« ForrigeFortsett »
It is alleged in the special count of the "Where the policy is absolutely void from the declaration, after setting out the policy in beginning, the company cannot claim the right hæc verba, that all of the terms, conditions, to forfeit the premiums. In such case no pre
miums were ever earned, because at no time and agreements contained in the policy had had the company assumed any risk.” been fully performed and complied with by
That doctrine is abundantly supported by the insured during her lifetime. All of plaintiff's proofs were submitted with the sole other courts of last resort and apparently view of supporting that count. Minnie Sea- by the weight of authority on that subject, back testified, in substance, that all the with the proper limitations. The law is premiums had been paid by the insured ex fully stated in May on Insurance, $ 567, in
this language: cept the last two, which were paid by the witness, that the insured was her daughter, attaches, and there is no fraud on the part of
"If a policy be void ab initio or if risk never and that she died of pneumonia, and not of the insured, and the contract is not against law tuberculosis, and never had been attended by or good morals, he may recover back all the a doctor from the time she was born up to premiums he may have paid, either in an action the issuing of the policy. It is said by appel and received, coupled with a count on the policy
on for lant in his brief that the only defense inter- in an action for the loss." posed by appellee was that the policy never
(2-4) So far as this record shows, there was a binding contract of insurance by reason of an alleged breach of the conditions make the defense that the policy was void
no to therein contained. That is true. Its evidence make the defense that the policy was void was, in substance, as testified by three physi-lever refused to return to any one the premi
ab initio. There is no evidence that appellee cians, including the family physician of the beneficiary, that the insured was treated forums paid, no proof that any one ever made and died of tuberculosis, and that the bene- that the premiums were not repaid by it. In
demand on it for the premiums, and no proof ficiary was so informed while the insured fact, the only proof touching upon that subwas being treated, that the insured was ex-ject is that appellee was paid the premiums amined in March, 1910, and found to be then on the policy and got notice for the first time suffering from tuberculosis, and that the in- by the proof of death in this case that the desured and the beneficiary were then so in- ceased had pulmonary consumption or tuberformed, and that said disease continued up culosis when the policy was issued, and had to the death of the insured. Propositions of had it, and had been treated for it, several law were submitted to the court by both par- months prior thereto, by a physician: The ties bearing solely on the issues on the spe- most that appellant could claim from the cial count of the declaration. The circuit evidence is that appellee, after receiving that court found the issue of fact for the plaintiff knowledge, remained silent, paid nothing on and gave judgment against appellee. There the policy or on account of premiums paid, is no evidence in the record indicating an in- and has done nothing concerning said loss tent on the part of the plaintiff to ask for except to defend this suit. The burden of judgment on the common counts for the pre-proving a waiver or an estoppel on the part miums paid on the policy.
of appellee to make said defense was on apThe Appellate Court found as facts to be pellant, and there is not a particle of proof incorporated in its judgment:
in this record of such a waiver or estoppel. “That the insured, prior to the date of the in- To constitute a waiver of such defense it surance policy in question, had been attended must at least appear that appellee expressed by a physician for a serious disease, and had an intention to relinquish such defense, or pulmonary tuberculosis, and was not in sound health at the date of the issuance of this pol- | that it in its negotiations or transactions icy, and that appellant had no notice or knowl- with the insured or beneficiary after knowledge of the matters of defense above stated un-edge of the forfeiture recognized the contintil after the death of the insured."
ued validity of the policy or did acts in rec 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 appellant, 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 2 L. R. A. 336, 9 Am. St. Rep. 571.
Perin v. Parker, 126 Ill. 201, 18 N. E. 747, attended by a physician for that disease prior inadvertently said in Dickerson v. Norththereto, nevertheless appellee waived the western Mutual Life Ins. Co., supra: making of such defense by not tendering to “Where the policy was never a valid one, but the beneficiary the premiums paid on the was void from the beginning, the company, in policy. The basis for this contention is found order to defend against its enforcement, must rein the case of Dickerson v. Northwestern turn the premiums and declare the policy void.” Mutual Life Ins. Co., 200 Ill. 270, 65 N. E. The questions involved in that statement 694, in which this court said:
were not up for decision in that case, and
it must be regarded as mere dictum, and not as an adjudication on those questions.  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 availing 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.  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 conditions 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, was the proper party to demand and sue for such premiums not returned. Thompson 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 established.  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
permitted to be made for the first time in
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.)
