*

public very largely and very seriously, do not for "granting to any corporation, association, commend themselves to the judicial mind as or individual any special or exclusive privia class of instruments requiring or justifying lege, immunity, or franchise whatever;" and any very liberal construction. Where the in section 1 of article 11, that "no corporation question is whether they conform to the au- shall be created by special laws, * * thority given by statute in regard to corpo- but the general assembly shall provide, by rate organizations, it is always to be deter-general laws, for the organization of all cormined upon just construction of the powers porations hereafter to be created." Manifestgranted therein, with a due regard for all the ly the constitution of 1870 reversed the old other laws of the state upon that subject. policy of granting exclusive privileges to gas **** The manner in which these powers companies. After 1870 the public policy of shall be exercised, and their subjection to the the state was against the granting of exclurestraint of the general laws of the state, and sive privileges to corporations of any kind. its general principles of public policy, are The general incorporation act of 1872 was not in any sense enlarged by inserting in the passed in pursuance of section 1, art. 11. The articles of association the authority to depart prohibition of special charters granting extherefrom." Navigation Co. v. Railway Co., clusive privileges, and the authorization of supra. In the Oregon Railway Case, supra, incorporations under a general law, followed a railroad corporation had been organized un- by the passage of such a law, put the people der a general law of the state of Oregon of this state on record as being opposed to the which contained the following provision: creation of monopolies of all kinds. "Whenever three or more persons shall desire to incorporate themselves for the purpose of engaging in any lawful enterprise, busi-eral incorporation law, if a giant trust comness, pursuit, or occupation, they may do so pany can be clothed with the power of buyin the manner provided in this act;" and it ing up and holding the stock and property of was declared in the articles of association that such companies, and, through the control the company might exercise the power to thereby attained, can direct all their operalease the railroad. The court there held that tions, and weld them into one huge combinathe power to lease its road, and turn over the tion? The several privileges or franchises use of its franchises to another company, intended to be exercised by a number of comwas not authorized by the general incorpora-panies are thus vested exclusively in a single tion act of the state, nor by the course of leg- corporation. To create one corporation for islation therein, and that, therefore, such the express purpose of enabling it to control power could not be conferred by the declara- all the corporations engaged in a certain kind tion contained in the articles of association. of business, and particularly a business of a The leasing of the road, in the absence of stat-public character, is not only opposed to the utory authority therefor, was not sanctioned public policy of the state, but is in contravenas being a "lawful enterprise," within the tion of the spirit, if not the letter, of the conmeaning of the language above quoted.

But of what avail is it that any number of gas companies may be formed under the gen

stitution. That the exercise of the power atThe public policy of a state may be indi- tempted to be conferred upon the appellee cated by the provisions of its constitution as company must result in the creation of a related to past and present legislation. In monopoly results from the very nature of the Gas-Light Co. v. Manufacturing Co., 115 U. power itself. If the privilege of purchasing S. 650, 6 Sup. Ct. Rep. 252, a gas company and holding all the shares of stock in all the had been given, in 1835, the exclusive privi- gas companies of Chicago can be lawfully lege of making and selling gas in New Or- conferred upon appellee under the general inleans for some 50 years, and the question was corporation act, it can be lawfully conferred whether such exclusive privilege was abro- upon any other corporation formed for the gated by the new constitution of 1879, which purpose of buying and holding all the shares contained a provision abolishing the monop- of stock of said gas companies. The design oly features in all existing charters. The of that act was that any number of corporaUnited States supreme court said in that case: tions might be organized to engage in the "The monopoly clause only evinces a pur- same business, if it should be deemed desirapose to reverse the policy, previously pur-ble. But the business now under considerasued, of granting to private corporations tion could hardly be exercised by two or three franchises, accompanied by exclusive privi- corporations. Suppose that, after appellee had leges, as a means of accomplishing public purchased and become the holder of the maobjects." We have been referred to more than 50 special charters granted by the legislature of this state, in the years 1853, 1854, 1855, 1857, 1859, 1861, 1865, 1867, and 1869, to gas companies in various cities and towns in the state, each one of which confers the exclusive privilege of laying gas-pipes in the streets for a number of years. But when the constitution of 1870 was adopted it provided in section 22, art. 4, that the general assembly should pass no local or special law

jority of shares of stock of the four companies in Chicago, another corporation had been organized with the same object in view; that is to say, for the purpose of purchasing and holding a majority of the shares of stock of the gas companies in Chicago, there being only four of such companies. What would there be for the corporation last formed to do? It could not carry out the object of its creation, because the stock it was formed to buy was already owned by an existing corporation.

