tion north to the premises fenced in and occupied by the church and cemetery. deposition of Hardy that he had made such | tract in dispute was a strip of land extendstatement. In Bald v. Nuernberger, supra, ing from the south line of the quarter secit was held that such evidence was proper. The only claim of the plaintiff in error to the land in controversy was based upon 20 years' adverse possession by himself and his grantors, and it has always been held that to establish title by adverse possession such possession must be, in fact, hostile and adverse. In such cases the character of the possession is always largely a question of fact and of intention. If it is permissive or with no intention of claiming adversely to the true owner, such possession, of course, will not be adverse, and declarations of the party in possession are admissible as showing that his possession was permissive or not adverse. [2, 3] It is claimed that a plat drawn by a surveyor, one Krebs, a witness for the defendants in error, was improperly admitted in evidence, because it contained references to surveyors' records not contained in the evidence. There is no objection in the record to this plat. An assessor's plat, so called, was admitted in evidence against the objection of plaintiff in error. It was identified as a copy made from one of the books of record of the county used in the preparation of the assessors' books. We infer that it was such a plat as is authorized and required by sections 62 and 63 of the Revenue Law (Hurd's Stat. 1913, p. 2035), and would be competent evidence in some cases but not in this case, where the only issue was the title to the premises in controversy. Only a general objection, however, was made to its introduction, and there were other plats and drawings of the premises in controversy and the surrounding land in evidence similar to the one objected to. We do not think its admission was harmful under all the circumstances. [4] Complaint is made of the action of the trial court in sustaining objections to certain cross-questions. Defendants in error proved that a stone was set in the center of the Kaskaskia road, at the southwest corner of the northeast quarter of section 10, in 1857, by Frederick Graner, then county surveyor. In 1874 another surveyor, Hugo Ropiequet, discovered that there was an overplus in the section, and afterwards, in apportioning this overplus between the east and west halves of the section, a stone was placed some 18 or 20 feet west of the corner stone placed by Graner. The cross-questions to which objections were sustained called for the knowledge of the witnesses as to the stone west of the corner stone. They would only have been misleading, and objections thereto were properly sustained. This evidence also was not very material. There was never any question raised as to east and west boundaries of the tract of land in controversy, and the location of the same with reference to the north and south quarter section line and the Kaskaskia road. The [5] As to the contention that there is a variance between the premises described in the declaration and the premises described in the deed offered in support of the title of defendants in error, we think it clearly appears from the evidence that the original corner stone in the center of the Kaskaskia road was the southwest corner of the northeast quarter of section 10; and also the southwest corner of the tract in dispute. Measuring from this stone, which was found since the former trial in the center of the Kaskaskia road by digging for the same, and taking it as the center of the Kaskaskia road both at the time the deed was made and at the present time, there is no material variance between the descriptions of the tract in the deed and in the declaration. The description in the deed calls for a tract commencing at the southwest corner of the southwest quarter of the northeast quarter of section 10, in the middle of the Kaskaskia road; running east 51⁄2 poles; thence north 40 poles; thence west 51⁄2 poles to the middle of the Kaskaskia road; thence south 40 poles to the place of beginning. The defendants in error had possession of said tract except the south 347 feet. The declaration describes the tract as beginning at the middle of the Kaskaskia road, on the south line of the southwest quarter of the northeast quarter of section 10; running thence east 51⁄2 rods; thence north 347 feet; thence west 51⁄2 rods to the middle of the Kaskaskia road; thence south 347 feet to the place of beginning, etc. It is contended by the plaintiff in error that the words "in the middle of the Kaskaskia road" should be regarded merely as descriptive; the corner of the quarter being the real starting point. The Kaskaskia road runs north and south, and, as shown by the evidence, is in the same place now that it was when the deed was made, which was in 1868. At that time, according to the surveys and monuments established to mark the same, the middle of the road where it intersected the south line of the southwest quarter of the northeast quarter of section 10 was also the southwest corner of the quarter. It does not appear that the quarter section corner has ever been definitely located at any other point. The question of variance was also passed upon by this court in the former appeal (Bald v. Nuernberger, supra). We gather from the evidence that the center line of the road is the quarter section line, which being true, there is no material variance. [6] The fifth instruction given on behalf of defendants in error is objected to. It states, in substance, that to acquire a title by 20 years' adverse possession the possession must be hostile from the beginning; that, if the jury believed that Jacob Hardy, grantor of Law, Cent. Dig. § 9; Dec. Dig. 12.] In construing Constitutions, as with statutes, the chief purpose is to give effect to the intent of the makers. Law, Cent. Dig. §§ 9, 10; Dec. Dig. 13.] In construing a statute, to give intent to the TENT OF LEGISLATURE. IN When great inconvenience or absurd consequences will result from a particular construction of a statute, the courts are bound to as sume that such consequences are not intended. [Ed. Note.