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carry the proposition, and, as those words have not been changed since the adoption of the original act, they must now be given their original meaning, and it be held that a majority vote upon the proposition is sufficient to carry said proposition, although such vote does not amount to a majority of the votes cast at the election at which the proposition was submitted. Subsequent to the passage of the act of 1872, section 1 was amended so that the proposition for city organization under general law was required to be submitted at the "next ensuing municipal election." Clearly, then, the words "such election" referred to a majority of the votes cast at such municipal election, and during the period that amendment was in force the proposition for city organization under general law required a majority of all the votes cast at the election before such organization could be effected. could be effected. Afterwards, section 1 of the statute was amended so that it read as it now appears upon the statute books, and authorized the mayor and city council to submit the proposition for city organization under general law at a general or special election. When the last amendment was made to section 1 of said act, we think such change was wrought, by implication, in section 3 of the act as brought that section into harmony with section 1 amended, and that in construing section 3 at the present time we must consider section 1 as we now find it upon the statute books, and not as it was originally passed.

It is also insisted that more votes ought not to be required at a general than at a special election to adopt city organization under general law. Such result does not necessarily follow, as in many instances the opposite might be the result; that is, a special election might excite more interest and bring out a larger vote upon the proposition for city organization under general law than though such proposition was submitted at a general election. The question, however, whether the proposition should be submitted at a special or general election and the number of votes required to adopt the proposition for city orgnization is legislative, and one with which the courts cannot deal; the only province of the courts being to construe the statute as passed. To us it is clear that the Legislature provided the proposition for city organization under general law might be submitted to the voters at a special or general election, and further provided that at any such election, whether such election be general or special, the proposition must receive a majority of the votes cast at any such election before such proposition should be held to be carried, and we think, had it been the legislative intention that in case the proposition was submitted at a general election a majority of the votes

cast upon the proposition should be sufficient to adopt city organization under general law, they would have so said in express terms.

In People v. Wiant, 48 Ill. 263, an election upon the question of the removal of a county seat was held at the same time that there was elected a circuit judge, and it was held that it was not the votes which were cast upon the proposition of removal that was to govern, but that it must appear that a majority of all the votes cast at the election were in favor of removal. The case of Chestnutwood v. Hood, 68 Ill. 132, involved the validity of bonds voted in aid of the construction of a railroad. An act of the Legislature authorizing the voting of railroad aid provided the election might be held at a special or general election, but that no bonds should be issued unless a majority of the legal voters of the municipality seeking to issue the same should vote for the issue thereof. At the general election at which the proposition was submitted 3,210 votes were cast; 1,278 were cast for, and 1,275 against, the proposition to issue bonds. A bill was filed to enjoin the issue of the bonds, and it was contended a majority of the votes upon the proposition was all that was necessary to authorize the issue of the bonds, regardless of the total vote cast at the election. It was, however, held, in accordance with the decision in People v. Wiant, supra, that the bonds could not be issued unless a majority of all the votes cast at the election were in favor of issuing said bonds. The authorities are not in entire harmony upon the question, but we think the rule in this state is settled by the foregoing cases, and other kindred cases, that when, a proposition is submitted to the voters at a general election it must receive a majority of all the votes cast at the election before it can be held to be carried, unless the statute providing for its submission provides that a majority of the votes cast upon the particular proposition submitted shall be sufficient to adopt it. People v. Brown, 11 Ill. 478; People v. Garner, 47 Ill. 246; People v. Wiant, supra; Chestnutwood v. Hood, supra.

The contention that the election should have been held under the Australian ballot law we think without force. The law under which an election for city organization under general law is held is special in its nature, and was not repealed by the ballot law of 1891. People v. Marquiss, 192 Ill. 377, 61 N. E. 352.

The judgment of the circuit court will be reversed, and the cause remanded to that court, with directions to overrule the demurrer to said replication, and for further proceedings in accordance with the views herein expressed.