Hence to grant to the appellee the privilege | manufacture and sale of gas in Chicago withof purchasing and holding the capital stock out submitting to such regulations as the of any gas company in Chicago is to grant to common council of the city might by ordiit a privilege which is exclusive in its char-nance impose, nor could it erect a gas factory acter. It is making use of the general in- and lay its pipes in the streets without the corporation law to secure a special "privilege, consent of the common council. It accepted immunity, or franchise;" it is obtaining a its certificate of organization subject to the special charter under the cover and through condition that it would obtain such consent the machinery of that law, for a purpose for- and submit to such regulations, if it engaged bidden by the constitution. To create one in the business of making and selling gas in corporation that it may destroy the energies that city. As between it and the state, it of all other corporations of a given kind, and was bound to fulfill this condition in its casuck their life-blood out of them, is not a pacity as a separate and independent organ"lawful purpose." ization, and not as the governing influence It may be here stated, as showing the poli- in the directories of other organizations. But cy of the state to be against the purchase by it either does or may engage in the business one gas company of stock in other corpora- of making and selling gas in Chicago without tions, that the power to purchase such stock obtaining the consent of the council, and is not granted in any of the more than 50 without submitting to the regulations of the special charters above named. On the con- city, by operating through the four compatrary, in each of these charters the power of nies, a majority of whose stock it owns, and the gas company to acquire and hold personal whose business it can therefore control. It property is limited to such personal estate thus indirectly makes use of privileges "as may be necessary and proper for the con- granted to the four companies, but never struction, extension, and usefulness of the granted directly to itself. The regulations works of said company, and for the manage- which the common council might have ment and good government of the same." deemed it necessary to make, with reference The power of purchasing and holding the to the use of the streets by appellee, may not capital stock of the four gas companies in have been the same as those which the four question tends to relieve appellee of a proper companies were required to submit to. But share of its legal obligations, and to enable this is not all. By the terms of the provisit to carry on a gas business without subject-ion above quoted, appellee could only obtain ing itself to the restrictions imposed by the statute. To this extent the exercise of such power is not lawful.

the consent of the council to erect gas factories and lay pipes in the streets of the city "subject to existing rights." What were The successful operation of a gas company "existing rights?" The rights already sein any city requires the use of the public cured by the four companies to use the streets streets for the purpose of laying pipes and and alleys, and make and sell gas. But the mains. Section 1, art. 5, of the general act appellee, through the controlling interest for the incorporation of cities and villages, which it owns in the stock of the four comconfers upon the city council the power to panies, can use the streets, and make and regulate the use of the streets, to provide for sell gas, independently of the existing rights the lighting of the same, and to regulate the of the four companies; and not only so, but openings therein for the laying of gas pipes it either does or may absorb, combine, and use and mains, and erecting gas-lights. By the the rights of said companies, and subordinate same section it is also provided that any com- them to its own purposes. In the mode thus pany "organized for the purpose of manu- indicated, the appellee, in the exercise of the facturing illuminating gas to supply cities or extraordinary power sought to be conferred villages, or the inhabitants thereof, with the upon it, may avoid the wholesome restricsame, shall have the right, by consent of the tions of the law applicable to the circumcommon council, (subject to existing rights,) stances under which gas companies are perto erect gas factories, and lay down pipes in mitted to use the public streets. By the use the streets or alleys of any city or village in of the words "subject to existing rights" in this state, subject to such regulations as any the city incorporation act, the legislature such city or village may by ordinance im- plainly indicated its intention that there pose." The general act for the formation of should be no combination between gas comcorporations, considered with reference to the panies, but that each should separately purpowers conferred by it upon gas companies sue its business of furnishing gas to the inorganized under it, must be construed in con- habitants. If every new company seeking nection with the city incorporation act. The the consent of the council to its use of the provisions of the latter act, as above quoted, streets for laying gas-pipes is required to are to be considered as a part of every charter accept such consent, "subject to existing granted to a gas company under the former rights," the companies already existing, and act. The charter, or, speaking more accu- already exercising the rights of using the rately, the articles of association, of every streets and furnishing light, must be alsuch gas company can only be issued or ac-lowed to continue to do so, and to do so indecepted subject to the foregoing provisions. pendently of the new company, and as sepaHence the appellee company could not exer- rate organizations under their respective charcise the power of operating works for the ters. Gas companies, being engaged in a

