record only by way of affidavit made in support of a motion for new trial.</p> <p>3. Same—a defendant shoiild object to alleged improper statements in argument of prosemting attorney. A defendant who desires to assign for error in the Supreme Court that the prosecuting attorney made improper statements in his argument to the jury should call the matter to the attention of the trial court at the time and preserve the objectionable statements, and the-ruling thereon, in the bill of exceptions, and it is not sufficient to embody such statements in an affidavit filed in support of a motion for new trial.</p> <p>4. Same—when stenographer cannot testify from notes taken at inquest. To rebut the testimony of a witness at a murder trial who testified at the coroner’s inquest it is proper to refuse to allow the stenographer who Took notes at the inquest to testify from her notes, where she is unable to swear whether the testimony she took down was in the language of the witness or of the coroner, who directed her what to take down and sometimes summed up the testimony in his own words.</p> <p>5. Same—instructions as to reasonable doubt should be concise. There is no better definition of the meaning of the words “reasonable doubt” than the words themselves and instructions on such subject should be brief and concise, but the mere fact that they are long and involved is not necessarily ground for reversal, even though they should not have been given.</p> <p>Duncan, C. J., and Carter, J., specially concurring.</p>

<p>1. Cemeteries—property rights of possessor of lot in a cemetery. The possessor of a lot in a cemetery does not acquire a fee simple title but has a property right which the law protects from invasion, whether by a mere trespasser or by the trustees of the cemetery; and this right continues as'long as the place is used as a burial ground, but is subject to municipal regulation and is legally revocable whenever the public necessity requires.</p> <p>2. Same—right of burial includes right of erecting mounds and momtments. The possessor of a lot in a cemetery has a right to bury therein according to the usual custom in the neighborhood, including the right of making mounds over and erecting stones and monuments at the graves, and the right to make such erections necessarily carries with it the right to protect them from spoliation.</p> <p>3. - Same—equity may enjoin owner of burial ground from defacing graves. A court of equity will enjoin the legal owner of land deeded or dedicated for burial purposes from defacing or meddling with the graves therein, at the suit of any party having relatives or friends buried therein.</p> <p>4. Same—trustees of burial ground cannot change lines of lots in use. Trustees of land deeded for burial purposes, though it is not a cemetery created under the statute, are entitled to have a certain supervision over the lots; but even though persons have been permitted to choose their own burial lots without charge, the trustees cannot disturb the graves or change the lines of lots in use for burial purposes when re-platting the unused portion of the ground.</p> <p>5. Same—right of trustees of burial ground to sell unused lots. Trustees of land deeded for burial purposes in a community may re-plat the portion of the ground not already in use and sell the lots for burial purposes notwithstanding no charge has previously been made for burial lots, where there is nothing in the deed to the trustees requiring the lots to be free; but no portion of the lots already in use can be encroached upon or sold.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, 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 Elon. John Gibbons, Judge, presiding.

<p>1. State’s attorneys—power of State’s attorney to enter nolle prosequi is matter of practice. In England the Attorney General was the representative of the crown and the power to enter a nolle prosequi at his own discretion was a prerogative of the office to which there was no limitation, but the power of a State’s attorney to enter a nolle prosequi is not a matter of substantive law but of practice.</p> <p>2. Same—powers of State’s attorney are not co-extensive with those of the Attorney General. A State’s attorney is a cojinty officer elected for and within the county to perform duties enjoined upon him by statute, and his powers are not co-extensive with those of the Attorney General, w.ho is the chief law officer of the State.</p> <p>3. Same—the State’s attorney is not the only person who may prosecute in municipal court an offense punishable by fine. Under section 27 of the Municipal Court act criminal offenses punishable by a fine, only, may, in the discretion of the court, be prosecuted as in cases before justices of the peace, and the court may commit the prosecution to a person other than the State’s attorney if the latter declines to act.</p> <p>4. Same—judge is not a mere ministerial officer for recording the will of the State’s attorney. While the acts of a State’s attorney are not purely ministerial but involve in a large measure the exercise of discretion, yet it does not follow that a judge charged with the administration of the law has no authority over the records of his court but is a purely ministerial officer for recording the will of the State’s attorney in the conduct of criminal cases.</p> <p>5. Same—when judge cannot be compelled by mandamus to enter a nolle prosequi. The power of a State’s attorney to enter a nolle prosequi in the municipal court of Chicago in a case where the punishment is by fine, only, is not absolute but is subject to the approval of the court, and on petition for mandamus by a State’s attorney to compel a judge of the municipal court to enter a nolle prosequi in a prosecution for violating the Sunday-closing law the discretion of the court cannot be reviewed.</p> <p>Farmer, J., dissenting.</p>