Reversed and remanded, with directions,

(222 III. 162.)

O'LAUGHLIN et al. v. COVELL. (Supreme Court of Illinois. June 14, 1906.) 1. WRIT OF ERROR-REVERSAL.

A decree granting a petition for the registration of title to certain land will not be reversed because certain defendants, who were at most only nominal parties were not properly served by publication.

2. SAME-RIGHT TO ALLEGE ERROR-ERRORS AFFECTING ONLY CO-PARTIES.

Failure of plaintiff, in a proceeding to register title, to properly serve certain defendants who defaulted by publication, could not be urged by other defendants on appeal as a ground for reversing a decree in favor of plaintiff.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3584-3590.] 3. SAME-ADMISSION OF EVIDENCE-WAIVER OF OBJECTIONS.

Where, in a proceeding to register title, defendants made no objection to the competency of the applicant to testify generally as a witness in his own behalf, nor was any objection taken to his testimony by exceptions to the examiner's report, defendants could not object to the competency of such witness on appeal. 4. ADVERSE POSSESSION-INTERESTS ACQUIRED BY DESCENT.

In a proceeding to register title to certain land, it appeared that whatever interest E. derived in the premises by inheritance through her mother vested in her in 1866. E. and her husband, in 1865, had quitclaimed their interest in the property to petitioner, who remained in possession for more than 30 years, subsequent to 1866, and prior to E.'s death, during which time he farmed and pastured the land, paid the taxes thereon, and claimed to be the absolute owner. Held, that petitioner had acquired title. by adverse possession as against any interest which might otherwise have descended to E.'s husband and heirs.

5. SAME.

Where, in a proceeding to register title, petitioner, his ancestors and grantors, had been in open, exclusive, and notorious possession of the premises, claiming to own the same, since 1847, petitioner had acquired an absolute title to the land in fee as against adverse claimants, none of whom had labored under any disability for a period of more than 30 years prior to the filing of the application.

Error to Circuit Court, Cook County; E. F. Dunne, Judge.

Proceeding for the registration of title by Marion F. Covell, in which James O'Laughlin and others filed objections. From a judgment granting the relief prayed, O'Laughlin and others bring error. Affirmed.

This is a writ of error sued out of this court to review a decree of the circuit court of Cook county, entered in a proceeding under the land registration act, declaring the fee simple title to the northeast quarter of section 17, township 39 north, range 12 east of the third principal meridian, Cook county, Ill., to be in Marion F. Covell, the defendant in error, and directing that his title to said premises be registered under the terms of said act.

It appears from the record that Thomas R. Covell, the father of the defendant in error, at the time of his death, in the year 1847, was in possession of said premises claiming to be the owner thereof; that he

