"Where the policy is absolutely void from the beginning, the company cannot claim the right In such case no premiums were ever earned, because at no time to forfeit the premiums. had the company assumed any risk." That doctrine is abundantly supported by other courts of last resort and apparently by the weight of authority on that subject, with the proper limitations. The law is fully stated in May on Insurance, § 567, in this language: attaches, and there is no fraud on the part of "If a policy be void ab initio or if risk never the insured, and the contract is not against law or good morals, he may recover back all the premiums he may have paid, either in an action and received, coupled with a count on the policy for them alone, or on a count for money had in an action for the loss." It is alleged in the special count of the declaration, after setting out the policy in hæc verba, that all of the terms, conditions, and agreements contained in the policy had been fully performed and complied with by the insured during her lifetime. All of plaintiff's proofs were submitted with the sole view of supporting that count. Minnie Seaback testified, in substance, that all the premiums had been paid by the insured except the last two, which were paid by the witness, that the insured was her daughter, and that she died of pneumonia, and not of tuberculosis, and never had been attended by a doctor from the time she was born up to the issuing of the policy. It is said by appellant in his brief that the only defense interposed by appellee was that the policy never was a binding contract of insurance by reason of an alleged breach of the conditions son of an alleged breach of the conditions therein contained. That is true. Its evidence was, in substance, as testified by three physicians, including the family physician of the beneficiary, that the insured was treated for and died of tuberculosis, and that the beneficiary was so informed while the insured was being treated, that the insured was ex-ject is that appellee was paid the premiums amined in March, 1910, and found to be then [2-4] So far as this record shows, there was no waiver of the right by appellee to make the defense that the policy was void ab initio. There is no evidence that appellee ever refused to return to any one the premidemand on it for the premiums, and no proof ums paid, no proof that any one ever made that the premiums were not repaid by it. In fact, the only proof touching upon that sub on the policy and got notice for the first time by the proof of death in this case that the deceased had pulmonary consumption or tuberculosis when the policy was issued, and had had it, and had been treated for it, several months prior thereto, by a physician. The most that appellant could claim from the evidence is that appellee, after receiving that knowledge, remained silent, paid nothing on the policy or on account of premiums paid, and has done nothing concerning said loss except to defend this suit. The burden of suffering from tuberculosis, and that the insured and the beneficiary were then so informed, and that said disease continued up to the death of the insured. Propositions of law were submitted to the court by both parties bearing solely on the issues on the special count of the declaration. The circuit court found the issue of fact for the plaintiff and gave judgment against appellee. There is no evidence in the record indicating an intent on the part of the plaintiff to ask for judgment on the common counts for the pre-proving a waiver or an estoppel on the part miums paid on the policy. The Appellate Court found as facts to be incorporated in its judgment: "That the insured, prior to the date of the insurance policy in question, had been attended by a physician for a serious disease, and had pulmonary tuberculosis, and was not in sound health at the date of the issuance of this policy, and that appellant had no notice or knowledge of the matters of defense above stated until after the death of the insured." of appellee to make said defense was on appellant, and there is not a particle of proof in this record of such a waiver or estoppel. To constitute a waiver of such defense it must at least appear that appellee expressed an intention to relinquish such defense, or that it in its negotiations or transactions with the insured or beneficiary after knowledge of the forfeiture recognized the continued validity of the policy or did acts in rec-. [1] It is not questioned by appellant that ognition thereof. Such waiver need not necthis court is bound by the findings of fact by essarily be based upon any new agreement the Appellate Court, but it is urged here by or on estoppel, but there must be proof that the Appellate Court, but it is urged here by there was a waiver of the defense or that apappellant, and was also urged by him in the there was a waiver of