« ForrigeFortsett »
carry the proposition, and, as those words cast upon the proposition should be sufficient have not been changed since the adoption of to adopt city organization under general law, the original act, they must now be given they would have so said in express terms. their original meaning, and it be held that In People v. Wiant, 48 Ill. 263, an eleca majority vote upon the proposition is suffi tion upon the question of the removal of a cient to carry said proposition, although such county seat was held at the same time that vote does not amount to a majority of the there was elected a circuit judge, and it was votes cast at the election at which the prop held that it was not the votes which were osition was submitted. Subsequent to the cast upon the proposition of removal that passage of the act of 1872, section 1 was was to govern, but that it must appear that amended so that the proposition for city or a majority of all the votes cast at the elecganization under general law was required tion were in favor of removal. The case to be submitted at the "next ensuing munici of Chestnutwood v. Hood, 68 Ill. 132, inpal election.” Clearly, then, the words "such volved the validity of bonds voted in aid of election” referred to a majority of the votes the construction of a railroad. An act of cast at such municipal election, and during the Legislature authorizing the voting of railthe period that amendment was in force road aid provided the election might be held the proposition for city organization under at a special or general election, but that no general law required a majority of all the bonds should be issued unless a majority of votes cast at the election before such or the legal voters of the municipality seeking ganization could be effected.
effected. Afterwards, to issue the same should vote for the issue section 1 of the statute was amended so that thereof. At the general election at which it read as it now appears upon the statute the proposition was submitted 3,210 votes books, and authorized the mayor and city were cast; 1,278 were cast for, and 1,275 council to submit the proposition for city against, the proposition to issue bonds. A organization under general law at a general bill was filed to enjoin the issue of the bonds, or special election. When the last amend and it was contended a majority of the votes ment was made to section 1 of said act, we
upon the proposition was all that was necesthink such change was wrought, by implica sary to authorize the issue of the bonds, retion, in section 3 of the act as brought that gardless of the total vote cast at the election. section into harmony with section 1 It was, however, held, in accordance with amended, and that in construing section 3 the decision in People v. Wiant, supra, that at the present time we must consider section the bonds could not be issued unless a major1 as we now find it upon the statute books, ity of all the votes cast at the election were and not as it was originally passed.
in favor of issuing said bonds. The authorIt is also insisted that more votes ought ities are not in entire harmony upon the quesnot to be required at a general than at a tion, but we think the rule in this state is special election to adopt city organization settled by the foregoing cases, and other under general law. Such result does not kindred cases, that when a proposition is necessarily follow, as in many instances the submitted to the voters at a general elecopposite might be the result; that is, a tion it must receive a majority of all the special election might excite more interest votes cast at the election before it can be and bring out a larger vote upon the proposi held to be carried, unless the statute protion for city organization under general viding for its submission provides that a law than though such proposition was sub majority of the votes cast upon the parmitted at a general election. The question, ticular proposition submitted shall be suffihowever, whether the proposition should be cient to adopt it. People v. Brown, 11 submitted at a special or general election Ill. 478; People v. Garner, 47 Ill. 246; and the number of votes required to adopt People v. Wiant, supra; Chestnutwood v. the proposition for city orgnization is legis Hood, supra. lative, and one with which the courts cannot The contention that the election should deal; the only province of the courts being have been held under the Australian ballot to construe the statute as passed. To us it law we think without force. The law under is clear that the Legislature provided the which an election for city organization under proposition for city organization under gen general law is held is special in its nature, eral law might be submitted to the voters and was not repealed by the ballot law of at a special or general election, and further 1891. People v. Marquiss, 192 Ill. 377, 61 N. provided that at any such election, whether E. 352. such election be general or special, the prop The judgment of the circuit court will be osition must receive a majority of the votes reversed, and the cause remanded to that cast at any such election before such proposi court, with directions to overrule the detion should be held to be carried, and we murrer to said replication, and for further think, had it been the legislative intention proceedings in accordance with the views that in case the proposition was submitted at herein expressed. a general election a majority of the votes Reversed and remanded, with directions,
(222 III. 162.)
left, bim surviving, Elizabeth Covell, his O'LAUGHLIN et al. v. COVELL. widow, and Mary J. Eastman, Marion F. (Supreme Court of Illinois. June 14, 1906.) Corell (the defendant in error), Marias C. 1. WRIT OF ERROR_REVERSAL.
Covell, Maria S. Ingersoll, Melissa Buckley, A decree granting a petition for the regis Marcellus Covell, and Minerva C. Payne, his tration of title to certain land will not be re children and only heirs. Marcellus died withversed because certain defendants, who were at most only nominal parties were not proper
out having married, in 1863, and the widow ly served by publication.
in 1866. The defendant in error took posses2. SAME-RIGHT TO ALLEGE EBROR-ERRORS sion of said premises in 1852, at which time AFFECTING ONLY CO-PARTIES.