left, him surviving, Elizabeth Covell, his widow, and Mary J. Eastman, Marion F. Covell (the defendant in error), Marias C. Covell, Maria S. Ingersoll, Melissa Buckley, Marcellus Covell, and Minerva C. Payne, his children and only heirs. Marcellus died without having married, in 1863, and the widow in 1866. The defendant in error took possession of said premises in 1852, at which time 100 acres thereof was prairie, and 60 acres was covered by timber, and has remained in possession thereof until February 2, 1903, the date upon which the application for registration of the title thereof was filed by him. On March 14, 1865, the defendant in error obtained a quitclaim deed from Mary J. Eastman, her husband joining therein, for her interest in said premises; on August 10, 1868, a quitclaim deed from Minerva C. Payne, her husband joining therein, for her interest in said premises; on February 20, 1892, a quitclaim deed from Melissa Buckley, her husband joining therein, for her interest in said premises; on May 24, 1897, a quitclaim deed from Marias C. Covell, his wife joining therein, for his interest in said premises; and on September 30, 1903, a quitclaim deed from Maria S. Ingersoll, her husband joining therein, for her interest in said promises. Thomas R. Covell, on January 31, 1846, conveyed to Samuel H. Giles 40 acres in the east half of said premises, described as follows: Commencing at the southeast corner of said northeast quarter, running west 60 rods, north 80 rods, east 40 rods, north 80 rods, east 20 rods, south 160 rods to the place of beginning. Samuel II. Giles died in 1846 or 1847, leaving his widow, Harriet, and Phoebe Killham, Perry Giles, Winfield S. Giles, Miriam Giles, Anson Giles, and Emeline Green, his children and only heirs. Miriam died childless after her father's death, and the widow. Harriet, subsequently married James Smith, by whom she had two children, George E. Smith and Lona Boeger. In the application Maria S. Ingersoll and Minerva C. Payne, and their husbands, were named as having an interest in said premises, and quitclaim deeds from them to the defendant in error, heretofore referred to, were introduced in evidence, and, although they were notified, neither appeared nor made any defense to the registration of said title. Phoebe Killham, Perry Giles, Winfield S. Giles, Anson Giles, and Emeline Green were all duly notified of the application, and each appeared and filed an answer, and they are the only persons assigning error upon this record. James O'Laughlin, Andrew C. O'Laughlin, August Havemann, and Daniel F. Ring, who were in possession of portions of the premises as tenants of the defendant in error, were named in the application, and they and the wife of the defendant in error appeared and consented that the defendant in error's title might be registered. It was also stated in the application that the heirs. of Lyman B. Bennett and Ephraim Collar,

whose names and addresses were unknown, | "The fourth point relied upon is that the

also Andrew J. Brown, trustee, and Job D. Hoes, whose addresses were unknown to the applicant, had or claimed to have some interest in the premises, and they were notified of the pendency of the proceeding by publication, under the designation "To all whom it may concern," and not appearing, they were each called and defaulted. The case was referred to an examiner of titles, who, after hearing proofs, oral and documentary, reported to the court that the applicant was the owner in fee simple of said premises, and recommended that his title thereto be registered, which report was approved by the court and a decree entered in accordance with the terms thereof.

William C. Wilson and J. Kent Greene, for plaintiffs in error. F. J. Griffen and Enoch J. Price, for defendant in error.

HAND, J. (after stating the facts). It is first contended that the circuit court was without jurisdiction to hear and determine the application, on the ground that the service by publication upon Maria S. Ingersoll, Minerva C. Payne, and their husbands, and the unknown heirs of Lyman B. Bennett, and Ephraim Collar and Andrew J. Brown, trustee, and Job D. Hoes, was not in compliance with the statute. The record shows that Maria S. Ingersoll and Minerva C. Payne and their husbands had released to the defendant in error all their interest in the premises prior to the entry of the decree, and that they had no interest in the premises and were not necessary parties to the proceeding at the time the decree was entered. The fact, therefore, that they were not properly served with process ought not to work a reversal of the case; and the record further fails to show that Lyman B. Bennett and Ephraim Collar, or their heirs, if any, and Andrew J. Brown, trustee, and Job D. Hoes, have, or ever had, any interest in said premises, and that they, at most, were nominal defendants, and the application as to them might well have been dismissed without impairing the right of the defendant in error to have his title registered. Conwell v. Watkins, 71 Ill. 488. If, however, it were conIf, however, it were conceded said parties were necessary parties to the proceeding, and that the service upon them was insufficient, we are of the opinion the plaintiffs in error can not raise that question at this time as a ground of reversal in this court. While this proceeding is a statutory one, it is governed by the method of procedure adopted in chancery cases, so far as the rules of chancery practice are applicable thereto (Gage v. Consumers' Electric Light Co., 194 Ill. 30, 64 N. E. 653), and, as the parties defaulted are not here complaining of the decree entered against them, the plaintiffs in error cannot complain of the entry of such decree on their behalf. Culver v. Cougle, 165 Ill. 417, on page 419, 46 N. E. 242, on page 243, the court said:

In

court erred in allowing certain defendants to the bill to be defaulted who were brought in by publication of notice, for the reason that no sufficient affidavit was filed to authorize service by publication. The appearance of Nelson Culver, the mortgagor, and Morton Culver, plaintiff in error, was entered, and it is nowhere claimed that they were not properly in court. The defendants to the bill who were defaulted are making no complaint in regard to the sufficiency of the default entered against them. The error, if one was committed, related to them, and to them alone. It did plaintiffs in error no harm, and they have no just ground of complaint."