Oct. 24, 1916.)
1. STATUTEs 3-86 — 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 mandatory requirement that a voter must register before election day to be qualified to vote, and providing for preliminary registration and canvass, and making various acts interfering with proper registration punishable, and by article 6, § 6 (Hurd's Rev. St. 1915–16, c. 46, § 260), providing that, if any judge of election or other person shall fraudulently, during the canvass of the ballots, change or alter any ballot, he shall be punishable by imprisonment in the penitentiary for not less than one nor more than five years, is not unconstitutional as a local or special act providing punishment for the same or similar acts different from those provided by the general election law, which does not make registration a requisite to voting or cover the offenses provided for under the City Election Law, and the only provision of which as to punishment for alteration of ballots is section 82, declaring that whoever changes a ballot with intent to deprive an elector from voting for such person as he intended shall be fined not exceeding $1,000, or imprisoned in the county jail not exceeding one year, or both.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 96; Dec. Dig. 6-86.]
2. STATUTEs 3-64(2) — PARTIAL INVALIDITY —OFFENSES-PENALTY. The invalidity of the provisions of City Election Law, art. 6, § 6, as to penalties for fraudulently changing or altering any ballot during the 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. 3-64(2).]
3. STATUTES 6-577(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 localities.
[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 80, 81; Dec. Dig. 6-77(2).]
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. 3~73(1).
For other definitions, see Words and Phrases, First and Second Series, General Law.]
(Supreme Court of Illinois.
& 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 frauduCESS OF LAW--ELECTION LAW-TERRITORY. The constitutional provision as to due pro- lot during the canvass of ballots in a pre
lently changing and altering an official balcess 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
Louis Greenberg, of Chicago, for plaintiff Law, Cent. Dig. 88 732–735; Dec. Dig. Om 253.] in error. P. J. Lucey, Atty. Gen., Arthur R. 6. CONSTITUTIONAL LAW Ow251 — “DUE PRO- Roy, Asst. Atty. Gen., and John E. Northup, CESS OF LAW.”
The "due process of law" guaranteed by the of Chicago, for the People. 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 sụbjecting 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 [Ed. Note.- For other cases, see Constitutional of the eighteenth ward of the city of ChiLaw, Cent. Dig. 88 726, 727, 732; Dec. Dig. En cago, at the general election held November 251.
For other definitions, see Words and Phrases, 5, 1912. Motions for new trial and in arrest First and Second Series, Due Process of Law.] of judgment were overruled, and judgment 7. CONSTITUTIONAL LAW 211-EQUAL PRO- was entered on the verdict. This writ of TECTION OF THE LAWS-CLASS LEGISLATION. error is sued out to review that judgment. While, under the guaranty of the equal pro
No bill of exceptions is found in the record, tection laws, class legislation is prohibited by the federal Constitution, there is no prohibition and the only error urged as ground for reagainst a reasonable classification of persons and versal is that the section of the statute under things for legislation, but such classification which the court sentenced plaintiff in error must not be capricious or arbitrary, and must be to the penitentiary is void, as in contravenreasonable and natural, and based upon some tion of the state Constitution and of the natural principle of public policy.
[Ed. Note. For other cases, see Constitutional Fourteenth Amendment to the federal ConLaw, Cent. Dig. $ 678; Dec. Dig. 211.) stitution. Counsel differ as to the section of 8. CONSTITUTIONAL LAW 70(2) – JUDICIAL the City Election Law under which plaintiff FUNCTIONS-EQUAL PROTECTION.
in error was indicted; his counsel insisting The question of classification is primarily that it was under section 12 of article 6, for the state Legislature, and only becomes a jụ. while counsel for the state insist that it was dicial question when the legislative action is clearly unreasonable.