the defense or that apAppellate Court, as appears from that court's pellee is estopped to make it. Parsons, Rich opinion, that although the policy in this & Co. v. Lane, 97 Minn. 98, 106 N. W. 485, 4 case was void ab initio because the insured L. R. A. (N. S.) 231, 7 Ann. Cas. 1144; Pence was not in sound health and had tuberculosis V. Langdon, 99 U. S. 578, 25 L. Ed. 420; when the policy was issued, and had been attended by a physician for that disease prior thereto, nevertheless appellee waived the making of such defense by not tendering to the beneficiary the premiums paid on the policy. The basis for this contention is found in the case of Dickerson v. Northwestern Mutual Life Ins. Co., 200 Ill. 270, 65 N. E. Perin v. Parker, 126 Ill. 201, 18 N. E. 747, 2 L. R. A. 336, 9 Am. St. Rep. 571. It was inadvertently said in Dickerson v. Northwestern Mutual Life Ins. Co., supra: "Where the policy was never a valid one, but was void from the beginning, the company, in order to defend against its enforcement, must return the premiums and declare the policy void." The questions involved in that statement it must be regarded as mere dictum, and not permitted to be made for the first time in as an adjudication on those questions. this court. The judgment of the Appellate Court should therefore be, and it is, affirmed. Judgment affirmed. (274 Ill. 462) PEOPLE v. GORDON. (No. 9621.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. STATUTES 86 GENERAL OR SPECIAL LAW-ELECTION LAW-PENALTY. A city election law in force in cities, etc., only by vote of the electors thereof, adopted by the voters of Chicago in 1885, containing a manfore election day to be qualified to vote, and prodatory requirement that a voter must register be [5] The only case brought to our notice, and the only one sustaining the position of appellant, so far as we know, is the case of Metropolitan Life Ins. Co. v. Moore, 117 Ky. 651, 79 S. W. 219. In Parsons, Rich & Co. v. Lane, supra, it was held that, when a policy of insurance never attaches and no risk is assumed, the insured may recover back the premiums unless he has been guilty of fraud or the contract is illegal, and he is in pari delicto, but that the insurer is not obliged to return or offer to return the premiums which have been paid voluntarily before notice of the fact that the policy is not in force, as a condition precedent to avail-viding for preliminary registration and canvass, ing itself of its defense to the action on the policy. The weight of authority and reason support the conclusion of the court in that decision. The insurance company may have a defense on the policy and against the payment of the premiums, too; and it is against reason to hold that an insurance company must pay premiums it may owe one party, however just, in order that it may defend a claim or a suit by another and different party, and where it has done nothing to waive its defense or to estop it to defend against such claim or suit. [6] The insured in this case, if any one, would have been entitled to the premiums paid by her if the policy had been declared void in her lifetime because of said condi and making various acts interfering with proper [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 96; Dec. Dig. 86.] 2. STATUTES 64(2) — PARTIAL INVALIDITY -OFFENSES-PENALTY. canvass of the ballots, would render the law itself without force, since of all parts of a law the most effectual is the vindicatory part. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 59, 195; Dec. Dig. 64(2).] tions being broken, and on a declaration of appellee, after her death, that the policy was void for conditions broken, her administrator, and not the beneficiary or her administrator, The invalidity of the provisions of City Elecwas the proper party to demand and sue tion Law, art. 6, § 6, as to penalties for fraudufor such premiums not returned. Thomp-lently changing or altering any ballot during the son v. Travelers' Ins. Co., 11 N. D. 274, 91 N. W. 75. So far as the record shows, no administrator for the insured had been appointed, and it does not, therefore, appear that there was any one legally entitled to the premiums paid by the insured to whom appellee could tender or repay such premiums. The conditions broken by the insured were valid and binding on her, and that is not denied by appellant, and under the findings of the Appellate Court, which are not challenged by appellant, appellee's defense to the suit on the policy is completely estab-calities. lished. [7] Minnie Seaback was not entitled to a judgment on the common counts for the premiums paid by the insured for reasons already stated in this opinion. She was not entitled to a judgment for the 20 cents paid by herself: (1) Because it does not appear from the record that the money actually paid by her was her own, and not the money of the insured and paid for the