business of a public character, are charged | named companies had given bond not to "sell, with the performance of public duties. Their lease, or transfer their franchises and priviuse of the streets whose fee is held by the leges to any other gas company," and not to municipal corporation, in trust for the bene- "enter into any combination with any other fit of the public, has been likened to the exer- company concerning the rate (or price) to be cise of the power of eminent domain. Coke charged for gas." But the Chicago Gas Co. v. Coke Co., supra. In Gibbs v. Gas Co., Trust Company, by reason of its ownership supra, the supreme court of the United of the majority of the shares of stock of the States, in an able opinion delivered by Mr. Consumers' Company and the Equitable ComChief Justice FULLER, uses these words: pany, can effect a virtual transfer of their "These gas companies entered the streets of franchises and privileges to itself, in spite of Baltimore under their charters, in the exer- the condition imposed by the ordinance, and cise of the equivalent of the power of eminent in utter disregard of the public interests. domain, and are to be held as having as- We concur in the following views expressed sumed an obligation to fulfill the public pur- by the supreme court of Georgia in the case poses to subserve which they were incorpo- of Railroad Co. v. Collins, supra: "All experated." rience has shown that large accumulations of property in hands likely to keep it intact for a long period are dangerous to the public weal. Having perpetual succession, any kind of a corporation has peculiar facilities for such accumulation, and most governments have found it necessary.to exercise great caution in their grants of corporate powers. Even religious corporations, professing, and in the main, truly, nothing but the general good, have proven obnoxious to this objection, so that in England it was long ago found necessary to restrict them in their powers of acquiring real estate. Freed, as such bodies are, from the sure bound to the schemes of individuals,—the grave,-they are able to add field to field, and power to power, until they become entirely too strong for that society which is made up of those whose plans are limited by a single life."

reversed, and the cause is remanded to that court, with directions to sustain the demurrers to the pleas, and for further proceedings in accordance with the views here expressed. (130 Ill. 230)

The privileges awarded to the four gas companies under their respective charters were given them in return for and in consideration of services to be rendered by them to the public. When they entered the streets of Chicago, they assumed the performance of the public duty of furnishing light to the inhabitants. That they should be permitted or required or forced to abandon the performance of such public duty is against the policy of the law. The public duty is imposed upon each company separately, and not upon the four, when combined together. Each for itself, when it accepted its articles of association, assumed an obligation to perform the objects of its incorporation. But the appellee, through the control which it does or may exercise over the four companies by reason of its ownership of a majority of their stock, renders it impossible for them to discharge We are of the opinion that the court below their public duties, except at the dictation of erred in overruling the demurrers to the an outside force, and in the manner pre-pleas. The judgment of the circuit court is scribed by a corporation operating independently of them. They are thus virtually forced to abandon the performance of their duty to the public. The freedom and effectiveness of their action in carrying out the purposes of their creation are seriously interfered with, if not actually destroyed. A power whose exercise leads to such a result cannot be lawfully intrusted to any corporate body. We held in Coke Co. v. Coke Co., supra, that, for the reasons there stated, a contract between two of these four companies, the effect of which was to stifle competition between them, and necessitate an abandonment of their public duties, was against public policy, and could not be enforced. The attempt to consolidate the two companies by placing the majority of their stock in the hands of the appellee would accomplish the same unlawful result which was sought to be obtained by the forbidden contract. In ordinances passed by the common council of the city of Chicago, granting permission to the other two of the four companies, to-wit, the Equi-missed the bill at the hearing, and the appeltable Gas-Light & Fuel Company, and the late court affirmed the decree. Consumers' Gas Company, (or its predecessor,) to lay pipes in the streets for the pur- cause for divorce that a husband or wife "has appeals. Rev. St. Ill. c. 40, § 1, makes it pose of supplying gas to the inhabitants of the city, it was provided that such permission should not take effect until the two last-bar.

YOUNGS v. YOUNGS.1 (Supreme Court of Illinois. Nov. 26, 1889.) DIVORCE-MOrphine Habit-Cruelty-CondONA

TION.

1. The use of morphine by means of hypodermic injections is not drunkenness, within the meaning of Rev. St. Ill. c. 40, § 1, which makes habitual

drunkenness a cause for divorce.

2. Acts of violence by a husband towards his wife, in resisting her attempts to prevent him from using morphine, do not constitute extreme § 1, which makes extreme and repeated cruelty a cruelty, within the meaning of Rev. St. Ill. c. 40, cause for divorce.

3. The fact that a wife lives with her husband

more than three months after his last act of vio-
lence to her is, if unexplained, sufficient proof of
condonation.

Appeal from appellate court, first district.
Bill for divorce. The circuit court dis-

Complainant

1 1Reported by Louis Boisot, Jr., of the Chicago

been guilty of habitual drunkenness for the space of two years, or has been guilty of extreme and repeated cruelty."