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 Om 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
[1, 2] The City Election Law provides that Law, Cent. Dig. & 46; Dec. Dig. 48; Stat- it shall be in force in cities, villages, and inutes, Cent. Dig. $ 56.]
corporated towns only by vote of the electors 10. COURTS Om89 – RULES OF DECISIONS
in the manner provided by the act. It was STARE DECISIS-ELECTION LAW.
adopted by the voters of the city of Chicago Where the City Election Law, in force in the in 1885, and has been in force in that city city of Chicago after adoption by its electors in since that year. Section 6 of article 6 of 1885, differing in respect to the penalties provided by article 6, § 6, from those in the General said City Election Law provides that if any Election Law (Hurd's Rev. St. 1915-16, c. 46) 8 judge of election or other officer or person 82, has been understood by those charged with shall fraudulently, during the canvassing of its enforcement to be constitutional, and where the ballots, change or alter any ballot, he a holding of its invalidity would practically nullify every effort made in the state for that time shall be punished by imprisonment in the to promote the purity of elections and to pro- penitentiary for not less than one nor more tect every voter in that city in his right to vote, than five years. Hurd's Stat. 1916, p. 1171. and would overthrow a long line of decisions and unsettle the confidence of the people in the The only provision of the General Election stability and justice of the laws, the doctrine of Law as to punishment for alteration of a balstare decisis should be adhered to.
lot is section 82, which declares that whoever [Ed. Note.--For other cases, see Courts, Cent. changes a ballot, with intent to deprive an Dig. 88 311, 312; Dec. Dig. Om 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
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.
“Under the general law, the offenses of illegal The City Election Law was held constitu- voting, bribery, etc., are punishable by fine or imtional in People v. Hoffman, 116 Ill. 587, 5 Offenses are punishable by confinement in the
prisonment in the county jail; by this act, these N. E. 596, 8 N. E. 788, 56 Am. Rep. 793. penitentiary. Under the general law, the violaA reading of the majority and dissenting tion by judges of election of certain prescribed opinions in that case demonstrates clearly duties is punishable by fine or imprisonment in
the county jail; by this act, the same offenses that practically every question now urged are punishable' by confinement in the penitenagainst the constitutionality of the law as tiary. There are still other matters of dissimito its being special legislation, arbitrary and larity between the provisions of the general law unreasonable, in its provisions, was raised and those of this act, equally as marked; but and considered by the court in that case. The no sense supplementary to the general law, and
these are sufficient to show that this act is in briefs in that case urged its unconstitution that it and the general law are not applicable to ality on the very ground urged here that different conditions and states of fact, but that is, that it provided punishments for the they contain radically different systems of law
upon the same subject-matter." same or similar acts different from those provided by the General Election Law.
Again, on page 620 of 116 Ill., on page 789
The opinion of the court in that case held that of 8. N. E. (56 Am. Rep. 793), the dissenting
opinion says: the act was valid, and not in contravention
"I cannot believe that a law arbitrarily clasof any constitutional provision, and that it sifying the subject-matter of a law, and applying was not a local or special law, within the and enforcing different rules in conformity with meaning of the Constitution, saying (116 111. such arbitrary classification, is general, or that 597, 5 N. E. 599, 56 Am. Rep. 793):
it can be correctly denominated otherwise than
'local or special.' To justify classification the “Whether laws are general or not does not de- difference must be in the thing itself which forms pend upon the number of those within the scope the subject of legislation, and it must be substanof their operation. They are general, ‘not be- tial, and not simply fanciful.” cause they operate upon every person in the state, for they do not, but because every person,
On page 621 of 116 Ill., on page 790 of 8 who is brought within the relations and circum- N. E. (56 Am. Rep. 793), we also find this in stances provided for, is affected by the laws.' the dissent: Nor is it necessary, in order to make a statute general, that it should be equally applicable to illegal voting and malfeasance in office by judges
"It is impossible to state a valid reason why all parts of the state. It is sufficient if it ex- of election are worse offenses in the city of Chiact within the territorial limits
described in the cago or the town of Lake than they are in the act within the territorial limits described in the village of Hyde Park, or, for that matter, in v. Cooper, 83 11. 585. This Election Law is not Peoria,
Quincy, Bloomington, or Springfield, or local or special because of the limited number of in the rural voting districts.” cities, towns, and villages which may have adopt- Again, on page 627 of 116 Ill., on page 793 ed it. It may rather be said of it that it is gen- of 8 N. E. (56 Am. Rep. 793): eral, because of the possibility that all the cities, towns, and villages in the state may accept its stances affecting it, to justify the distinction
"What can there possibly be, in the circumprovisions, if they choose."