It is next objected that the examiner of titles erred in permitting applicant to testify, generally, as a witness in his own behalf, as it is said he was an incompetent witness, as against the plaintiffs in error, as to facts which occurred during the lifetime of Samuel H. Giles, their father, and during their minority. There was no objection made to the competency of the applicant as a witness at the time he testified before the examiner of titles, nor was there at that time any distinction made as to the competency of his testimony as to facts occurring prior or subsequent to the death of Samuel H. Giles or during the minority of the plaintiffs in error, but he was permitted, without objection on the part of the plaintiffs in error, to testify generally with reference to all facts within his knowledge, material to a determination of the matter then on hearing before the examiner of titles. The applicant was clearly a competent witness as to all facts within his knowledge subsequent to the time when the plaintiffs in error attained their majority, and if they desired to limit his testimony they should have done so by calling the attention of the examiner of titles to the fact that he was incompetent to to testify to any fact which had occurred prior to their attaining their majority; at least they should have raised such objection by proper objection to the examiner's report before the examiner of titles and by exceptions before the chancellor. This they failed to do, and we think thereby waived their right to now insist upon such objection. In Glos v. Hoban, 212 III. 222, on page 223, 72 N. E. 1, it was said: "The complaint that the examiner of titles received in evidence certain abstracts of title without the requisite proof that the original deeds purporting to be shown by the abstract had been lost and the records thereof had been destroyed by fire, or that it was not in the power of the defendant in error to produce the original deeds, or that the abstracts of title had been made in the ordinary course of business, etc.. as required by sections 23 and 24 of chapter 116 (3 Starr & C. Ann. St. 1896, p. 3360), cannot be investigated in this court for the reason this ground of complaint was not

specifically made in the objections filed to the report of the examiner of titles, and in the exceptions to such report filed in the circuit court. The same rules apply with reference to the mode of preserving for review the rulings as to objections and exceptions presented to the report of the examiner as are applicable to the review of objections and exceptions to the reports of masters in chancery. Gage v. Consumers' Elec. Light Co., 194 Ill. 30, 64 N. E. 653."

It is further contended that the husband and heirs of Mary J. Eastman were not made parties to the application, and for that reason, it is said, it does not appear that the defendant in error has title to said premises as against the husband and heirs of Mary J. Eastman, deceased, and for that reason it is urged the defendant in error is not entitled to have his title registered. Glos v. Kingman & Co., 207 Ill. 26, 69 N. E. 632. Mary J. Eastman and husband in 1865 quitclaimed their interest in the premises to defendant in error. Prior to that time Marcellus Covell had died, and his mother, Elizabeth Covell, who was then living, inherited two shares of his interest in said premises. Elizabeth Covell died Covell died in 1866, which was subsequent to the date of the quitclaim deed from Mary J. Eastman to the applicant, and upon the death of Elizabeth Covell said Mary J. Eastman inherited a part of the premises from her mother which her mother had inherited from Marcellus, and upon the death of Mary J. Eastman, which occurred some three or four years prior to the filing of the application, the interest which she inherited from her mother, unless barred by the statute of limitations, descended to her heirs, subject to the rights of her husband therein. The applicant claimed title in fee to said premises by virtue of descent from his father, Thomas C. Covell, and his brother Marcellus, and by virtue of deeds from his brother and sisters. He also claimed title by virtue of the 20 years' statute of limitations. The evidence is undisputed that he had been in possession of the premises upwards of 50 years at the time he filed his application for registration, and that he procured a quitclaim deed from Mary J. Eastman and husband for her interest in said premises in 1865. Whatever interest Mary J. Eastman derived in said premises by inheritance through her mother vested in her in 1866. The applicant, subsequent to the vesting of such interest, remained in possession of said premises for more than 30 years prior to her death, during which time he farmed and pastured the land and paid the taxes thereon, claiming to be the absolute owner thereof. Clearly, at the time of the death of Mary J. Eastman her interest was barred in said premises, and at the time the applicant filed his application for registration the husband and heirs of Mary J. Eastman were barred by the 20 years' statute of limitations,