-For other cases, see Statutes. Cent. Dig. §§ 259, 263; Dec. Dig. 181(2).] 5. STATUTES 90(1), 96(1)-CONSTRUCTIONCONSTITUTIONAL PROVISIONS. plaintiff in error, had possession of the prem-designed as a chart upon which every man, ises by permission of the defendants in er- learned or unlearned, may be able to trace the ror or their predecessors, as trustees of the leading principles of government. church, his possession could not become hostile until he repudiated the rights of such persons and declared that the land was his own. This instruction it not objectionable when applied to the facts of this case. The facts were different in Knight v. Knight, 178 Ill. 553, 53 N. E. 306, cited by counsel for plaintiff in error. In that case the owner of premises had given a deed to the same but remained in possession. It was held such owner could acquire title by 20 years' adverse possession after giving the deed, and that in an action of ejectment for the premises, in which the jury were otherwise properly instructed as to the law, certain instructions were properly refused as misleading, which informed the jury that possession of the grantor in the deed could not be regard-4. ed as hostile unless it appeared that such grantor had formally disclaimed the title conveyed by his deed and orally asserted that he was the owner notwithstanding the deed. The instruction in question in this case was based upon the theory that the original possession was permissive, and in such cases it is a general rule that the statute does not begin to run until the permissive character of such possession is terminated by some act of the party in possession, equivalent, under the circumstances, to a repudiation of the permissive possession, from which time the statute will commence to run. Grand Tower Mining Co. v. Gill, 111 Ill. 541. A review of the entire record shows that most of the questions raised were touched upon and disposed of in Bald v. Nuernberger, supra, and on the second trial the decision in that case seems to have been followed by the trial court. In brief, the owner of the land in dispute and in whom was the common source of title conveyed the same by deed to the predecessors of defendants in error, as trustees of the Methodist Episcopal Church of Dutch Hill, and their successors, and said grantees had title to the same. Neither plaintiff in error nor his grantors ever acquired title thereto by 20 years' adverse possession. The grantors of plaintiff in error never claimed or had any intention of claiming title to the land in controversy. Laws 1915, p. 286, repealing 1 Priv. Laws 1867, art. 11, p. 359, is not violative of Const. bly shall not pass local or special laws for inart. 4, § 22, providing that the General Assemcorporating cities, towns, or villages, or changing or amending the charter of any city, town, of common schools, since it is the substance, and or village, and providing for the management not the form, that determines the constitutionality of an enactment, and the special purpose of the provision was to discourage dissimilarity and all subjects referred to, and the act tends to to promote and encourage legislation uniform on promote uniformity in the organization of incorporated cities and in the management of their schools. Cent. Dig. §§ 98, 107; Dec. Dig. 90(1), [Ed. Note.-For other cases, see Statutes, 96(1).] 6. MUNICIPAL CORPORATIONS OF LEGISLATURE. 75-POWER It is solely within the discretion of the Legislature, in matters concerning municipal corposent of the people in the locality to be affected, rations, whether they shall first obtain the conor act directly themselves. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 179, 180; Dec. Dig. m75.] Dunn and Cartwright, JJ., dissenting. Mandamus by the People, on the relation of George S. Rogerson, against William A. Crawley and others, requiring them to organize a school district. Writ awarded. George B. Gillespie, of Springfield (Gillespie & Fitzgerald, of Springfield, of counsel), for petitioner. M. T. Layman, J. Marshall Miller, and John M. Butler, all of Jacksonville, for respondents. CARTER, J. At the April term of this court a petition was filed for a writ of man damus against the respondents, trustees of schools of township 15 north, range 10 west of the third principal meridian, in Morgan county, Ill., requiring them to cause the territory formerly constituting school district No. 117, theretofore acting under special charter, to be organized into a school district under the general school law of the state and to hold an election for a board of education. The writ was issued as prayed at the April term, with the statement from the bench that an opinion would be filed later. The city of Jacksonville was incorporated by special charter on February 10, 1857. Private Laws of 1857, p. 344. The Legislature amended the charter several times, and by a special act, approved February 15, 1867, granted a new charter. 