that, if a illegal vote be cast or an election officer That the court then had in mind these very be guilty of malfeasance in office in one voting differences in punishment between the City shall be punished by confinement in the peniten
precinct in Cook county, the person so guilty Election Law and the General Election Law tiary, and yet, if an illegal vote be cast or an for the same acts is obvious, not only from election officer be guilty of the same malfeasance what we have just quoted, which necessarily in office, under precisely the same conditions and bears on the question here involved, but from circumstances and in precisely the same way, at the entire discussion in the opinion of the in another precinct in Cook county, he shall be court. The conclusion that the opinion in- punished only by fine, or by fine and imprisontended to pass directly on the questions we ment in the county jail ?” are considering is rendered absolutely certain, It is unnecessary to quote at greater length if not so before, by considering the court's from the dissenting opinion in order to emopinion in connection with the opinion of the phasize the fact that practically its entire minority, for the dissenting opinion time and basis was the very sections of the law which again called attention to the principles in- are here urged as unconstitutional. If the volved in the arguments here urged upon us, reasons urged here and urged in the dissentand particularly referred to the very sec-ing opinion in the Hoffman Case were upheld, tions of the statute now under consideration it would nullify the force and effect of the enas a reason for holding the act to be special tire Election Law. The fundamental prinlegislation. The dissenting opinion, after ciple of this act centers about the registraenumerating numerous differences between tion requirements. Under this act the rethe City Election Law and the General Elec- quirements are mandatory that the voter tion Law, calling attention, among other must register before the day of election in things, to the fact that the polls under these order to be qualified to vote; under the gentwo laws open and close at different hours, eral act no such requirement is made. Unthat the registration provisions differ in prac- der the general act, while there are provitically every respect, and that the methods sions for registration, a voter can vote, even
though he is not registered before the day of The case of People v. Hoffman, supra, is
“The first statute referred to was passed in If the argument of counsel for plaintiff in 1885, and the subsequent statute was passed in error as to the invalidity of the section of 1887, since which time both statutes have been the Election Law here involved were upheld, man, 116 111. 587 [5 N. E. 596, & N. E. 788, 56
held constitutional and enforced. People v. Hoffand if this section of the act were held un- Am. Rep. 793]; Wetherell v. Devine, 116 111. 631 constitutional because it provides a different [6 N. E. 24]; Snowball v. People, '147 111. 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- discriminating between voters of different parts
of the same political subdivision, as contended 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- to city elections, and was unconstitutional as to
all elections where the election was not confined 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
feature.” 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:
and said: "Of all the parts of a law the most effectual is
"The demurrer raised several constitutional obthe vindicatory, for it is but lost labor to say, Ijections to the City Election Act, most of which 'Do this or avoid that, unless we also declare: are not insisted upon here, and would, in any “This shall be the consequence of your noncompli- event, be unavailing in view of the decisions in ance.' We must therefore observe that the main People v. Hoffman,
116 Ill. 587 [5 N. E. 596, 8 strength and force of a law consists in the pen- N. E. 788,
56 Am. Rep. 793); Wetherell v. Dealty annexed to it. Herein is to be found the vine, 116 Ill. 631 [6 N. E. 24], and People v. principal obligation of human laws." 1 Black-Wanek, 241 Ill. 529 [89 N. E. 708].” stone's Com. (Sharswood's Ed.) *57.
While the opinion itself does not show the Hamilton, in the Federalist, in his paper fact, the record in the case just quoted from No. 15 on Governmental Functions, states does show that the demurrer raised the ques(page 143):
tion as to the City Election Law being un"It is essential to the idea of a law that it be constitutional because it was local and speattended with a sanction, or, in other words, a cial legislation. penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the reso
(3-5] It is argued that, even though the lutions or commands which pretend to be laws City Election Act might reasonably be held will, in fact, amount to nothing more than ad constitutional if it applied only to cities of a vice or recommendation."
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 penalty features of the act constitutional. may adopt it by vote of the people, and that