C. F. Loesch, (George Briggs, of counsel,) for appellant. A. J. Hopkins, N. J. Aldrich, and F. H. Thatcher, for appellee.

and her child proper and necessary food and clothing, and was harsh, unkind, and tyrannical in his treatment of the complainant; but no specific acts of cruelty were set out or charged in said bill. The defendant demurred to the portion of the bill charging cruelty, and answered the residue, denying said charge of drunkenness. On the 25th day of June, 1888, the complainant filed her petition for alimony pendente lite, and for an allowance for her solicitor's fees, which petition was denied; and thereupon, on the 9th day of July, 1888, she amended her bill by inserting therein a number of specific charges of cruelty. The defendant answered, denying said charges; and, the cause afterwards coming on to be heard by the court on pleadings and proofs, a jury being waived, the issues were found for the defendant, and a decree was entered upon said finding, dismissing the bill for want of equity. Said decree was affirmed by the appellate court, and by appeal from the judgment of that court the complainant has brought the record here, and assigned errors.

BAILEY, J. This was a bill in chancery, brought by Marie A. Youngs against Phineas B. Youngs, her husband, in the circuit court of Cook county, praying for a divorce. The parties were married at Galva, Ill., February 12, 1879, and shortly thereafter took up their residence at Aurora, Kane county, Ill., where they resided until about the 1st of March, 1887. One child, a daughter, was born as the fruit of their marriage, who, at the date last mentioned, was about five years of age. On or shortly after March 1, 1887, the complainant left her husband, and went to the city of Chicago, where her father and sister were living. On the 4th day of March, 1887, she filed a bill against her husband for a divorce in the circuit court of Cook county, setting up, as her only ground of complaint, that her husband, for more than two years The evidence fails to show that the defendthen last past, had been guilty of habitual ant has ever been in the habit of drinking indrunkenness. On the 11th of April, 1887, toxicating liquors, at least to excess. But it the parties executed an instrument in writ- is claimed, and the evidence on behalf of the ing, whereby it was agreed that they should complainant tends to show, that for several live separate and apart for the period of one years prior to the time the complainant left year from that date; and that during that him the defendant had been in the habit of period the defendant should pay the com- using morphine, administered by hypodermic plainant at the rate of $35 per month for the injections in the arm and leg. It appears support and maintenance of herself and child; that the effects of morphine thus administered and that the defendant should have the privi- are very similar and in many respects aplege of seeing said child by himself, or in the parently identical with those produced by the presence of the complainant, as he might pre- excessive use of intoxicating liquors. This fer, one day each month during the continu- branch of the complainant's case, therefore, ance of said contract; that the complainant must rest upon the proof of the defendant's should immediately dismiss her bill for a di- indulgence in the morphine habit, and must vorce, and refrain from commencing any necessarily fail, unless it can be held that other proceedings of like character during the the intoxication and stupor produced by the same period; that the defendant during that excessive use of morphine is "drunkenness," time would wholly refrain from the use of within the meaning of the first section of the morphine or liquor in any form, except for statute in relation to "Divorce." It cannot medical purposes, and under the direction of be doubted, we think, that the word "drunka skillful and reputable physician. For the enness" is used in said statute in its ordinary period of one year mentioned in said instru- and popular sense. The primary signification ment the parties lived separate and apart, of the word, as given by Webster, is: "The the defendant living in Aurora and the com- state of being drunken, or overpowered by plainant remaining in Chicago; the defend- alcoholic liquor; intoxication; inebriety." In ant during that time making to the complain-Bouvier's Law Dictionary it is defined as ant the monthly payments agreed upon. At "the condition of a man whose mind is afthe end of the year the defendant ceased to fected by the immediate use of intoxicating make further payments, and the complainant, drinks." A similar definition is given by on the 12th day of April, 1888,-the day fol- Rapalje & Lawrence in their Law Dictionary, lowing the termination of the year,-filed in viz.: "Disorder of the mind occasioned by the same court a new bill for a divorce. By the recent use of intoxicating liquor." The said bill the complainant alleged, as she had supreme judicial court of Massachusetts, in in her former bill, that the defendant, for the defining the meaning of the word as used in period of more than two years prior to the the statutes of that state, say: "There can time she left him as aforesaid, was guilty of be no doubt that drunkenness, as it is comhabitual drunkenness, and also alleged gen-monly understood in the community, is the erally that the defendant had been guilty of extreme and repeated cruelty towards the complainant, that is, that he had on divers days and times since said marriage beaten and abused her, and neglected to furnish her

