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decision in this case is, must the board of local improvements of a city comply with the provisions of said section 84 as amended, by filing in the court where the assessment was confirmed the certificate provided for therein to be filed, and there be a hearing upOn Said certificate, and the court enter an Order that the improvement, as completed, conforms, in substance, to the improvement Ordinance, as a condition precedent to the right Of the city to issue to the contractor the improvement bonds provided to be issued in payment of a local improvement where the assessment is divided into installments, in cases Where, as here, the contractor has agreed to accept Said improvement bonds in payment of the Work, or may such improvement bonds rightfully be issued to the contractor upon the acceptance of the work by the board Of local improvements and Without the filing of said certificate by said board and the entry of such order by said court? The law is well settled that before a party will be coerced by a Writ of mandamus to perform an act it must clearly appear from the petition that it is his clear legal duty to perform such act, and if a clear legal duty to perform the act Sought to be coerced does not rest upon the party sought to be coerced, the court Will not grant the Writ. It was therefore essential the petitioner should show by his petition that it was the legal duty of the appellees to iSSue Said improvement bonds at the time he filed his petition, and if any step or Steps in the court where said assessment was confirmed was necessary to be taken as a condition precedent to the right of Said appellees to issue said bonds which had not been taken at the time the petition for mandamus Was filed, then the appellant was not entitled to the relief prayed for and the petition was properly dismissed. Section 83 of the local improvement act, standing alone, undoubtedly authorizes the board of local improvements to determine whether a local improvement has been constructed substantially in accordance with the provisions of the improvement Ordinance, and if Such board decides it has been SO COnstructed and accepts the improvement, such acceptance is conclusive in the proceeding to make the assessment, and in all proceedings to collect the Same Or the installments thereof, on all persons and property assessed therefor, and that the Work has been performed substantially according to the requirements of the improvement ordinance. This section was in full force prior to the passage of the amendment of 1903 to section 84, and under the law as it then was it would have been the duty of the city, upon the acceptance of the work by the board of local improvements, to issue improvement bonds in payment thereof. By the amendment to section 84 boards of local improvements in cities are required, within 30 days after the completion and acceptance of any Work, in case the assessment is divided into

installments, to file a certificate in the court Where the assessment was confirmed, Stating, among other things, whether the improvement, as completed, conforms substantially to the requirements of the original ordinance for the construction thereof, and to make an application to said court to consider and determine Whether Or not the factS Stated in said certificate are true, and thereupon it becomes the duty of the court to fix a time and place for the hearing upon said application. Notice is required to be given of Such hearing, objections may be filed, and the certificate of the board of local improvements is made prima facie evidence of the truth of the facts stated therein. If, On the hearing, the court finds that the improvement is constructed in Substantial accordance With the Ordinance, the acceptance thereof by the board of local improvements is approved. If it finds the improvement has not been conStructed in Substantial accordance With the Ordinance, it is then made the duty Of the board of local improvements to procure the completion of the improvement in Substantial accordance With the improvement Ordinance, and the board may from time to time file additional and Supplemental applications or petitions in respect thereto, until the court shall be satisfied that the improvement is constructed in substantial accordance With the Ordinance; and if, before the entry of such final order, there shall have been issued to the contractor, in the progress of the Work, any improvement bonds to apply on the contract price thereof, said contractor, or the then OWner or holder thereof, Shall be entitled to receive in lieu thereof new bonds of equal amount, dated and issued after the entry of said order. By the passage of this amendment we think it clear the powers conferred upon boards of local improvements by section 83, whereby such boards were given power to finally determine whether a local improvement had been constructed substantially in accordance with the improvement Ordinance and to accept the improvement, and thereby bind the city and the property owner, was taken away and conferred upon the court Wherein the assessment Was confirmed, and that the city or property owner is not concluded upon that question by the action of the board of local improvements, and is only concluded by the action of the court where the assessment was confirmed, which action, when had in that court, becomes res judicata of the question in all Subsequent proceedings to collect the assessment. People v. Cohen, 219 Ill. 200, 76 N. E. 388. If the action of the board of local improvements in accepting an improvement is not conclusive on the city and property owner that an improvement has been completed in substantial compliance with the terms of the improvement ordinance, but they have the right to Submit that question to the court in which the assessment was confirmed, it would seem apparent the city ought not to be required to issue improvement bonds in payment of an improvement until it had been judicially determined, in the manner pointed out in the statute, that the improvement constructed was substantially the improvement provided for in the ordinance, as otherwise the city might be required to issue improvement bonds to pay for an improvement not provided for by the improvement ordinance, and One Which the Court might eventually refuse to permit the board of local improvements to accept and which it would order said board of local improvements to have completed in accordance With the Ordinance. We think the amendment to section 84 was passed mainly to prevent a local improvement not constructed Substantially in accordance with the improvement ordinance being foisted upon property owners by the action of the board of local improvements, and was intended to afford the property owner, as well as the city, a speedy and summary hearing on that question before the tribunal Wherein the assessment was confirmed, before the property owner should be required to pay his assessment or the city to issue improvement bonds in payment thereof. In Gage V. People, 219 Ill. 634, 76 N. E. 834, it Was held a Special assessment is not delinquent until after a certificate of the cost Of the improvement has been filed in the court Where the assessment Was confirmed, by the board of local improvements, as required by section 84 of the local improvement act, and an application for judgment of Sale made before such certificate of cost is filed cannot be maintained. In that case it was said the provision of section 84 requiring the cost of the improvement to be certified in Writing to the court in which Said assessment was confirmed was mandatory, and we see no reason why the holding should not be the same with reference to the provision of that section which requires the certificate to State whether or not the improvement conforms substantially to the requirements of the original ordinance, and a hearing had thereon, before the improvement bonds should be issued to pay for the improvement. We are therefore of the opinion the city was not required, at the time the petition for mandamus was filed, by reaSO11 Of the failure Of the board Of iOCăl improvements to comply with said section 84, as amended, to iSSue Said bonds to the appellant. It is urged, however, that section 84 of the local improvement act, as amended in 1903, is unconstitutional and Void, and that section 83 is still in force in all its terms, and that the appellant Was not bound to ShOW in his petition a Cómpliance With the provisions of said section 84, as amended, as a condition precedent to the legal duty of Said city to issue to him said improve

ment bonds. This case comes here through the Appellate Court. The Appellate Court did not have the power to determine the question of the constitutionality of said sec

tion as amended, and by coming to this

court through that court and by assigning errors in that court which it did have jurisdiction to hear and determine, the appellant waived his right to raise in this court the constitutionality of said section 84, as amended. The question of the constitutionality of said section, as amended, is not therefore here presented for decision. Indiana Millers' Mutual Fire InS. CO. W. People, 170 Ill. 474, 49 N. E. 364; Robson v. Doyle, 191 Ill. 566, 61 N. E. 435.

Finding no reversible error in this record, the judgment of the Appellate Court Will be affirmed.

Judgment affirmed.

(222 Ill. 88) DANLEY et al. V. IIIBBARD.

(Supreme Court of Illinois. June 14, 1906.)

1. JUDGMENT—MOTION IN ARREST-DEFECTS IN PLEADING. On a motion in arrest of judgment for insufficiency of a declaration, every intendment is indulged in favor of the declaration, and if it contains terms sufficiently general to comprehend any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment in the declaration is cured by the verdict. [Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 468–480.]

2. INTOXICATING LIQUORS–SALE—INJURY TO THIRD PERSON-RIGHT TO RECOVER FROM SELLER. Hurd's Rev. St. 1899, c. 43, § 9, gives a right of action to every person injured in person, property, or means of support in consequence of intoxication, habitual or otherwise, of any person. Hurd's Rev. St. 1899, c. 107, § 1, declares that every poor person unable to earn a livelihood shall be supported by the father, grandfather, mother, grandmother, children, etc., if they, or either of them, be of sufficient ability, provided that, when any persons become paupers from intemperance, they shall not be entitled to support from any relation, except parent or child. A son who was unable to support himself because of his intoxication was supported by his mother. Held that, without regard to whether the son had an enforceable right of action against the mother for support, her obligation to support him was a legal one, and money expended for his support was not a gratuity, but a payment in discharge of her legal obligation, for which she was entitled to recover from the dramshop keeper who sold the son the liquor. 3. JUDGMENT—MOTION IN ARREST-GROUNDS. In considering a motion in arrest of judgment, the court does not look into the evidence. [Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, $495.]