1 Private Laws of 1867, p. 336. This charter was also amended prior to the Constitution of 1870. Article 11 of that charter provided for a system of "graded schools." The first section of that article stated that all the territory within the city of Jacksonville should be a common school district, and section 3 provided that the district should be under the supervision of a board of education, consisting of the mayor and one director from each ward. Section 18 provided that all the officers should hold their offices until their successors were appointed and qualified. The district composed of the said city has been known as No. 117. In 1887, under an election held for that purpose, the city of Jacksonville adopted and became organized under the general law for the incorporation of cities and villages. This court, in Smith v. People, 154 Ill. 58, 39 N. E. 319, while deciding that the city of Jacksonville by this election abrogated the special charter, generally, as to city government, held that article 11, providing for a special school district, was still in force. In 1915 an act was passed repealing section 11 of the city charter, reading as follows: "Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That article 11 of an act entitled 'An act to incorporate the city of Jacksonville, in the county of Morgan, and state of Illinois,' approved February 15, 1867, as amended by an act approved March 29, 1869, be and the same is hereby repealed. This act shall not take effect and be in force until the first day of March, A. D. 1916." Laws of 1915, p. 286. On March 1, 1916, the school trustees of said township held a special meeting at the request of various citizens, to consider whether the territory theretofore composing school district No. 117 was unincorporated territory, and whether, therefore, they should proceed to organize it under section 45 of the general school law (Hurd's Rev. St. 1915-16, c. 122). At this meeting the trustees passed a resolution, which stated, among other things, that they refused to take any steps towards the organization of said territory into a school district until required to do so by the judgment, order, or decree of a competent court. The respondents have filed an answer in this cause, admitting all the material facts here stated, but denying that the writ should issue, because they assert that said act repealing article 11 is void, being special legislation, in conflict with section 22 of article 4 of the Constitution of 1870. The provisions of said section 22 which are relied on by respondents read as follows: "The General Assembly shall not pass local or special laws in any of the following enumerated * incorpocases, that is to say: For rating cities, towns or villages, or changing or amending the charter of any town, city or village. * Providing for the management * * In all other cases of common schools. * where a general law can be made applicable, no special law shall be enacted." It is not seriously contended by counsel for respondents that the last clause just quoted applies to the facts in this case. They in sist, however, that the repeal of said article 11 amounted to changing and amending the charter of a city; while counsel for the people insist that under the statement of facts such act of June, 1915, in no way amends or changes the city charter, as, they argue, under the holding in Smith v. People, supra, the special charter of the city was revoked and the city came under the general Cities and Villages Act, and the school district was practically left under a special charter by itself, which did not still constitute a part of the city charter. They further argue, that under the decisions of this court, among which is Land Com'rs v. Kaskaskia Commons, 249 Ill. 578, 94 N. E. 970, the act of June, 1915, does not provide for "the management of schools." Therefore they claim said act is not void as in conflict with any of the provisions of section 22. [1-5] For the purposes of this case we will assume that article 11 of the special charter of said city was at the time of the passage of said act of June, 1915, still to be considered a part of the city charter. Must we, then, conclude that the act of June, 1915, is in conflict with the provision of said section 22 of article 4 of the Constitution that the charters of incorporated cities cannot be amended or changed by special legislation? We cannot hold that said act is so in conflict. The general principles governing the construction of Constitutions are the same as those that apply to statutes. People v. Hutchinson, 172 Ill. 486, 50 N. E. 599, 40 L. R. A. 770, and cited authorities; 8 Cyc. 729. If there be any dis tinction, less technical rules of construction are applied in construing Constitutions than in construing statutes. "Narrow, technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves for themselves, and designed as a chart, upon which every man, learned and unlearned, may be able to trace the leading principles of government." Cooley's Const. Lim. (6th Ed.) 73; Am. & Eng. Ency. of Law (2d Ed.) 925, and note. In construing Constitutions, as with statutes, the chief purpose is to give effect to the intent of the makers. Cooley's Const. Lim. (6th Ed.) 69. In seeking such intention we uniformity rather than to perpetuate differences. Surely an act which should repeal all such special laws would not be a local or special law and obnoxious to this provision of the Constitution, and so one repealing all special limitations, leaving all other provisions of such special acts in force, is, upon the same principle, not prohibited." are to consider the language used by the Legislature, the evil to be remedied, and the object to be attained. We are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute, though not within the