which had run during the lifetime of Mary J. Eastman, from asserting any claim to the land as against the defendant in error. The only persons making any claim to the land the title of which is sought to be registered, hostile to the defendant in error, are Phoebe Killham, Perry Giles, Winfield S. Giles, Anson Giles, Emeline Green, George E. Smith, and Lona Boeger. Their claim is based upon a deed to Samuel H. Giles made by Thomas R. Covell January 31, 1846. None of said parties have ever been in possession of the premises in question or any part thereof, while the applicant and his ancestors and grantors have been in the open, exclusive, and notorious possession of said premises, claiming to own the same, since 1847. This long possession clearly had, at the time the decree was entered, ripened into an absolute title in fee simple in the defendant in error, as none of the adverse claimants appear to have labored under any disability for a period of more than 30 years prior to the date of the filing of the application.

We think the court properly decreed that the applicant was the owner of said premises in fee simple, and entitled to have the title thereto registered in him under the terms of said registration act.

The decree of the circuit court will be affirmed.

Decree affirmed.

(222 Ill. 189.)

STARNE v. PEOPLE.

(Supreme Court of Illinois. June 14, 1906.) 1. CONSTITUTIONAL LAW CONSTRUCTION OF CONSTITUTIONAL PROVISIONS - MATTER ExTRINSIC TO INSTRUMENT.

On a question as to the construction of a constitutional provision reference to the proceedings of the constitutional convention are not to be resorted to for the purpose of construing away the express language of the Constitution or of construing what may be doubtful.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 11, 16.] 2. SAME CLASS LEGISLATION MINES AND MINERALS--OPERATION OF MINES.

--

Const. art. 4, § 29, declares that the general assembly may pass such laws as necessary for the protection of miners by providing for ventilation, the construction of escapement shafts, or such other appliances as may secure safety in coal mines. Hurd's Rev. St. 1903, c. 93, § 37, makes it the duty of the operator of a coal mine to provide a washroom at the top of each mine for the use of miners, so arranged that they may hang their clothes there for the purpose of drying them. Held, that the statute is not within Const. art. 4. § 29, but is unconstitutional as special legislation.

Hand, J., dissenting.

Error to Circuit Court, Sangamon County; James A. Creighton, Judge.

Charles A. Starne was convicted of a violation of Hurd's Rev. St. 1903, c. 93, 37, requiring operators of coal mines to provide washrooms, and he brings error. Reversed.

Lawrence & Folsom, for plaintiff in error. H. J. Hamlin, G. B. Gilespie, and W. E. Shutt, Jr. (Williamson & Torrey, and Shutt & Graham, of counsel), for the People.

SCOTT, C. J. This was a criminal proceeding commenced before a justice of the peace of Sangamon county. The complaint charged the plaintiff in error, the owner and operator of a coal mine in this state, with failing and refusing to provide and maintain a washroom, as he was required to do by section 37, c. 93, Hurd's Rev. St. 1903, which was approved May 14, 1903, and provides: "That every owner or operator of a coal mine in this state shall provide and maintain a washroom at a convenient place at the top of each mine for the use of the miners and other employés of such mine; and such washroom shall be so arranged that such miners and other employés may hang therein their clothes for the purpose of drying the same."