result of the excessive drinking of intoxicating liquors. Such is also the signification given to it by lexicographers. It is ebriety, inebriation, intoxication; all words nearly synonymous, and all expressive of that state

or condition which inevitably follows from I have known and contemplated the natural taking into the body, by swallowing or drink- and probable results of her action, and to ing, excessive quantities of such liquors." It have thus voluntarily encountered the viowas held in that case that evidence of habit-lence which ensued. We would not be unual intoxication from the use of chloroform derstood as holding that the intoxication or would not sustain a complaint, under the delirium produced by the voluntary use of Massachusetts statute, charging a person morphine can be set up as a justification of with being a common drunkard. Com. v. tortious acts committed by one under the inWhitney, 11 Cush. 477. That the word is fluence of that drug, any more than can inused in our statute in the sense above indi-toxication produced by the use of alcoholic cated, and that it cannot be held to include liquors. But if the violence complained of intoxication produced by the hypodermic ad- was provoked by the complainant's attempts ministration of morphine, seems to be the in- to take the morphine from her husband while evitable conclusion. A further confirmation he was in a state of total or partial delirium, of this view, if such were necessary, may be and if, as the evidence seems to show, his derived from the fact that habitual drunken-acts consisted mainly of resistance on his part ness for two years was made a ground for to such attempts, the complainant cannot set divorce by our statute as early as the year up the treatment received by her under such 1827, which was many years before the mode circumstances as extreme and repeated cruelof administering morphine by hypodermic in- ty, within the meaning of the statute. jection was known, as we suppose, even to the medical faculty. As originally used, therefore, these words could not have been intended to include intoxication produced by the administration of morphine in this mode; and, as the same words have been continued, in precisely the same connection, in every subsequent revision of our statutes, the conclusion is irresistible that the words are to be understood now in the same sense in which they were originally employed. It is beyond the power of the courts to extend the application of said words to a subject not within the legislative intent. To make an excessive indulgence in the morphine habit a ground for divorce will require further legislative action, as it is clearly not made such by the statute as it now stands.

The complainant's charges of extreme and repeated cruelty remain to be considered. The evidence tending to support those charges is to be found in the testimony of the complainant, corroborated in part by the testimony of her sister and of a domestic in the family. In the defendant's testimony, said acts of cruelty are specifically denied. If it be admitted that the preponderance of the evidence is with the complainant, it remains to be seen whether, upon her own showing, she has suffered at the hands of the defendant such extreme and repeated cruelty, within the meaning of the statute, as should entitle her to a divorce. The testimony of the complainant and her witnesses shows the commission by the defendant of several acts of personal violence to the complainant, which, if unexplained, would, as must probably be conceded, make out a case of cruelty sufficient to entitle the complainant to a decree. But it affirmatively appears that all of said acts of violence were committed while the defendant was under the influence of morphine, and that they were generally brought on by the complainant's attempts to interpose, and prevent the defendant's administering to himself that drug. However praiseworthy may have been her efforts to take the morphine out of her husband's possession, or to prevent his using it, she must be deemed to

The evidence tends to show, and is, as we think, sufficient to establish, condonation. The last act of personal violence to the complainant proved took place some time in December, 1886; but the evidence shows that the complainant continued to live and cohabit with the defendant until she left him, about the first of the following March. No subsequent conduct on the part of the defendant is shown which can be held to be sufficient to do away with such condonation, and we think the chancellor was correct in holding it to be a bar to the complainant's right to relief. As tending to support her charge of cruelty, the complainant gave some evidence to the effect that while she lived and cohabited with the defendant she was compelled by him to submit to excessive sexual intercourse. We have duly considered the evidence on that point, and have only to say that in our opinion it fails to show such state of facts as would amount in law to cruelty.

The conclusion reached by the chancellor, that the complainant is not entitled to relief on the ground of cruelty, is very considerably fortified by considerations drawn from the mode in which her complaint in that behalf has been brought forward. She left her husband, and went to Chicago, about March 1, 1887, and on the 4th day of that month she filed her bill against him for a divorce. At that time the cruelty which she claims to have suffered must have been fresh in her recollection; and it was but reasonable to expect that if she was entitled to a divorce on that ground she would allege it in her bill. The only ground alleged, however, was habitual drunkenness; no mention whatever of any acts of cruelty being made. In the articles of agreement entered into a few days later, by which they arranged to live separate and apart for a year, it was recited that certain differences had arisen between them; but the only matter of difference in any way hinted at in the instrument related to the use by the defendant of morphine and liquor. At the expiration of the year the complainant filed a new bill for divorce, alleging habitual drunkenness as before, but charging cruelty only