insured; and (2) it clearly appears from the record that no claim for judgment was made for such premiums in either the circuit court or the Appellate Court. Such a claim will not be 3. STATUTES 77(2) — GENERAL OR LOCAL STATUTES-ELECTION LAW-LOCALITY. The City Election Law, providing for registration, imposing various penalties, and providing that it shall be in force in cities, etc., only by vote of the electors, is not local or special because of its application only to the localities which adopt it, and not to the entire state, where it operates alike upon all within such given lo [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 80, 81; Dec. Dig. 77(2).1 4. STATUTES 73(1)—"GENERAL LAW." A law may be general, and yet be operative in a single place, and it is not requisite that it should be applicable to every person or every city in the state; and an act which is general in its nature and uniform in its operation upon all persons coming within its scope is a "general law," not because it embraces all of the governed, but because it may embrace all when they are similarly situated and come within its provisions. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 73; Dec. Dig. 73(1). For other definitions, see Words and Phrases, First and Second Series, General Law.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. CONSTITUTIONAL LAW 253 DUE PRO-[ Joseph Gordon was convicted of fraudu CESS OF LAW-ELECTION LAW-TERRITORY. lently changing and altering an official balThe constitutional provision as to due pro- lot during the canvass of ballots in a precess of law only requires that laws, including election laws, limited to the territory within cinct of a ward of the city of Chicago, at which they are operative shall be general in their a general election held November 5, 1912. application within that territory; and a state His motions for new trial and arrest of may prescribe different registration laws, and punish an act which is not punishable if done in judgment were overruled, and he sues out another district or locality. a writ of error. Affirmed. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 732-735; Dec. Dig. 253.] 6. CONSTITUTIONAL LAW 251-"DUE PRO CESS OF LAW." Louis Greenberg, of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Arthur R. Roy, Asst. Atty. Gen., and John E. Northup, of Chicago, for the People. The "due process of law" guaranteed by the Fourteenth Amendment means the equal protection of the laws; that is, security by laws oper- CARTER, J. The plaintiff in error was ating on all alike, and not subjecting the indi-indicted, tried, and convicted in the criminal vidual to the arbitrary exercise of the laws of the government, unrestrained by the established court of Cook county for fraudulently changprinciples of private right and distributive jus- ing and altering an official ballot during the tice. canvass of ballots in the sixteenth precinct of the eighteenth ward of the city of Chicago, at the general election held November 5, 1912. Motions for new trial and in arrest of judgment were overruled, and judgment was entered on the verdict. This writ of error is sued out to review that judgment. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. 251. For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.] 7. CONSTITUTIONAL LAW 211-EQUAL PROTECTION OF THE LAWS-CLASS LEGISLATION. While, under the guaranty of the equal protection laws, class legislation is prohibited by the federal Constitution, there is no prohibition against a reasonable classification of persons and things for legislation, but such classification must not be capricious or arbitrary, and must be reasonable and natural, and based upon some natural principle of public policy. [Ed. Note.-For other cases, see Constitutional Fourteenth Amendment to the federal ConLaw, Cent. Dig. § 678; Dec. Dig. 211.] 8. CONSTITUTIONAL LAW 70(2) - JUDICIAL FUNCTIONS-EQUAL PROTECTION. The question of classification is primarily for the state Legislature, and only becomes a judicial question when the legislative action is clearly unreasonable. No bill of exceptions is found in the record, and the only error urged as ground for reversal is that the section of the statute under which the court sentenced plaintiff in error to the penitentiary is void, as in contravention of the state Constitution and of the stitution. Counsel differ as to the section of the City Election Law under which plaintiff in error was indicted; his counsel insisting that it was under section 12 of article 6, while counsel for the state insist that it was under section 6 of that article. In our judg[Ed. Note.-For other cases, see Constitutional ment the indictment is based on said section Law, Cent. Dig. § 130; Dec. Dig. 70(2).] 