100 acres thereof was prairie, and 60 acres Failure of plaintiff, in a proceeding to
was covered by timber, and has remained in register title, to properly serve certain defendants who defaulted by publication, could not
possession thereof until February 2, 1903, urged by other defendants on appeal as a the date upon which the application for regisground for reversing a decree in favor of plain
tration of the title thereof was filed by him. tiff.
On March 14, 1865, the defendant in error [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 3584-3590.]
olitained a quitclaim deed from Mary J. East3. SamE-ADMISSION OF EVIDENCE-WAIVER
man, her husband joining therein, for her OF OBJECTIONS.
interest in said premises; on August 10, 1868, Where, in a proceeding to register title, a quitclaim deed from Minerva C. Payne, defendants made no objection to the competency
her husband joining therein, for her interest of the applicant to testify generally as a witness in his own behalf, nor was any objection
in said premises ; on February 20, 1892, a taken to his testimony by exceptions to the quitclaim deed from Melissa Buckley, her examiner's report, defendants could not object husband joining therein, for her interest in to the competency of such witness on appeal.
said premises; on May 24, 1897, a quitclaim 4. ADVERSE POSSESSION-INTERESTS ACQUIRED BY DESCENT.
deed from Marias C. Corell, his wife joining In a proceeding to register title to certain therein, for his interest in said premises ; land, it appeared that whatever interest E. de and on September 30, 1903, a quitclaim deed rived in the premises by inheritance through her mother vested in her in 1866. E. and her
from Maria S. Ingersoll, her husband joinhusband, in 1865, had quitclaimed their interest ing therein, for her interest in said promises. in the property to petitioner, who remained in Thomas R. Covell, on January 31, 1846, conpossession for more than 30 years, subsequent
veyed to Samuel H. Giles 40 acres in the to 1866, and prior to E.'s death, during which time he farnied and pastured the land, paid
east half of said premises, described as folthe taxes thereon, and claimed to be the absolute lows: Commencing at the southeast corner owner. Held, that petitioner had acquired title of said northeast quarter, running west 60 by adverse possession as against any interest
rods, north 80 rods, east 40 rods, north 80 which might otherwise have descended to E.'s husband and heirs.
rods, east 20 rods, south 160 rods to the place 5. SAME.
of beginning. Samuel II. Giles died in 1846 Where, in a proceeding to register title, or 1847, leaving his widow, Harriet, and petitioner, his ancestors and grantors, bad been
Phoebe Killham, Perry Giles, Winfield S. in open, exclusive, and notorious possession of the premises, claiming to own the same, since
Giles, Miriam Giles, Anson Giles, and Eme1847, petitioner had acquired an absolute title line Green, his children and only heirs. Mirto the land in fee as against adverse claim iam died childless after her father's death, ants, none of whom bad labored under any
and the widow. Ilarriet, subsequently mardisability for a period of more than 30 years prior to the filing of the application.
ried James Smith, by whom she had two
children, George E. Smith and Lona Boeger. Error to Circuit Court, Cook County; E.
In the application Maria S. Ingersoll and F. Dunne, Judge.
Minerva C. Payne, and their husbands, were Proceeding for the registration of title by
named as having an interest in said premMarion F. Covell, in which James O’Laughlin
ises, and quitclaim deeds from them to the and others filed objections. From a judg
defendant in error, heretofore referred to, ment granting the relief prayed, O'Laugh
were introduced in evidence, and, although lin and others bring error. Affirmed.
they were notified, neither appeared nor This is a writ of error sued out of this made any defense to the registration of said court to review a decree of the circuit court title. Phoebe Killham, Perry Giles, Winfield of Cook county, entered in a proceeding un S. Giles, Anson Giles, and Emeline Green der the land registration act, declaring the were all duly notified of the application, and fee simple title to the northeast quarter of each appeared and filed an answer, and they section 17, township 39 north, range 12 east are the only persons assigning error upon of the third principal meridian, Cook county, this record. James O'Laughlin, Andrew C. Ill., to be in Marion F. Covell, the defend-O'Laughlin, August Havemann, and Daniel F. ant in error, and directing that his title to Ring, who were in possession of portions of said premises be registered under the terms the premises as tenants of the defendant in of said act.
error, were named in the application, and It appears from the record that Thomas they and the wife of the defendant in error R. Covell, the fatüer of the defendant in appeared and consented that the defendant error, at the time of his death, in the year in error's title might be registered. It was 1847, was in possession of said premises also stated in the application that the heirs claiming to be the owner thereof; that he of Lyman B. Bennett and Ephraim Collar,
whose names and addresses were unknown, 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 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. In Culver. v. Cougle, 165 Ill. 417, on page 419, 46 N. E. 242, on page 243, the court said:
"The fourth point relied upon is that the 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 bis 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 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 Ill. 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
which had run during the Ilfetime 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.
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,
(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 er power, and it is urged, as that power may be ror. H. J. Hamlin, G. B. Gilespie, and W. exercised to promote the comfort, health, welE. Shutt, Jr. (Williamson & Torrey, and fare and safety of the public, that this statShutt & Graham, of counsel), for the People. ute is referable to that power as a health
regulation, for the reason that it will afford SCOTT, C. J. This was a criminal pro the miner an opportunity to avoid danger ceeding commenced before a justice of the
to his health, otherwise consequent upon his peace of Sangamon county. The complaint occupation. It is true, as suggested by councharged the plaintiff in error, the owner and sel, and as stated by this court in Lasher operator of a coal mine in this state, with v. People, 183 Ill. 226, 55 N. E. 663, that the failing and refusing to provide and maintain Legislature has the power to form classes a washroom, as he was required to do by sec for the purpose of police regulation if it tion 37, c. 93, Hurd's Rev. St. 1903, which was
does not arbitrarily discriminate between perapproved May 14, 1903, and provides : “That
sons in the same situation. every owner or operator of a coal mine in The only purpose of this act is to prothis state shall provide and maintain a wash
mote the health of miners and other persons room at a convenient place at the top of each employed in coal mines. Many men in this mine for the use of the miners and other state are employed in the foundries and employés of such mine; and such washroom
steel mills who work in a higher temperature shall be so arranged that such miners and than do the miners, surrounded by conditions other employés may hang therein their
deleterious to health and inimical to longevity. clothes for the purpose of drying the same." The convenience provided for by this act is
A judginent of conviction was rendered by not less desirable to them than to the coal the justice and an appeal was taken to the miner. While the power of the Legislature circuit court. A motion was there entered to form classes in reference to which the to quash the complaint and dismiss the suit, police power may be exercised is unquestionone of the grounds of the motion being that ed, there can be no discrimination among the act in question was in contravention of individuals in forming such classes unless the Constitution of the state of Illinois. This there is some difference in their condition motion was denied, and, upon trial, plaintiff which causes them to naturally fall into in error was again convicted, and has sued different groups. Lasher V. People, supra ; out of this court a writ of error to review Harding v. People. supra; Horwich v. Walkthe judgment of conviction. It is insisted er-Gordon Laboratory Co., 205 Ill. 497, 68 that the statute is unconstitutional. It is N. E. 938, 98 Am. St. Rep. 254. It is apapparent, upon inspection thereof, that it parent that a statute of this character, proplaces upon mine owners or operators a viding that a washhouse should be provided burden not borne by other employers of for miners working at a greater depth than labor and is special legislation, and for that 200 feet below the surface, and making no reason invalid, unless for some reason it does similar provision for miners working at a not fall within the operation of the general lesser depth, would be unconstitutional berule forbidding legislation of that character. cause it would make an arbitrary distinction Millett v. People, 117 Ill. 294, 7 N. E. 631, between individuals surrounded by the same 57 Am. Rep. 869; Frorer v. People, 141 Ill. conditions. 171, 31 N. E. 395, 16 L. R. A. 492; Brace We think the act in question, when conville Coal Co. v. People, 147 Ill. 66, 35 sidered as an exercise of police power, is N. E. 62, 22 L. R. A. 340, 37 Am. St. Rep. properly the subject of the same objection. 206; Harding v. People, 160 Ill. 459, 43 N. The fact that it proposes to benefit workmen E. 624, 32 L. R. A. 445, 52 Am. St. Rep. employed in coal mining does not make it 344; Eden v. People, 161 Ill. 296, 43 N. E. valid, in view of the fact that laborers in 1108, 32 L. R. A: 659, 52 Am. St. Rep. 365; other employment are surrounded by like Bailey v. People, 190 Ill. 28, 60 N. E. 98, 54 conditions and are equally in need of the L. R. A. 838, 83 Am. St. Rep. 116.
benefit of this statute. As
As quoted from It is said, however, that the miner works Cooley's Constitutional Limitations in Millett at a depth which removes him from all v. People, supra, and in Frorer v. People, climatic changes and conditions on the sur supra: “Distinctions in these respects should face and in a temperature which, through be based upon some reason which renders out a portion of the year, is much higher them important, like the want of capacity than that outside the mine; that when his in infants and insane persons; but if the Legwork is over for the day, his skin is cover islature should undertake to provide that ed with grease, smoke, dust, grime, and per persons following some specific lawful trade spiration; that without an opportunity to or employment should not have capacity bathe and change his attire, he cannot clothe to make contracts or to receive conveyances, himself comfortably for his journey through or to build such houses as others were allowcold weather to his home; that these adverse ed to erect, or in any other way to make such conditions inevitably lead to colds, consump use of their property as was permissible to tion, pneumonia, and general unhealthful others, it can scarcely be doubted that the ness; and that the statute in question should act would transcend the due bound of legisbe sustained as a valid exercise of police lative power, even if it did not come in con