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

<p>Appeals and errors—when decree requiring husband to convey land to his former wife must be affirmed. A decree requiring a husband to convey to his former wife an undivided half interest in property must be affirmed, where the preponderance of the evidence shows that, notwithstanding there was a written contract by the owner of the land to convey the same to the husband and wife as joint purchasers, the husband procured the conveyance to be made to himself, alone.</p>

<p>Writ op Error to the Circuit Court of Marshall county; the Hon. J. M. NiEhaus, Judge, presiding.</p>

<p>1. Insurance—when a corporation cannot recover insurance after fire directed by stockholder. Where a fire which destroyed the property of a corporation is set at the direction of a stockholder who is beneficial owner .of practically all the stock, has absolute control of the corporation as president and director and is a creditor of the. company to an amount more than the insurance, the corporation cannot recover the insurance.</p> <p>2. Same—incendiary ivill not be allowed to recover insurance indirectly. An incendiary cannot by circuity of action recover from an insurance company a loss occasioned by his own willful conduct, which loss he could not recover by a direct suit against the company on a policy made direct to him.</p> <p>3. Evidence—cross-examination of party in interest need not be Confined to examination in chief. The cross-examination of a party in interest need not be confined to the subject matter of the examination in chief.</p>

<p>1. Drainage—question whether all property has been included cannot be raised on hearing of objections as to benefits. Under the Levee act the question whether all the property that will be benefited has been included within the drainage district cannot be raised on the hearing of objections to the assessment of benefits, where the objector has failed to appeal from the order of organization finding that the commissioners “have described all the lands which will be benefited.”</p> <p>2. Same—when jury are justified in making assessment according to assessment roll. Where the jury do not view the premises they are justified in making an assessment in accordance with the assessment roll if the objector fails to furnish any testimony on his own behalf upon which to base a different assessment, and it is not sufficient for the objector to show merely that the amount set down in the assessment roll exceeds the benefits to his land or is more than the proportionate share of the cost of the improvement.</p> <p>Carter, Cartwright and Dunn, JJ., dissenting.</p>

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

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

<p>Disbarment—commissioner’s findings are conclusive when respondent does not present all the evidence. Where the respondent in a disbarment proceeding does not present to the Supreme Court all the evidence upon which the commissioner’s findings of fact are based such findings are conclusive, and the only question is whether the facts found warrant the commissioner’s conclusion that the respondent be disbarred.</p>

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

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

<p>1. Wipes—executor has interest in will to authorize him to appeal from order denying probate. The person named in a will as executor has an interest in the will, within the meaning of the statute, which authorizes him to appeal to the circuit court from an order denying probate of the will.</p> <p>2. Same—what proof of execution is sufficient to admit will to ■ probate. Where one attesting witness does not remember anything in regard to the execution and attestation of the will except that he signed it in the presence of the testator after being called on the telephone for that purpose, but the other attesting witness' testifies that both witnesses signed in the presence of the testator, that the testator signed in their presence, and that within the hearing of the testator (who was of sound mind) he told the other witness that the testator wanted him to witness the will and showed him where to sign his name, the proof of execution and attestation is sufficient to admit the will to probate.</p>

<p>Appeal from the County Court of Champaign county; the Hon. Roy C. Freeman, Judge, presiding.</p>

<p>Contracts—what constitutes a sufficient consideration. A contract to be legally binding must be based on a consideration, but any act which is a benefit to one party and a disadvantage to the other constitutes sufficient consideration.</p>

<p>1. Wills—-when the voord "heirs” cannot be construed to mean "children”—rule in Shelley’s case. A devise to the testator’s daughter for and during her natural life and at her death to her heirs forever is clearly within the rule in Shelley’s case, and where there is nothing in the context of the will to indicate that the word “heirs” is not used in its technical sense the word cannot be construed to mean “children.”</p> <p>2. Sams—a court of equity cannot assume jurisdiction to construe a will which is not ambiguous. A court of equity will not assume jurisdiction of a bill to construe a will which is neither ambiguous nor uncertain or where there is no equitable estate to be protected or equitable right to be enforced, and the court cannot acquire such jurisdiction by allegations that a question requiring construction exists, when the record shows no such question.</p> <p>3. Same—when court of equity will not take jurisdiction to remove a cloud. A cloud upon a title is a claim, apparently valid, which may be removed by extrinsic evidence, and equity will not take jurisdiction to remove a cloud on a title under a will where there is no defect in the title except what is apparent on the face of the will, nor where the alleged cloud consists of mere verbal claims of parties against an owner in possession.</p>

<p>1. Deeds—burden of proof is on husband seeking to set aside wife’s deeds. Where a husband sues to set aside his wife’s deeds on the ground that the property conveyed, which stood in the wife’s name, was purchased with his money, the complainant must establish such fact by clear, strong and unequivocal evidence.</p> <p>2. Same—grantee standing in fiduciary relation must rebut presumption of undue inñuence. Where a conveyance is made to a person occupying a relation of trust and confidence to the grantor and confers a beneficial interest upon the grantee it is presumed that it was procured through his undue influence, and the burden of proof is on him to rebut the presumption.</p> <p>3. Evidence—admissibility of statements in presence of person who does not deny them. Statements made in the presence of a person and not denied are admitted in evidence against him on the theory that his silence when he might and naturally would deny the statements if they were untrue is regarded as an acquiescence in their truth, but unless his conduct, under the circumstances, is such as to raise a reasonable inference that he admitted the truth of the statements they are inadmissible.</p>

<p>1. Criminal law—judgment will not ordinarily be reversed on facts depending on credibility of witnesses. The law has committed to the jury the determination of questions of fact, and where the decision of a criminal case depends upon the credibility of witnesses, a judgment of conviction on the verdict will not be reversed on the facts unless the evidence clearly indicates a reasonable doubt of guilt.</p> <p>2. Same—what weight should be given the testimony of an accomplice. If an accomplice gives testimony which tends in any degree to exonerate himself or to lay the blame of the transaction upon another, or if it appears that he will gain in any way by his testimony, such facts should have great weight with the jury and the trial court, but the testimony of an accomplice may be of such a character as to carry with it an absolute conviction of its truth.</p> <p>3. Same—what tends to show guilty knowledge of a defendant charged with receiving stolen goods. On a trial for receiving stolen goods direct proof of guilty knowledge cannot often be obtained and is not essential, but proof of circumstances such as purchasing the property for less than its real value from an unknown person without inquiry as to the source of his title, or other circumstances which would induce a belief in the mind of a reasonable person that the property has been stolen, is sufficient.</p> <p>4. Same—when instruction does not assume guilt of defendant. An instruction stating that the object of the rule that the jury must be satisfied of the guilt of the defendant beyond all reasonable doubt is to guard against the danger of an innocent person being unjustly punished and not to aid anyone to escape who is, in fact, guilty of the crime of which he is accused, is not objectionable as assuming the guilt of the defendant.</p>

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

<p>Appeal from the County Court of Sangamon county; the. Hon. John B. Weaver, Judge, presiding.</p>

<p>1. Drainage—zvhen land ozvners cannot object to order vacating appointment of commissioners. Where an original petition for the organization of a drainage district is filed and commissioners are appointed and the cause continued pending their report, objectors whose land is included in a supplemental petition seeking to add more territory to the district cannot object to an order vacating the appointment of the commissioners under the original petition, in which their lands were not included and to which they were not parties.</p> <p>2. Same—under 'section 4 of Levee act petition for organisation of district may be amended. Under section 4 of the Levee act a legal petition sufficient to confer jurisdiction on the county court for the organization of a drainage district may be'amended by permitting the signatures of other petitioners to be added, by changing the plan of the work proposed or by changing the boundaries of the district, and the court may treat the original and a supplemental petition as one amended petition, in accordance with the request of the signers of both petitions.</p> <p>3. Same—when land ozvners cannot object that report does not show commissioners examined land after re-appointment. Where, upon the filing of a supplemental petition to include more territory in the district, the appointment of the drainage commissioners is vacated by consent and the same commissioners are again appointed, land owners in the new territory cannot object that the commissioners’ report does not show they went upon and examined the land after their second appointment, where they had just completed a thorough examination of the entire district, as shown by their report.</p> <p>4. Same—drainage district may be organised without including all land benefited. There is no requirement of the Levee actotliat all the lands which will be benefited must be included in the organization of a drainage district, for the act provides means for adding to a district lands which were not included in it but have been benefited by the work.</p> <p>5. Same—petition for organisation of a district may be filed in county where most of land lies. The Levee act provides that the petition for the organization of a drainage district may be filed in the county in which the greater part of the lands proposed to be organized into a district shall lie, and it is not required that the greater part of the lands benefited shall lie in that county.</p>

<p>Writ op Error to the Circuit Court of Hardin county; the Hon. Charles H. Miller, Judge, presiding.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.</p>

<p>Writ op Error to the Circuit Court of Hardin county; the Hon. Charles H. Miller, Judge, presiding.</p>

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

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

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>1. Drainage—question of benefits in farm drainage districts may be raised on collector’s application for judgment. A drainage assessment cannot exceed the benefits to the land, and the question whether the assessment exceeds the benefits may, in the case of farm drainage districts, be raised on the collector’s application for judgment and order of sale.</p> <p>2. Same—when land owner is not estopped to raise question of benefits. The fact that a land owner in a farm drainage district has paid several installments of a drainage assessment and several intervening single assessments does not estop him to object, on application by the collector for judgment for a later installment, that the amount he has already paid on the various assessments exceeds the total benefits to his land from the improvement.</p>

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

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

<p>This case is controlled by the decision in Inlet Swamp Drainage District v. Gehant, (ante, p. 180.)</p>

<p>1. Municipal corporations—city may authorise the board of health to make regulations for the suppression of disease. Under clause 78 of paragraph 62 of article 5 of the Cities and Villages act a city may authorize a board of health to make all regulations which are necessary or expedient for the promotion of health or suppression of disease^ and in exercising such power the board of health is performing an administrative and not a legislative function.</p> <p>2. Schools—when vaccination rule of board of health is lawful. A board of health having general authority from the city to make regulations needful for the suppression of disease, may, when smallpox is epidemic in the city, lawfully make a rule excluding children from the public schools for a period of two weeks unless they have recently been vaccinated or unless they shall produce a certificate that they have been successfully vaccinated within five years or have had small-pox.</p> <p>3. Same—the right to have children attend school is subject to reasonable health regulations. The right of a citizen to have his children attend public school is subject to the right of lawfully authorized authorities to make and enforce such reasonable regulations as are necessary to present the spread of a contagious disease which is epidemic in the vicinity.</p>

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

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Massac county; the Hon. D. T. Hartwell, Judge, presiding.</p>