letter. A thing within the letter is not within the statute, if not within the intention. When the intention It was never intended by these provisions can be gathered from the entire document, of the Constitution that the special charters words may be modified or altered so as to then in existence of cities and villages could obviate all inconsistency with such intention. not be changed or modified. It has been freWhen great inconvenience or absurd conse- quently held by this court that all municipal quences will result from a particular con- corporations are subject to legislative construction, the courts are bound to assume that trol, and their charters may be changed, such consequences are not intended. Hoyne modified, enlarged, restrained, or abolished v. Danisch, 264 Ill. 467, 106 N. E. 341, and to suit the exigencies of the case. City of cases cited; Warner v. King, 267 Ill. 82, 107 Chicago v. Town of Cicero, 210 Ill. 290, 71 N. E. 837. N. E. 356, and cited cases; Chalstran v. Board of Education, 244 Ill. 470, 91 N. E. 712. The only restriction upon this power is that it shall not be done by local or special laws. It may well be that article 11 of the special charter of the city of Jacksonville is different from the school provisions of the special charter of any other city in the state. By this section of the Constitution it was surely never understood that there was no legal way of modifying or changing said article 11. If it cannot be done by this law, then a law which by its words seemed to apply to all cities having such provisions would not be constitutional if, in fact, it only applied to the city of Jacksonville, for this "In construing so important an instrument as a Constitution * * ** we are not, on the one hand, to indulge ingenious speculations which may lead us wide from the true sense and spirit of the instrument, nor, on the other, to apply to it such narrow and constrained views as may exclude the real object and intent of those who framed it. * * We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people and to the establishment of rules for the perpetual security of the rights of person and property had the wisdom to adapt their language to future as well as existing emergencies. * Qui hæret in litera, hæret in cortice, is a familiar maxim in the law. "The letter killeth, but the spirit maketh alive,' is the more forcible expression of Scripture." Henshaw v. Foster, 26 Mass. (9 Pick.) 312. court has more than once held that a statute The chief, if not the sole, purpose of the general in its terms, but applicable only to provisions of said section 22 of article 4 of one single locality, was special and not genthe Constitution was to discourage dissimilar-eral. Devine v. Cook County Com'rs, 84 Ill. ity, and to promote and encourage legislation 590; Knopf v. People, 185 Ill. 20, 57 N. E. which should be uniform on all subjects re- 22, 76 Am. St. Rep. 17; Kingsbury v. Sperry, ferred to in said section. The debates in the 119 Ill. 279, 10 N. E. 8; Pettibone v. West constitutional convention on this subject and the decisions of this court support this conclusion. In People v. Cooper, 83 Ill. 585, 591, in construing the provisions of this section of the Constitution, it was stated: "It is the substance, and not the mere form given to the enactment, which must determine its constitutionality. If the act must necessarily produce a result clearly and unquestionably forbidden by the Constitution, it cannot be upheld, whatever may be its form or profession, and therefore, if the General Assembly should, by one or many enactments, authorize the incorporation of every city, every town, or every village with a distinct and dissimilar organization and powers, such enactment or enactments would be within the constitutional prohibition of local or special legislation,' although having the form of general laws." In Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Randle, 183 Ill. 364, 370, 55 N. E. 728, 730, it was argued that certain acts violated the provisions of the Constitution as to special legislation. The court there said: 387. This court has never held any act unChicago Park Com'rs, 215 Ill. 304, 74 N. E. constitutional, under this section, which tended to uniformity rather than to create differences, and while it may be argued that this act is special, in that it only applies to one city, to so hold would surely be to construe these constitutional provisions technically, and not according to their spirit, for the result of this legislation is to bring the schools in the city of Jacksonville under the provisions of the general law, and thus promote uniformity "rather than to perpetuate differences." This court said in People v. Cooper, supra (83 Ill. on page 590): "It is not admissible, either by the letter or the spirit of the Constitution, that dissimilarity in character of organization or powers, in municipalities of the same class or grade, shall be created or perpetuated by enactments of the General Assembly." this court in People v. Board of Trustees, 170 This doctrine is quoted with approval by Ill. 468, 48 N. E. 901. To hold as contended by counsel for respondents would be to defeat the essential principle which said section 22 was enacted to safeguard and guarantee. In Jarrolt v. Moberly, 103 U. S. 580, "The acts in question do not violate this provision. They apply to all cities in the state having such school laws, and prescribe for them the same methods of constituting the board of education, and of the same limit of taxation, as is prescribed for other cities which levy school taxes under the general law. These acts tend to 586 (26 L. Ed. 