6, but it is immaterial whether it was under 9. CONSTITUTIONAL LAW 48 - CONSTRUC-section 6 or section 12, for, if one section is TION OF STATUTES-CLASS LEGISLATION. held constitutional, we see no reason why All reasonable doubts are to be resolved in the other, for like reasons, should not also favor of upholding the validity of legislation es- be so held. tablishing a classification. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. 48; Statutes, Cent. Dig. § 56.] Where the City Election Law, in force in the city of Chicago after adoption by its electors in 1885, differing in respect to the penalties provided by article 6, § 6, from those in the General Election Law (Hurd's Rev. St. 1915-16, c. 46) 82, has been understood by those charged with its enforcement to be constitutional, and where a holding of its invalidity would practically nullify every effort made in the state for that time to promote the purity of elections and to protect every voter in that city in his right to vote, and would overthrow a long line of decisions and unsettle the confidence of the people in the stability and justice of the laws, the doctrine of stare decisis should be adhered to. [1, 2] The City Election Law provides that it shall be in force in cities, villages, and incorporated towns only by vote of the electors in the manner provided by the act. It was adopted by the voters of the city of Chicago in 1885, and has been in force in that city since that year. Section 6 of article 6 of said City Election Law provides that if any judge of election or other officer or person shall fraudulently, during the canvassing of the ballots, change or alter any ballot, he shall be punished by imprisonment in the penitentiary for not less than one nor more than five years. Hurd's Stat. 1916, p. 1171. The only provision of the General Election Law as to punishment for alteration of a ballot is section 82, which declares that whoever [Ed. Note.-For other cases, see Courts, Cent. changes a ballot, with intent to deprive an Dig. §§ 311, 312; Dec. Dig. 89.] elector of voting for such person as he inDunn, Cartwright, and Duncan, JJ., dissent- tended, shall be fined not exceeding $1,000. ing. or be imprisoned in the county jail not exError to Criminal Court, Cook County; ceeding one year, or both. Hurd's Stat. 1916, Richard E. Burke, Judge. p. 1119. It is therefore earnestly insisted Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the City Election Law is special legisla- | of appointing the judges and clerks are in tion, arbitrary and unreasonable, and there- no wise similar, continued (116 Ill. 619, 8 fore unconstitutional, under both the state N. E. 789, 56 Am. Rep. 793): and federal Constitutions. The City Election Law was held constitutional in People v. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793. A reading of the majority and dissenting opinions in that case demonstrates clearly that practically every question now urged against the constitutionality of the law as to its being special legislation, arbitrary and unreasonable, in its provisions, was raised and considered by the court in that case. The briefs in that case urged its unconstitutionality on the very ground urged here-that is, that it provided punishments for the same or similar acts different from those provided by the General Election Law. The opinion of the court in that case held that the act was valid, and not in contravention of any constitutional provision, and that it was not a local or special law, within the meaning of the Constitution, saying (116 Ill. 597, 5 N. E. 599, 56 Am. Rep. 793): "Whether laws are general or not does not depend upon the number of those within the scope of their operation. They are general, 'not because they operate upon every person in the state, for they do not, but because every person, who is brought within the relations and circumstances provided for, is affected by the laws.' Nor is it necessary, in order to make a statute general, that it should be equally applicable to all parts of the state. It is sufficient if it extends to all persons doing or omitting to do an act within the territorial limits described in the statute.' People v. Wright, 70 Ill. 388; People v. Cooper, 83 Ill. 585. This Election Law is not local or special because of the limited number of cities, towns, and villages which may have adopted it. It may rather be said of it that it is general, because of the possibility that all the cities, towns, and villages in the state may accept its provisions, if they choose." That the court then had in mind these very differences in punishment between the City Election Law and the General Election Law for the same acts is obvious, not only from what we have just quoted, which necessarily bears on the question here involved, but from the entire discussion in the opinion of the court. The conclusion that the opinion intended to pass directly on the questions we are considering is rendered absolutely certain, if not so before, by considering the court's opinion