4. INTOXICATING LIQUORS–SALE—INJURY TO THIRD PERSON – SUPPORT OF INTOXICATED SON.—ABILITY TO SUPPORT. In an action under Hurd's Rev. St. 1899, c. 43, § 9, against a dramshop keeper for damages sustained by plaintiff through being compelled to support her son, who by intoxication was rendered incapable of supporting himself, an allegation that plaintiff did furnish support was sufficient after verdict for plaintiff, as an allegation that she was able to furnish such Support. 5. SAME—EVIDENCE. In an action under Hurd's Rev. St. 1899, c. 43, § 9, for damages sustained by plaintiff for being compelled to support a son who was incapable through drunkenness to support himSelf, evidence that the son was a habitual drunkard during the lifetime of plaintiff's husband held immaterial. 6. TRIAL–INSTRUCTIONS—ABSTRACT INSTRUCTIONS. In an action under Hurd's Rev. St. 1899. c. 43, § 9, for damages to plaintiff through being compelled to support a son, who was incapable because of drunkenness of supporting himself, an instruction consisting merely of a copy of the statute under which an action was brought was not objectionable as abstract and misleading. 7. INTOXICATING LIQUORS - CIVIL DAMAGE LAW-RESPONSIBILITY OF SELLER. In an acion under Hurd's Rev. St. 1899, c. 43, § 9, for damages sustained by plaintiff through being compelled to support a son, who, because of drunkenness, was incapable of supporting himself, an instruction, predicating defendant’s liability upon their having materially contributed or assisted in producing such intoxication, was not objectionable as permitting a Verdict against defendant for having assisted in any degree, however slight, in producing the intoxication. 8. SAME—FAULT OF PLAINTIFF. In an action under Hurd's Rev. St. 1899, c. 43, § 9, for damages sustained by plaintiff from being compelled to support a son, who, because of drunkenness, was incapable of supporting himself, evidence that, on two or three occasions a long time before the action was commenced, plaintiff gave her son 10 cents to get some beer and bring it to the house, which she testified was for the purpose of keeping him out of the saloons, was insufficient to require the giving of an instruction that plaintiff could not recover if she materially contributed to the son’s condition. 9. SAME—DAMAGES. Where, in an action under Hurd's Rev. St. 1899, c. 43, § 9, for injuries sustained by plaintiff through being compelled to support a son, Who. because of drunkenness, was unable to support himself, there was no claim for damages for care of the son, and no evidelice relative to such a claim, it was not necessary to caution the jury against allowing damages for care.

Appeal from Appellate Court, Third District.

Action by Mittie Hibbard against Henry Danley and OtherS. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendants appeal. Affirmed.

Plantz & Lamet, for appellants. Charles

J. Scofield, for appellee.

CARTWRIGHT, J. The Appellate Court for the Third District affirmed a judgment for $1,000 and costs recovered by appellee, against appellants, in the circuit court of Hancock county, in a suit for damages under section 9 of the dramshop act (Hurd's Rev. St. 1899, c. 43), caused by the selling and giving of intoxicating liquors to appellee's adult son, Robert W. Hibbard, resulting in his habitual intoxication and pauperism and imposing upon the appellee the statutory duty

of supporting him, in the performance of which duty She expended her own means and property. The trial court overruled defendants’ motion in arrest of judgment, and error is assigned upon the ruling. There had been a demurrer to the declaration, which was overruled, after which a plea of the general issue was filed, and the motion raised the question whether any count of the declaration Stated a cause of action. It is contended that no cause of action Was stated for two reasons: First, because, the Support furnished by the plaintiff was a gratuity, Or, at most, the performance of a mere moral obligation; and, second, that there was no allegation that the plaintiff was of sufficient ability to support her son. In considering these questions every intendment will be indulged in favor of the declaration, and if it contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment in the declaration has been cured by the Verdict. Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680. The statute gives a right of action to every husband, wife, child, grandchild, employer, or other person sustaining a similar relation, who shall be injured in person or property or means of support in consequence of the intoxication, habitual or otherwise, of any person. It is conceded that the statute is broad enough to include a child and parent, but the argument is that the right of action is only in favor of one who, under the facts and circumstances as they exist at the time, has a legal right in actual enjoyment, which has been injured in consequence of the intoxication. The proposition as stated is that this action Will not lie because the Son, Robert W. Hibbard, had no right to bring a suit to enforce the enjoyment of his right to support by his mother. If the argument were sound it could not be applied to this suit, which was brought by the mother for damages resulting from the performance of her duty. She, and not the son, was the person injured, and the injury resulted from imposing upon her the performance of a duty which otherwise would not have existed. If She performed her statutory duty, the question whether her son would have had a right of action against her if she had failed to perform it is immaterial. Even reversing the situation, a wife living with her husband, or a child, cannot bring a suit against the husband or father for a failure to furnish proper sunport, but it would not be thought that such wife or child could not maintain an action under this Statute. The Second count charged that Robert W. Hibbard whis a poor person, unable to earn a livelihood because of his intoxication caused by defendants; that he was unmarried, and had no child or children; that his father had died; that he was living with his mother, the plaintiff; and that by reason of the statute she was required to support lim as a poor person. Section 1 of the act to revise the law in relation to paupers is as follows: “That every poor person who shall be unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, shall be supported by the father, grandfather, mother, grandmother, children, grandchildren, brothers or Sisters of Such poor person, if they, or either of them, be of sufficient ability: Provided, that when any persons became paupers from intemperance, or other bad conduct, they shall not be entitled to support from any relation, except parent or child.” Hurd's Rev. St. 1899, p. 1259, c. 107. The children are to be first called upon, if there be any children of sufficient ability, and, if there be no children of sufficient ability, the parents are next called on, if they are of Sufficient ability. A duty is imposed by the statute which is not a moral obligation but a legal One, and its performance cannot be said to be a voluntary or gratuitous one. It is urged that the motion ought to have been sustained because the evidence introduced on the trial showed that Robert Hibbard resided with his father and mother up to the time of the death of his father, and Continued to reside with the plaintiff, his mother, thereafter, without any agreement as to how they should live, and it is argued that, in the absence of any express promise on the part of either to pay for services or to recompense the other for support, there could be no recovery by either against the other for Support, and any support furnished by plaintiff was a gratuity. This argument results from a misapprehension of the scope of the motion. In considering a motion in arrest of judgment the court does not look into the evidence. A motion for a new trial is based upon the evidence, instructions, and rulings of the court, which can only be made a part of the record by a bill of exceptions, while a motion in arrest of judgment is based upon the record proner. Wallace & Holmes v. Curtiss, 36 Ill. 156. The facts set forth in the second count relate to a legal obligation. The other objection is that the declaration does not show that the plaintiff was of sufficient ability to support her son. While the second count does not aver, in terms, that she was of sufficient ability to support him, it alleges that she did support him out of her own property, and in so doing paid out and expended the sum of $1,000. Inasmuch as she could not have supported him out of her own property unless she had sufficient ability to do so, the averment includes, by fair and reasonable intendment, the fact that she was of sufficient ability, and it is good after verdict. It is true that the count says plaintiff was of limited means, owning

her own home and having a small sum of money and no other property, which sum of money she used in the support of her Son; but that averment does not show that she was unable to furnish the support. The second count stated a cause of action, and the court did not err in overruling the motion. It is next contended that the court erred in limiting the cross-examination of WitneSSes for the plaintiff and refusing to admit evidence offered on behalf of the defendants. The plaintiff sought, by her declaration, to recover for injuries resulting from being Compelled to support her son after the death of his father, and the testimony in her behalf was confined to that period and to such sup-. port. On cross-examination of her Witnesses, and also in making their defense, the defendants attempted to prove that the Son was an habitual drunkard before his father died, and the court rejected the evidence. In this We think the court Was right. A condition of intoxication, although habitual, is not permanent, and is only continued by a renewed indulgence in intoxicating liquors. Proof that the Son Was an habitual drunkard in the lifetime of his father Would not meet the charge that he was kept in that condition, and in a condition of pauperism, by liquor furnished him after his father's death. It is urged that the evidence would tend to reduce damages, but we cannot see how that could be, since the son would cease to be an habitual drunkard as SOOn as he ceased to drink liquor. The fact sought to be proved was not relevant to the issue. It is next contended that the court erred in giving instructions on behalf of the plaintiff. The third is objected to as being abstract in form, and because as to part of it there was no evidence. It is not error to give an in Struction abstract in form Where it Will not mislead the jury, and this instruction was merely a copy of the section of the statute under which the action Was brought. It is not error to advise a jury as to the law in the language of the statute. Kelly Ville Coal Co. V. Strine, 217 Ill. 516, 75 N. E. 375. While the section includes other injuries than the One sued for, the jury could not have been mislead by the instruction to the injury of the defendants. It is urged that the sixth instruction left the Jury at liberty to 11nd the defendants guilty if they assisted, in any degree whatever, in producing the intoxication of Robert Hibbard. The liability stated was in case they “materially contributed or assisted in producing such intoxication.” We think the jury would understand the instruction as requiring proof that the defendants materially assisted in producing the intoxication, and not that they were guilty if they assisted in some imperceptible degree in producing it. We have already answered the objection to the Seventh instruction, which is that it did not include the condition of Robert Hibbard prior to the death of his father.

Objection is made to the ninth instruction On the ground that it allowed the jury to asSeSS exemplary damages. The plaintiff went to the three saloons of defendants and notified them not to sell intoxicating liquors to her Son. In two cases the notice was given to the defendants themselves, and in another it was given to a brother of the owner, who WaS in charge of the Saloon at the time. The evidence was prima facie sufficient to charge the owner with notice, and it was not overCOme by any evidence that he did not receive it. The defendants gave no heed to the notices, but continued to sell liquor to plaintiff's Son. There was evidence of actual damages alid also evidence which justified the instruction.

Finally, it is urged that the court erred in refusing instructions asked by the defendants. The court did not err in refusing the third instruction, telling the jury that they could not allow exemplary damages. We have already said that there was evidence of actual damage and evidence which would authorize exemplary damages. The fifth instruction stated that plaintiff was not compelled, under the law, to support her son after he became 21 years of age, and, if she did so, she did it voluntarily. As applied to this case, it was not the law. The first and Sixth instructions were designed to advise the jury that plaintiff could not recover if she materially contributed to the condition of habitual intoxication of her son, and they were properly refused for want of evidence to which they could have been applied. There was evidence that on two or three occasions, a long time before the suit was brought, plaintiff gave her son 10 cents to get some beer and bring to the house, which she said was for the purpose of keeping him out of the Saloons. The evidence was too trifling in character to justify a finding by the jury that she materially contributed to his habitual intoxication for a period of several years. It was not necessary to caution the jury against allowing damages for the care of an intoxicated person, since there was no claim or evidence of that kind, and the seventh instruction was properly refused for that reason.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(222 Ill. 95) WILLS v. BABB et al.

(Supreme Court of Illinois. June 14, 1906.)

1. WATERS AND WATER COURSES-FLOOD WATERS-FLOWAGE—PRESCRIPTIVE RIGHT. A prospective right to flood the lands of another can only arise where the lands have been flooded for a period of 20 years or more, and where the flooding was adverse and uninterrupt

ed, and took place with the knowledge and acquiescence of the landowner.

[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, $ 212.] 2. SAME—EVIDENCE.

Prior to 1884, defendants’ land had been

flooded by the surplus waters of a stream but three times in 24 years, and in 1891, when for the first time defendants’ lands were seriously affected by the overflow brought about by a certain cut, the filling up of an old ditch, and the construction of certain levees, they sought to protect their lands by building a levee which they sought to repair when they were enjoined from so doing. There was no evidence that defendants had at any time voluntarily consented that their lands should bear such overflow. Held, that complainant, an adjoining proprietor had acquired no prescriptive easement to have the flood waters of the stream flow over defendants’ lands.

3. SAME—WATER COURSE—DRAINAGE-SUFFICIENCY. In an action to restrain the construction of certain dikes, evidence hold to sustain a finding that certain sloughs on defendants’ land which constituted a natural water course had sufficient capacity to carry off the water intended to be turned into the same by defendants’ works. 4. SAME—RIGHTS OF LANDOWNERS. Where the waters of a stream had been diverted from their natural channel and illegally cast onto defendants’ lands, they were entitled to repel the same by the construction of proper levees in such a manner as to discharge such waters into a slough on their own land as against the rights of adjoining proprietors.

Appeal from Appellate Court, Third DiStrict.

Bill by William R. Wills against Thomas Babb and Others. From a decree in favor of defendants, affirmed by the Appellate Court, plaintiff appeals. Affirmed.

Matthews & Anderson and Jefferson Orr, for appellant. Williams & Williams, Edward Doocy and Paul F. Grote, for appellees.

HAND, J. This was a bill in chancery filed by the appellant, William R. Wills, on October 25, 1903, against the appellees, Thomas Babb and Claib L. Cook and others, in the circuit court of Pike county, for an injunction restraining said Babb and Cook from constructing a new and repairing an old levee along a portion of the east line of Sections 3 and 10, in township 5 S., range 7 W., Pike county, Ill. Answers and replications were filed, and a trial was had in Open court and a decree Was entered dismissing the bill for want of equity, which decree has been affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this COurt.

It appears from the pleadings and proofs that the appellant in the year 1902, purchased, and at the time he filed his bill was the owner of record of, the south half of section 14 and the north 100 acres of the northWest quarter and the north half of the northeast quarter of section 23, in said township, and that Babb acquired the title to the north half and the southeast quarter of section 10, and Cook the title to the South half of Sec

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