<p>1. Workmen’s compensation—what kind of “excavation” is extra-hazardous. Any kind of excavation that is attended with more than ordinary dangers of a simple occupation is extra-hazardous within the meaning of paragraph 2 of section 3 of the Workmen’s Compensation act, which mentions “construction, excavating or electrical work;” and this includes the digging of sewer trenches with shovel and spade.</p> <p>2. Same—when injury arises out of and in the course of employment. ' A sewer digger who, while riding with his employer in the latter’s automobile truck at the employer’s request, for the purpose of getting material for use at the place where the excavation for a sewer is going on, is injured by a collision between the automobile and a street car, is within the protection of the Workmen’s Compensation act, and the injury is one arising out of and in the course of his employment though he had not reached the place where the excavating work was going on.</p> <p>3. Same—when employment is not casual. The word “casual,” used in the Workmen’s Compensation act, has reference to the contract for service, and where a workman has been employed for several months as a sewer digger his employment is not casual, even though at the time of his injury he was riding with his employer, at the latter’s request, to get material for use in the excavating work then being done.</p> <p>4. Same—when amount awarded by Industrial Board is conclusive. If the finding of the Industrial Board as to the amount to be awarded for permanent partial disability is within the limit authorized by law and is a legitimate conclusion from the facts shown by competent evidence it is conclusive upon the Supreme Court.</p>

<p>1. Workmen’s compensation—what is meant by “casual” employment. Workmen must be regarded as engaged in “casual” employment, within the meaning of the Workmen’s Compensation act, when they are employed only occasionally, irregularly or incidentally as distinguished from those who are employed regularly and continuously.</p> <p>2. Same—when employment is casual. The employment by a railroad company of structural ironworkers for a few days’ work on a driveway being constructed from a public viaduct to the company’s freight house is a casual employment within the meaning of the Workmen’s Compensation act.</p>

<p>1. Wills—where a will should be probated.. The probate of a will, in the first instance, should be made in the place of the testator’s domicile at the time of his death, whether the will was executed at that place or elsewhere.</p> <p>2. Same—language of section p of Statute of Wills construed. The. language of section 9 of the Statute of Wills requiring the authenticated copy of a will probated in a foreign State to be accompanied by a certificate as to its due execution and proof “agreeably to the laws and usages of that State or country in which the same was executed,” means agreeably to the laws and usages of the State or country where the certificate was executed and not where the will was executed.</p> <p>3. Same—what necessary before copy of will is evidence of title. Under section 9 of the Statute- of Wills, before an authenticated copy of a will probated in a foreign State can be evidence of title it must be accompanied by a certificate that the will was executed and proven agreeably to the laws and customs of the State where the certificate was executed, and the authenticated copy and certificate must be recorded in the office of the clerk of the probate court.</p> <p>4. Same—recording copy of a will in office of circuit clerk does not make it evidence of title. The recording in the office of the clerk of the circuit court of a properly authenticated copy of a will probated in a foreign State does not make the record evidence of title under section 33 of the Conveyances act but only constructive notice, unless it is also recorded in the office of the clerk of the probate court.</p> <p>5. Same—when a will executed in Illinois need not be probated here. Where a will made in Illinois, where the land disposed of is located, is probated in the foreign State where the testator was domiciled at the time of his death, it is not necessary to probate the will in Illinois in order to pass title,, provided a properly authenticated copy of the will, accompanied by the certificate required, is recorded in the office of the clerk of the probate court of the county where the land is located.</p>

<p>Writ op Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.</p>

<p>1. Garnishment—basis of garnishee’s right to withhold money or property. The right of a garnishee to refuse to turn over money or property to the person for whom he holds it is based wholly on the theory that he has a right to protect himself and escape from incurring liability which in fairness and justice he ought not to incur.</p> <p>2. Same—when corporation garnishee has no right to refuse to transfer stock. A corporation which procures the institution by certain banks of attachment suits against a stockholder upon an indebtedness for which the corporation is primarily liable and against which it had agreed to hold the stockholder and his estate harmless, has no right, though named as garnishee, to refuse to transfer shares of stock to an assignee of the stockholder upon demand.</p> <p>3. Trover—when corporation is guilty of conversion of stock. Where a corporation, by procuring the institution of attachment suits against a stockholder, seeks to obtain a sale of the latter’s stock for its own benefit, and, though having knowledge of an assignment of the stock by the stockholder, fails to disclose that fact to the court in its answer as garnishee and refuses to transfer the stock on demand of the assignee, it is guilty of a willful and malicious conversion of the stock.</p> <p>4. Same—what is a proper method of proving value of stock. Where the stock converted by a corporation had no market value at the time of the conversion, it is proper, in proving its actual value, to show the value of the assets of the corporation, the amount of its liabilities and its earning power for a number of years prior to the conversion.</p> <p>5. Same—zvhen tender of stock is of no avail. Where the conversion of stock by a corporation is willful and malicious and part of a scheme for obtaining the stock of a stockholder whom the corporation has involved in litigation, a tender of the stock to the assignee of the stockholder after the litigation has terminated against the corporation is of no avail either as a defense to a suit in trover or in mitigation of damages.</p>

<p>1. Appeals and errors—evidence in the record, if it is all preserved, may be relied upon to sustain the decree. On appeal to the Appellate Court in a chancery case the appellee is entitled to have the decree sustained by the evidence if it is all preserved in the record, whether the facts so shown are the same as those found in the decree or not.</p> <p>2. Mechanics’ liens—one furnishing material to a public contractor has a lien on the bonds. One who furnishes material to a public contractor which is used by him in the improvement but is not paid for is entitled to a mechanic’s lien on the bonds issued to the contractor for the portion of the work completed by him before he abandoned the contract.</p>

<p>1. Landeobd and tenant—right of tenant to recoup damages in action for rent. In an action for rent under a lease, damages sustained by the tenant by reason of a breach of the contract of leasing on the part of the landlord may be set up by the tenant by way of recoupment and deducted from the sum he owes as rent.</p> <p>2. .Same—rule where landlord permits business hurtful to tenant to be carried on in building. The lessor of a hotel, who, without authority under the lease and against the protest of the lessee, permits a business to be carried on in a portion of the building not covered by the lease which he well knows is hurtful to the business of the hotel is liable to the lessee for damages caused thereby, and the lessee may recover the same by recoupment when sued for rent.</p> <p>3. Same—right of tenant to recoup for partial eviction. In an action for rent under a lease the tenant may recoup his damages for a partial eviction of the premises; but he cannot successfully claim an eviction as to the whole of the premises so long as he remains in possession thereof.</p> <p>4. Same—a tenant may recoup damages for the landlord’s tort. Damages sustained by a tenant from a tort of the landlord may be recovered in an independent action or by way of recoupment in an action for rent, but in the latter case the damages are limited to the extent of the rent claimed, and the tenant is not entitled to judgment for any-excess.</p> <p>5. Same—limit of rule that claim for unliquidated damages can not be set off in action for rent. The rule that a claim for unliquidated damages cannot be set off in an action for rent under a lease applies only when the damages sought to be recouped grow out of a matter having no relation to the contract sued -on.</p> <p>6. Same—what is not, as a matter of 'law, a waiver of right to recoup damages. The mere fact that a tenant enters into possession of premises and continues to occupy the same for his entire ten-year term except the last two months, paying all previous rents and charges, does not, as a matter of law, constitute a waiver of the tenant's right to recoup his damages for a breach of the terms of the lease when sued by the landlord for the last two months' rent; but the question of waiver is one of fact under the evidence.</p> <p>7. Courts—right of parties to abandon fourth-class action and make it first class. Where an action is begun in the municipal court to recover possession of a building and for $2500 rent, the parties may abandon the fourth-class action by the surrender of the premises by the defendant and the taking possession thereof by the plaintiff and leave the action as one of the first class for $2500 rent, in which the defendant is entitled to recoup his damages for breach of the terms of the lease.</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. Hugo Pam, Judge, presiding.