in connection with the opinion of the minority, for the dissenting opinion time and again called attention to the principles involved in the arguments here urged upon us, and particularly referred to the very sections of the statute now under consideration as a reason for holding the act to be special legislation. The dissenting opinion, after enumerating numerous differences between the City Election Law and the General Election Law, calling attention, among other things, to the fact that the polls under these two laws open and close at different hours, that the registration provisions differ in practically every respect, and that the methods "Under the general law, the offenses of illegal voting, bribery, etc., are punishable by fine or imprisonment in the county jail; by this act, these offenses are punishable by confinement in the penitentiary. Under the general law, the violation by judges of election of certain prescribed duties is punishable by fine or imprisonment in are punishable by confinement in the penitenthe county jail; by this act, the same offenses tiary. There are still other matters of dissimilarity between the provisions of the general law and those of this act, equally as marked; but these are sufficient to show that this act is in no sense supplementary to the general law, and that it and the general law are not applicable to different conditions and states of fact, but that they contain radically different systems of law upon the same subject-matter." Again, on page 620 of 116 Ill., on page 789 of 8- N. E. (56 Am. Rep. 793), the dissenting opinion says: "I cannot believe that a law arbitrarily classifying the subject-matter of a law, and applying and enforcing different rules in conformity with such arbitrary classification, is general, or that it can be correctly denominated otherwise than 'local or special.' To justify classification the difference must be in the thing itself which forms the subject of legislation, and it must be substantial, and not simply fanciful." On page 621 of 116 Ill., on page 790 of 8 N. E. (56 Am. Rep. 793), we also find this in the dissent: illegal voting and malfeasance in office by judges "It is impossible to state a valid reason why of election are worse offenses in the city of Chicago or the town of Lake than they are in the village of Hyde Park, or, for that matter, in in the rural voting districts." Peoria, Quincy, Bloomington, or Springfield, or in the rural voting districts." Again, on page 627 of 116 Ill., on page 793 of 8 N. E. (56 Am. Rep. 793): "What can there possibly be, in the circumstances affecting it, to justify the distinction that, if a illegal vote be cast or an election officer be guilty of malfeasance in office in one voting shall be punished by confinement in the penitenprecinct in Cook county, the person so guilty tiary, and yet, if an illegal vote be cast or an election officer be guilty of the same malfeasance in office, under precisely the same conditions and circumstances and in precisely the same way, at an election on the same day for the same officers in another precinct in Cook county, he shall be punished only by fine, or by fine and imprisonment in the county jail?" It is unnecessary to quote at greater length from the dissenting opinion in order to emphasize the fact that practically its entire basis was the very sections of the law which are here urged as unconstitutional. If the reasons urged here and urged in the dissenting opinion in the Hoffman Case were upheld, it would nullify the force and effect of the entire Election Law. The fundamental principle of this act centers about the registration requirements. Under this act the requirements are mandatory that the voter must register before the day of election in order to be qualified to vote; under the general act no such requirement is made. Under the general act, while there are provisions for registration, a voter can vote, even though he is not registered before the day of, The case of People v. Hoffman, supra, is election. This act provides in detail for pre- one of the leading cases, not only in this liminary registration and for a canvass of state, but in the entire country, as to registhe district and the method of sending sus-tration laws, and as to the question of local pect notices prior to the day of election, in and special legislation with reference to order that only those who are legally en- election laws. It is so recognized in all juristitled to vote shall remain on the registration dictions and by all writers on the subject. books. Some two score or more different It has always been quoted with approval by acts that interfere with the proper registra- this court on these subjects, and perhaps tion of voters are made punishable by the more often quoted than any other decision of City Election Act, which are not specifically this court as to whether certain