A judgment of conviction was rendered by the justice and an appeal was taken to the circuit court. A motion was there entered to quash the complaint and dismiss the suit, one of the grounds of the motion being that the act in question was in contravention of the Constitution of the state of Illinois. This motion was denied, and, upon trial, plaintiff in error was again convicted, and has sued out of this court a writ of error to review the judgment of conviction. It is insisted that the statute is unconstitutional. It is apparent, upon inspection thereof, that it places upon mine owners or operators a burden not borne by other employers of labor and is special legislation, and for that reason invalid, unless for some reason it does not fall within the operation of the general rule forbidding legislation of that character. Millett v. People, 117 Ill. 294, 7 N. E. 631, 57 Am. Rep. 869; Frorer v. People, 141 Ill. 171, 31 N. E. 395, 16 L. R. A. 492; Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62, 22 L. R. A. 340, 37 Am. St. Rep. 206; Harding v. People, 160 Ill. 459, 43 N. E. 624, 32 L. R. A. 445, 52 Am. St. Rep. 344; Eden v. People, 161 Ill. 296, 43 N. E. 1108, 32 L. R. A: 659, 52 Am. St. Rep. 365; Bailey v. People, 190 Ill. 28, 60 N. E. 98, 54 L. R. A. 838, 83 Am. St. Rep. 116.

It is said, however, that the miner works at a depth which removes him from all climatic changes and conditions on the surface and in a temperature which, throughout a portion of the year, is much higher than that outside the mine; that when his work is over for the day, his skin is covered with grease, smoke, dust, grime, and perspiration; that without an opportunity to bathe and change his attire, he cannot clothe himself comfortably for his journey through cold weather to his home; that these adverse conditions inevitably lead to colds, consumption, pneumonia, and general unhealthfulness; and that the statute in question should be sustained as a valid exercise of police

power, and it is urged, as that power may be exercised to promote the comfort, health, welfare and safety of the public, that this statute is referable to that power as a health regulation, for the reason that it will afford the miner an opportunity to avoid danger to his health, otherwise consequent upon his occupation. It is true, as suggested by counsel, and as stated by this court in Lasher v. People, 183 Ill. 226, 55 N. E. 663, that the Legislature has the power to form classes for the purpose of police regulation if it does not arbitrarily discriminate between persons in the same situation.

The only purpose of this act is to promote the health of miners and other persons employed in coal mines. Many men in this state are employed in the foundries and steel mills who work in a higher temperature than do the miners, surrounded by conditions deleterious to health and inimical to longevity. The convenience provided for by this act is not less desirable to them than to the coal miner. While the power of the Legislature to form classes in reference to which the police power may be exercised is unquestioned, there can be no discrimination among individuals in forming such classes unless there is some difference in their condition which causes them to naturally fall into different groups. Lasher v. People, supra; Harding v. People. supra; Horwich v. Walker-Gordon Laboratory Co., 205 Ill. 497, 68 N. E. 938, 98 Am. St. Rep. 254. It is apparent that a statute of this character, providing that a washhouse should be provided for miners working at a greater depth than 200 feet below the surface, and making no similar provision for miners working at a lesser depth, would be unconstitutional because it would make an arbitrary distinction between individuals surrounded by the same conditions.

We think the act in question, when considered as an exercise of police power, is properly the subject of the same objection. The fact that it proposes to benefit workmen employed in coal mining does not make it valid, in view of the fact that laborers in other employment are surrounded by like conditions and are equally in need of the benefit of this statute. As quoted from Cooley's Constitutional Limitations in Millett v. People, supra, and in Frorer v. People, supra: "Distinctions in these respects should be based upon some reason which renders them important, like the want of capacity in infants and insane persons; but if the Legislature should undertake to provide that persons following some specific lawful trade or employment should not have capacity to make contracts or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bound of legislative power, even if it did not come in con

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