<p>1. Limitations—when possession of co-tenant is adverse. Possession by one tenant in common is adverse to the others where it is of such a character as to give notice to the others that their title is disputed and that the one in possession claims the whole title.</p> <p>2. .Same—what constitutes notice of adverse claim. Where a testator devises a tract of land to his grandchild at the death or re-marriage of the widow, and the grandchild and the widow live together on the land until the re-marriage of the widow, notice by the grandchild to the widow that she has no longer any right to remain on the place, in response to which the widow moves away, leaving the grandchild in possession, is notice of the grandchild’s adverse claim of title.</p> <p>3. Same—a will purporting to devise whole interest in tract of land is color of title. A will purporting to devise the whole interest in a tract of land, and not merely a one-half interest, is color of title to the whole interest, and if there is no bad faith and the devisee takes possession and holds the same adversely under notice of such claim of title for more than seven consecutive years, receiving all profits and paying all taxes on the land, she will acquire title by limitation to the whole interest in the land.</p>

<p>1. Estoppel—wh.at must• appear before an estoppel in pais can be invoked. Before an estoppel in pais can be invoked in aid of a litigant it must appear that-the person against whom it is invoked has by his words or conduct caused the litigant to believe in the existence of a certain state of things and induced him to act upon that belief.</p> <p>2. Same—when corporation is not estopped to attack validity of law. A gas corporation which files a petition in court alleging that the rates for gas fixed by an ordinance are unjust and unreasonable and praying the court to review the same, does not by such action estop itself to attack the validity of the law under which the ordinance was passed.</p> <p>3. Actions and defenses—when the plaintiff may maintain suit' though another suit is pending. One who has for several years been obliged to pay a gas company for gas at a rate -in excess of that fixed by a city ordinance may maintain a suit against the company to recover the excess paid by him, notwithstanding the city, in another suit, is seeking to enforce the ordinance and protect the right of consumers to a refund.</p> <p>4. Constitutional law—all presumptions are in favor of the validity of an act. The General Assembly is without restriction or limit in the exercise of legislative power except as bounds are set or restrictions imposed by the constitution, and all presumptions are indulged and doubts resolved in favor of the validity of a statute.</p> <p>5. Same—courts cannot evade clear duty to declare an act invalid. Where it is clear that a limitation or restriction imposed by the constitution has been violated or disregarded by the General Assembly it is the duty of the courts to declare the act unconstitutional, and such duty cannot be evaded or neglected, no matter how desirable or beneficial the attempted legislation may be.</p> <p>6. Same—rule where act includes two subjects and both are expressed in the title. Where an act includes two subjects and both are expressed in its title it is not possible for the courts to judge between the two subjects and hold the act valid as to one and void as to the other, and in such case the entire act must be held invalid as in contravention of section 13 of article 4 of the constitution.</p> <p>7. Same—the General Assembly must determine how broad the title of an act shall be, The General Assembly must determine how broad or how specific the title of an act shall be, and if the title is general any number of provisions may be contained in the act, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject and may be considered in furtherance thereof.</p> <p>8. Same—meaning of the word, "germane.” The word “germane” is literally applicable only to persons united by a common tie of blood or marriage, but when applied to a legislative provision and-used in a metaphorical sense the common tie is found in the tendency of the provision to promote the object and purpose of the act to which it belongs.</p> <p>9. Same—rule where title to an act is restricted. If the title of an act is restricted by the General Assembly to a particular branch of some general subject the courts cannot enlarge the scope of the title, and only such provisions which tend to promote the object of the act as so restricted can be said to be within the title.</p> <p>10. Same—the act of 1905, authorising city of .Chicago to fix rates for gas, is unconstitutional. The act of 1905, (Laws of 1905, p. no,) “to confer upon the city of Chicago the power and authority to sell surplus electricity and to fix the rates and charges for the supply of gas and electricity for power, heating, and lighting furnished by any individual, company or corporation to said city of Chicago and the inhabitants thereof,” expresses two distinct subjects in such title, and as the act contains provisions relating to both subjects the entire act is void.</p>

<p>Information to disbar.</p>