legislation covered or provided for under the General was local or special, and therefore unconstiRegistration Law. Numerous penalties for tutional. A few, only, of the cases where the the violation of its provisions, either by the principles of this decision have been sancjudges and clerks of election or by other per- tioned do we deem it necessary to refer to. sons, are provided in the City Election Law, which are in no way touched upon by the general law. The opinion of the court in the Hoffman Case discusses at length the various requirements of the act as to registra- 710): tion and holds them constitutional. In People v. Wanek, 241 Ill. 529, 89 N. E. 708, the registration provisions of this act and the general act were under consideration. The court said (241 Ill. 533, 89 N. E. "The first statute referred to was passed in 1885, and the subsequent statute was passed in 1887, since which time both statutes have been held constitutional and enforced. People v. Hoffman, 116 Ill. 587 [5 N. E. 596, 8 N. E. 788, 56 If the argument of counsel for plaintiff in error as to the invalidity of the section of the Election Law here involved were upheld, and if this section of the act were held un-Am. Rep. 793]; Wetherell v. Devine, 116 Ill. 631 constitutional because it provides a different [6 N. E. 24]; Snowball v. People, 147 Ill. 260 punishment for altering a ballot than is pro- committed to the view that the City Election [35 N. E. 538]. We think this court is therefore vided by the general act, by the same line of Law is constitutional. If we were at this late reasoning it follows that all the other pro- date to hold that the registration provision of visions of the City Election Law which re- the City Election Law was unconstitutional, in quire certain things to be done with refer- of the same political subdivision, as contended discriminating between voters of different parts ence to registration, and every provision for by appellant,** * then we would be forced a penalty different from that provided by the to hold that the City Election Law only applied General Registration Law or providing a pen-all elections where the election was not confined to city elections, and was unconstitutional as to alty where no penalty has been provided to the territorial limits where said law was in by the General Registration Law, must also force. ** * Our conclusion is that the City be held unconstitutional. Such a decision Election Law is constitutional in its registration would practically nullify the main features of the City Election Act. If the provisions In Bolles v. Prince, 250 Ill. 36, 38, 95 N. E. of the law as to penalties are invalid, the 40, 41, the court considered and construed law itself is without force. Blackstone says certain provisions of the City Election Law, that: "Of all the parts of a law the most effectual is the vindicatory, for it is but lost labor to say, 'Do this or avoid that,' unless we also declare, "This shall be the consequence of your noncompliance.' We must therefore observe that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws." 1 Blackstone's Com. (Sharswood's Ed.) *57. Hamilton, in the Federalist, in his paper No. 15 on Governmental Functions, states (page 143): "It is essential to the idea of a law that it be attended with a sanction, or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation." feature." and said: "The demurrer raised several constitutional ob jections to the City Election Act, most of which are not insisted upon here, and would, in any event, be unavailing in view of the decisions in People v. Hoffman, 116 Ill. 587 [5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793]; Wetherell v. Devine, 116 Ill. 631 [6 N. E. 24], and People v. Wanek, 241 Ill. 529 [89 N. E. 708]." While the opinion itself does not show the fact, the record in the case just quoted from does show that the demurrer raised the question as to the City Election Law being unconstitutional because it was local and special legislation. [3-5] It is argued that, even though the City Election Act might reasonably be held constitutional if it applied only to cities of a certain size, making the population of the Substantially all the numerous penalties cities the basis of the classification, it being found in the City Election Law are either conceded by this argument that experience different from the penalties that apply to has shown that stricter rules and regulasimilar acts under the general law, or they tions are necessary for controlling elections are penalties for acts which are not men- in the larger cities and towns than in the tioned in the general law. It is inconceivable smaller ones, or in the rural districts, yet that this court would have held this law con- this law provides that it can be in force in stitutional without intending to hold the any city, village, or incorporated town that |