492) the court said: "A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed. ** *To contend * that the mere subdivision of counties into townships enabled the Legislature to evade the constitutional provision is to ignore the manifest intention and spirit of that instrument." This is in accord with the principle, already quoted from a decision of this court, that "it is the substance and not the form" that determines the constitutionality of an enactment. It is the real intent and purpose, rather than the strict interpretation, that should be followed in construing Constitu tions. We cannot escape the conclusion that by the great weight of authority, as well as by the letter and spirit of these constitutional provisions, this statute is valid. To so hold certainly tends to promote uniformity in the character of the organization of incorporated cities and in the management of their schools, and not to perpetuate dissimilarity. [6] Counsel for respondents in their answer assert that in recent years the voters of the city of Jacksonville have voted against organizing the school district under the general law. We do not think this is material to the constitutional question here under consideration. In matters of this kind it is solely within the discretion of the Legisla ture to decide whether they shall first obtain the consent of the people in the locality to be affected or act directly themselves. City of Chicago v. Town of Cicero, supra. The law being valid, the writ will be awarded as asked for in the petition. Writ awarded. charter of the city of Jacksonville was a part of its charter at the time of the passage of the act of 1915 and does not state that the act is a general law or that it is not a special law. It merely holds that the statute is valid because it tends to promote uniformity in the character of the organization of of their schools and not to perpetuate disincorporated cities and in the management similarity-that is to say, that the constitutional provision against the amendment of a city charter by a special law may be disregarded in this instance because the special law tends to promote uniformity. The same argument may be made for the amendment of every special charter in the state by a special law. Uniformity may be desirable, but the Constitution has provided that in the case of the charters of towns, cities, and villages it must be brought about by general laws, and not by a special law for each case. It is said that it may well be that article 11 of the special charter of the city of Jacksonville is different from the school provisions of the special charter of any other city charters of municipalities operating under in the state. The different provisions in the special charters cannot be made the basis of a classification of such municipalities and of special legislation based upon such classification. People v. Board of Trustees, 170 Ill. 468, 48 N. E. 901. It is within the power of uniform in their operation, to bring about the Legislature, by the enactment of laws uniformity of organization and power in all the towns, cities, and villages in the state, but the Constitution has forbidden that this shall be done by special acts of legislation for particular cases. The writ of mandamus should be denied. (273 III. 489) LLOYD et al. v. RUSH et al. (No. 10685.) (Supreme Court of Illinois. June 22, 1916.) 1. WILLS 324(2) - PROBATE - TRIAL-DIRECTING VERDICT-TESTAMENTARY CAPACITY. Where the testimony of 18 witnesses, including both subscribing witnesses, affirming merely by testimony of 3 that she was severely testatrix's testamentary capacity, was opposed ill and suffering before she died, it was not error to direct a verdict for proponent of will claimed invalid because of testamentary incapacity of testatrix. DUNN and CARTWRIGHT, JJ. (dissenting). The laws by virtue of which a city exercises its powers and performs its duties constitute its charter. Section 11 of the charter of the city of Jacksonville, providing a system of schools, was not abrogated by the organization of the city under the general City Incorporation Act (Smith v. People, 154 Ill. 58, 39 N. E. 319), but continued as the law, under which the duty was imposed upon the city of sustaining graded schools, and by virtue of which, as a part of its charter, it exercised the powers granted to it for that purpose. Argument that the act of 1915 repealing section 11 is special is unnecessary, for it applies by name to the city of Jacksonville alone. Pettibone v. West Chicago Park Com'rs, 215 Ill. 304, 74 N. E. 387. A statute which, by its terms, can have application to but one locality in the state is special legislation. Devine v. Commissioners of Cook County, 84 Ill. 590. The act amended the charter of the city, for it changed the law under which the city exercised its powers. 3. WILLS 324(3) PROBATE - TRIAL-DIRECTING VERDICT-UNDUE INFLUENCE. Knopf v. People, 185 Ill. 20, 57 N. E. 22, 76 It is not error to direct a verdict for proAm. St. Rep. 17. The opinion of the ma-ponents of a will claimed invalid because of unjority assumes that section 11 of the special due influence, where it does not appear the al [Ed. Note.-For other cases, see Wills, Cent. Dig. § 768; Dec. Dig. 324(2).] 2. EVIDENCE 568(2) OPINION EVIDENCE— CONCLUSIONS-MENTAL CAPACITY. The opinion of a nonexpert witness that a testator is not of sound mind and memory is encircumstances which could induce a reasonable titled to no weight when he states no facts or belief of unsoundness of mind. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2393; Dec. Dig. 568(2).] For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes |