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The judgment of the Appellate Court is and Clarence E. Nelson, both of Chicago, of affirmed. counsel), for the People.

Judgment affirmed.

STONE, J. Plaintiff in error, William

HEARD, J., took no part in this decision. Hanley, and Andrew Stahle and Harry AnSTONE, J., dissents.

(317 Ill. 39)

PEOPLE v. HANLEY. (Supreme Court of Illinois.

(No. 16550.)

April 24, 1925.)

1. Criminal law 683(1) Rebuttal testimony that accused was seen on night after robbery with confederate, and that he had gun, competent.

In prosecution for robbery with a gun, where alleged confederates testified that they were not together on night of robbery or succeeding night, and that plaintiff in error did not have a gun, rebuttal that they were seen together on night after the robbery, and that plaintiff in error had a gun similar to one introduced at trial, held competent.

2. Criminal law 424 (2)-Statements of alleged confederate in presence of accused and officers not competent against accused.

derson were indicted for the robbery of Albert Novak with a gun. A separate trial was granted to Anderson, and Hanley and Stahle were found guilty of robbery with a gun, in manner and form as charged in the indictment. Hanley and Stahle were found to be of the ages of 20 and 19 years, respectively. Both were sentenced to the state reformatory at Pontiac, and Hanley brings the cause here for review.

Testimony of the complaining witness, Albert Novak, and of Leo Kupferschmidt, was to the effect that on the night of July 13, 1923, they were driving along the streets of Chicago in an automobile. On Cortland street they passed a car near the curb with a number of young men standing around it. One of them stepped out and held up his hand. Novak and Kupferschmidt drew near the curb and slowed down. Plaintiff in error jumped on the runningboard of the car and pointed a gun at the witnesses and made them get out of the car, afterwards or.

In prosecution for robbery, where plaintiff in error and two confederates were arrested, confession of one, made in presence of plain-dering them back into its rear seat. Two tiff in error and police officers, held not competent against plaintiff in error, who merely admonished the third to keep still and said that it would take 12 men to try him, there being no implication of acquiescence where silence might be induced through fear, doubt of rights, instructions by attorney, or reasonable belief that security would best be promoted by silence.

other young men got into the car with them. They took $3 from Kupferschmidt and $8 from Novak and told them to get out of the car and they would later telephone them as to where the car was. Both Novak and Kupferschmidt identified plaintiff in error as being one of the robbers, and testified that he had a gun in his hand, which he held on them. They both testified that they later 3. Criminal law 424 (2)-Confession admis-recognized him at the police station. Their sible against confederate who acknowledged identification was positive and unequivocal. it.

In prosecution, where three alleged robbers were arrested, confession of one, made in presence of police and the others, held competent against the confederate who said, "We might as well tell the whole thing, as the Swede has squawked."

4. Criminal law 1169(2)-Conviction not reversed for incompetent evidence, where record clearly shows guilt without that evidence.

In prosecution for robbery, where guilt was so clearly shown without admission of incompetent confession of confederate that verdict could not have been different, conviction will

be sustained.

Anderson, who was jointly indicted with plaintiff in error, but not then on trial, testified that he was one of four men who held up Novak and Kupferschmidt. He told substantially the same story as to the holdup. He testified that he, plaintiff in error, Stahle and a young man named McMahon were in the holdup. The last named was not indicted. Anderson also testified that he was present at a conversation between the police, Stahle and plaintiff in error; that witness there told the story of the holdup; that Stahle said they might as well tell everything as witness had "squawked," but that plaintiff in error said to keep still-that he wasn't going to say anything. This conver.

Error to Criminal Court, Cook County; sation was also testified to by Jensen, a Frederic R. De Young, Judge.

William Hanley was convicted for robbery with a gun, and he brings error. Affirmed. O'Brien, Prystalski & Owen, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James |

member of the police force. Anderson testified that Novak and Kupferschmidt were present when this conversation was had be

tween Stahle and the police, in the presence of plaintiff in error. In this he is contradicted, however, by Jensen, Novak, and Kupferschmidt.

The defendants took the stand and testiB. Searcy, of Springfield (Edward E. Wilson | fied that they were not in that neighborhood

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(147 N.E.)

at the time of the robbery. Stahle testified | against his codefendant unless made in the that he was not in the company of plaintiff presence of the latter under the circumin error on the night of the 13th and 14th, stances here referred to. The only stateand the latter testified to a like effect, also ments made by plaintiff in error were the that he did not have a gun and never carried one admonishing Stahle to keep still, and one. On rebuttal, the people called Joseph one in answer to a question put to him as to Oesterle, who testified that shortly after 12 whether or not Anderson's statement was o'clock on the morning of July 14 he saw true, plaintiff in error saying, "It will take plaintiff in error and Stahle together, and twelve men to try me." These statements that plaintiff in error had a gun similar to rendered Anderson's statement incompetent the one introduced in evidence on the trial. as to him. It was, however, competent as [1] The only ground upon which reversal against Stahle, who, according to the testiis sought in this case is the introduction of mony of Anderson and the police officer, said, incompetent testimony, it being urged that it "We might as well tell the whole thing, as was incompetent to admit the statement of the Swede has squawked." This record, Anderson, made in the presence of plaintiff however, shows the guilt of both defendants in error when the latter said he would say so clearly that it cannot be said that withnothing, and that his statement was not an out this statement of Anderson the verdict implied admission or confession. It is also might have been different as to plaintiff in contended that Oesterle's testimony was in- error. The identification of plaintiff in ercompetent, as it tended to establish a sepa- ror by Novak and Kupferschmidt is positive. rate and distinct crime. Concerning the lat- There is nothing in the record tending in ter objection, it is sufficient to say that both any way to impeach their testimony except Stahle and plaintiff in error having testified the statement of plaintiff in error that he that they were not together on the night of was not there. In this he is not in any way July 13 and 14, and the latter having testi- corroborated, and offers no witnesses to supfied that he never carried a gun, the testi- port his statement of alibi. mony of Oesterle was competent both for the purpose of showing that the two defendants were together on the night in question and as contradicting plaintiff in error's statement that he never carried a gun.

The judgment of the criminal court of
Cook county is affirmed.
Judgment affirmed.

DE YOUNG, J., took no part in this decision.

(317 Ill. 25) TAYLORVILLE SANITARY DIST. v. WINSLOW. (No. 16337.)

(Supreme Court of Illinois. April 24, 1925.) 1. Constitutional law 26-State Constitution is not a grant, but a limitation, on legislative power of General Assembly.

State Constitution is not a grant, but a limitation, on legislative power of General Assembly.

2. Constitutional law

63(1)—General Assembly may provide for preservation of health as proper exercise of police power.

[2-4] It is said that testimony concerning the statement of Anderson, made in the presence of police officers and plaintiff in error, is incompetent. The rule is that, where statements are made in the presence of the accused under such circumstances that he is not in a position to deny them, or if his silence is of a character which does not justify the inference that he should have spoken, or if he is restrained in any way from speaking by fear, doubt of his rights, instruction by his attorney, or reasonable belief that his security would be best promoted by silence, his silence does not amount to an admission of the truth of the statements made, and such statements are not admissible as against the accused. Slattery v. People, 76 Ill. 217; People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, Ann. Cas. 1915A, 1171; People v. Seff, 296 Ill. 120, 129 N. E. 533. An acquiescence may be implied from the conduct of a party charged with crime, in remaining silent when he is implicated by statements of third persons made in his presence, under circumstances which allow an opportunity to him to speak in reply, and where a man similarly situated would ordinarily deny the statements imputing guilt. Ackerson v. People, 124 Ill. 563, 16 N. E. 847; Watt v. People, 126 Ill. 9, 18 N. E. 340, 1 L. R. A. 403; People v. Hagenow, 236 Ill. 514, 86 N. E. 370; People v. Nitti, 312 Ill. 73, 143 N. E. 448. A confession of one defendant cannot be admitted districts.

General Assembly, by direct enactment or by delegated power, may provide for preservation of health as proper exercise of police power.

3. Health 4-Statute authorizing sanitary district to construct improvements by special assessment not violative of constitutional provisions for local improvements.

Act June 22, 1917 (Laws 1917, p. 396) § 19, as added by Laws 1923, p. 340, authorizing sanitary districts to construct local improvements by special assessments, does not violate Const. art. 9, § 9, authorizing General Assembly to "vest the corporate authorities of cities, towns, and villages with power to make local improvements by special assessment"; such enumeration being not an implied exclusion of sanitary

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 147 N.E.-26

4. Health 4-Statute authorizing sanitary districts to construct improvements by special assessment not violative of constitutional provision for drains.

powers heretofore granted to such sanitary district by special assessment or by general taxation, or partly by special assessment and partly by general taxation, as they shall by ordiIt shall constitute no obnance prescribe.

Act June 22, 1917 (Laws 1917, p. 396) § 19 as added by Laws 1923, p. 340, authorizing jection to any special assessment that the imsanitary districts to construct local improve-provement for which the same is levied is partly ments by special assessments, does not violate outside the limits of such sanitary district, but Const. art. 4, § 31, as amended in 1878, author- no special assessments shall be made upon izing General Assembly to pass laws permit- property situated outside of such sanitary disting landowners to construct drains, ditches, trict, and in no case shall any property be asand levees for agricultural, sanitary, or mining sessed more than it will be benefited by the impurposes, and to provide for organization of provement for which the assessment is levied. drainage districts, and vest corporate authori- The proceedings for making, levying, collecting ties thereof with power to construct improve- and enforcing of any special assessment levied hereunder, the letting of contracts, performments by special assessments. ance of the work and all other matters pertain

Appeal from Christian County Court; C. J. ing to the construction and making of the imVogelsang, Judge.

Proceedings by the Taylorville Sanitary District for levy of a special assessment to pay for local improvement. From a county court judgment confirming said assessment, and overruling objections of William Winslow, he appeals. Affirmed.

W. S. Greer, of Taylorville, for appellant. H. B. Hershey and J. E. Hogan, both of Taylorville, for appellee.

provement shall be the same as nearly as may
be as is prescribed in an act entitled 'An act
concerning local improvements,' approved June
14, 1897, and amendments thereto. Whenever
in said act the words 'city council' or the words
'board of local improvements' are used the
same shall apply to the board of trustees con-
stituted by this act, and the word 'mayor' or
'president of the board of local improvements'
shall apply to the president of the board of
trustees constituted by this act, and the words
applying to the city or its officers in that act
shall be held to apply to the district created un-
der this act and its officers."

Appellant challenges the right of this dis

ground that section 19 is unconstitutional.

[1] At the outset of the consideration of the constitutional question involved in this case, it will be remembered that it has been frequently stated by this court that the Constitution of the state is not to be regarded as a grant of power to the legislative department, but rather as a limitation upon its power.

STONE, J. The question involved in this case is whether a sanitary district, organized under and by virtue of an act entitled "An act to create sanitary districts and to pro-trict to levy a special assessment on the vide for sewage disposal," approved June 22, 1917 (Laws 1917, p. 396), in force July 1, 1917, has authority to construct a local improvement by special assessment, as provided by section 19 of the act as amended in 1923. (Laws 1923, p. 340). The Taylorville sanitary district is composed of territory partly within and partly without the city of TaylorAll legislative power is vested in ville. On August 6, 1924, the board of trustees of that district passed an ordinance pro- the General Assembly, subject to the restricviding for the construction of a combined tions contained in the Constitution. Every storm-water and sanitary sewer, to be laid in subject within the scope of civil government, which is not withdrawn from the authority of Pine street, in the city of Taylorville, for a distance of 670 feet. The ordinance provided the Legislature, may be acted upon by it. for the levy of a special assessment against Sawyer v. City of Alton, 3 Scam. 127; Peocertain property, among which are the lots ple v. Salomon, 51 Ill. 37; Ruggles v. Peoowned by appellant in this case. Appellant ple, 91 Ill. 256; Harris v. Board of Superfiled objections to the confirmation of the as- visors, 105 Ill. 445, 44 Am. Rep. 808; Wilson sessment. His objections were overruled, v. Board of Trustees, 133 Ill. 443, 27 N. E. and judgment was entered confirming the as-203; Marshall v. Upper Cache Drainage Dissessment. He brings the case here for re-trict, 313 Ill. 11, 144 N. E. 321.

view.

This ordinance was passed under the authority granted to sanitary districts by section 19 of the Sanitary District and Sewage Disposal Act of 1917 as amended. That section is as follows:

"The board of trustees shall have the power to build and construct and to defray the costs and expenses of the construction of drains, sewers, or laterals, or drains and sewers and laterals and other necessary adjuncts thereto, including pumps and pumping stations, made by it in the execution or in furtherance of the

Coming, then, to the question as to what, if any, limitations have been placed by the Constitution upon the right of the Legislature to authorize sanitary districts, such as the one involved here, to construct local improvements and pay for the same by special assessments, as provided by section 19 of the act, counsel for appellant contends that section 9 of article 9 and section 31 of article 4 of the Constitution prohibit the delegation of such power to sanitary districts organized under the act in question; that while the latter section authorizes the General Assem

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(147 N.E.)

bly to permit the owners of lands to construct drains, ditches, and levees for agricultural, sanitary, and mining purposes, and to pay for the same by special assessment upon the property benefited, that section cannot be held to apply to a district organized for sanitary and sewage disposal purposes. Section 9 of article 9 of the Constitution is as follows:

"The General Assembly may vest the corporate authorities of cities, towns and villages, with power to make local improvement by special assessment or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform, in respect to persons and property within the ju

risdiction of the body imposing the same."

Section 31 of article 4 of the Constitution provides as follows:

12 gives power to the board of trustees to levy and collect taxes for corporate purposes within the limits of the district, and section 19, as we have seen, authorizes the construction of local improvements by special assessment.

Appellant contends that the powers conferred by section 9 of article 9 upon the Legislature to make local improvements by special assessment is to be limited to the corporate authorities of cities, towns, and villages, and that, even though the authorities of this sanitary district be held to be corporate authorities, they are not within the list of municipalities that may receive that power, and that under the ruling of this court in Updike v. Wright, 81 Ill. 49, the enumeration of the corporate authorities of cities, vil

lages, and towns by this section excludes from the power of the Legislature all other corporate authorities, including those of sanitary districts. It was later held, however, "The General Assembly may pass laws per- in West Chicago Park Com'rs v. Western mitting the owners of lands to construct drains, Union Telegraph Co., 103 Ill. 33, that a park ditches and levees for agricultural, sanitary or mining purposes, across the lands of others, and district is a quasi municipal corporation and provide for the organization of drainage dis- the commissioners thereof are corporate autricts and vest the corporate authorities there- thorities, with power to levy and assess taxof, with power to construct and maintain levees, es and to condemn property. This case redrains and ditches, and to keep in repair all ferred to the Updike Case, and distinguished drains, ditches and levees heretofore constructed it from those cases in which the powers of under the laws of this state, by special assess-park commissioners as corporate authorities ments upon the property benefited thereby."

Section 1 of the act concerning sanitary district's, referred to, provides in part as fol

lows:

"That whenever any area of contiguous territory shall contain one or more incorporated cities, towns or villages or parts of one or more incorporated cities, towns or villages, and shall be so situated that the construction and maintenance of a plant or plants for the purification and treatment of sewage and the maintenance of a common outlet for the drainage thereof, will conduce to the preservation of the public health, the same may be incorporated as a sani tary district under this act in the manner following."

were discussed.

In People v. Salomon, supra, in discussing the application of section 5 of article 9 of the Constitution of 1848, which was similar to section 9 of article 9 of the Constitution of 1870, so far as the corporations enumerated are concerned, it was said that this constitu

tional provision is a limitation upon the power of the Legislature to authorize any other than corporate authorities to assess and collect taxes, but that it does not confine the Legislature to any particular type of corporate authorities; that there is no prohibition against the creation by the Legislature of every conceivable description of corporate authorities, and, when the same are This section also provides the manner by created, to endow them with all the faculwhich legal voters residing within the limits ties and attributes of corporate authorities of the proposed district may, by a petition to then existing. In West Chicago Park Com'rs the county judge of the county in which the v. City of Chicago, 152 Ill. 392, 38 N. E. 697, proposed district or the major portion this court held park districts to be municipal thereof is located, cause the matter of corporations. It has since been frequently the organization of such district to be sub- held that an act giving to park commissionmitted to a vote of the people of such terri- ers authority to make local improvements by tory. The act also provides for the appoint- special assessments is constitutional. ment of trustees and prescribes their pow- Chicago Park Com'rs v. Sweet, 167 Ill. 326, ers. By section 4 of the act the trustees, 47 N. E. 728; Farr v. West Chicago Park when appointed, are declared to be the cor- Com'rs, 167 Ill. 355, 46 N. E. 893; West Chiporate authorities of such district, empow-cago Park Com'rs v. Farber, 171 Ill. 146, 49 ered to manage and control all of the affairs N. E. 427; Cummings & Co. v. People, 213 of the district. The act also provides for the Ill. 443, 72 N. E. 1094. passage and publication of ordinances by the It is not urged that there is express detrustees of the district. Section 7 provides nial in the Constitution of the power of the for sewage disposal. By section 8 the dis- General Assembly to authorize the levy of trict is given power to acquire land by pur- a special assessment by sanitary districts, chase, condemnation, or otherwise. Section but the contention is that the language of

West

the Constitution by necessary implication de- | pra, that the amendment of section 31 of arnies such power. It will not be found, upon ticle 4 was adopted to invest the General Asexamination of the Constitution, that gov-sembly with power to authorize the formaernments of cities, towns, villages, school tion of drainage districts and invest their districts, or other municipal corporations corporate authorities with power to make contemplated therein, are given any powers which by necessary implication exclude the powers sought to be exercised by the sanitary district in this case. There is nothing in the Constitution which commits corporate purposes or powers merely to authorities now existing or prohibits the committal of such powers or purposes to new corporate authorities later to be organized. People v. Salomon, supra.

drains, levees, etc., by special assessment, and it therefore operated as an amendment of section 9 of article 9, so that the latter must be read as vesting corporate authorities of cities, towns, villages, and drainage districts with power to make local improvements by special assessments, and that the power to authorize the formation of sanitary districts and to authorize them to collect taxes for corporate purposes is entirely unaffected.

districts to construct local improvements by special assessment is a valid exercise of the police power of the state and is not prohibited by the sections of the Constitution referred to.

Public corporations for the opening, improving, and repairing of roads and mainWe are of the opinion that the power of taining of bridges have been created by the the Legislature to create sanitary and sewLegislature and invested with powers of tax-age disposal districts and to authorize such ation for corporate purposes. Such acts have been sustained, though the boundaries of the road districts do not coincide with the boundaries of other municipalities. Butz v. Kerr, 123 Ill. 659, 14 N. E. 671. In Wilson v. Board of Trustees, supra, the taxing power of the Chicago Sanitary District, which is made up of territory comprising parts of different municipalities, was sustained as within the legislative power. Similar organizations have been likewise sustained by the courts of other states. Reeves v. Treasurer of Wood County, 8 Ohio St. 333; Woodruff v. Fisher, 17 Barb. (N. Y.) 224; Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389, 46 Am. Rep. 637. Cooley on Taxation (1st Ed.) 101.

[2, 3] The General Assembly may, either by direct enactment or by delegation of power to public corporations, provide for the preservation of health as a proper exercise of the police power. 1 Blackstone's Com. (Sharswood's Ed.) 132; Dillon on Mun. Corp. $93; Cooley on Taxation (1st Ed.) p. 101. There is to be included under this power the making of sewers and drains, the removal of garbage and filth, the boring of wells, the construction of aqueducts for procuring a fresh water supply, the drainage of malarial swamps and the erection of levees to prevent overflow. Wilson v. Board of Trustees, supra. It is within such classification that the district in question falls, and we are of the opinion that there is no limitation in section 9 of article 9 of the Constitution upon the power of the Legislature to provide for such districts and to empower them to construct local improvements by special assessment within the purposes for which they are organized.

The judgment of the county court, confirming the assessment, will therefore be affirmed.

Judgment affirmed.

(317 Ill. 55)

CITY OF KANKAKEE v. SMALL et al. (No. 16514.)

(Supreme Court of Illinois. April 24, 1925.) 1. Municipal corporations 304(13)—Ordinance, providing for payment of costs and expenses in excess of amount estimated, illegal only as to excess above 6 per cent. of amount of assessment.

While substantial variance between esti

mate and street improvement ordinance vitiates latter, provision in ordinance for payment of costs and expenses of making and collecting assessment by special assessment is illegal only as to excess above 6 per cent., authorized by Local Improvement Act, § 94, of amount of assessment, though amount named in ordinance was in excess of estimate.

2. Municipal corporations 301-Valid ordinance authorizing improvement assessment indispensable.

Valid ordinance is foundation of improvement by special assessment and cannot be dispensed with.

3. Municipal corporations

408(1)-Statutes authorizing assessments strictly construed. Statutes granting power to levy taxes or assessments must be strictly construed.

[4] Nor can it be said that section 31 of 4. Municipal corporations 92 Council's article 4 of the Constitution, as the same was rules cannot be invoked to defeat rights inamended in 1878, is a restriction upon the tervening because of legal action. Legislature, preventing the authorization of City council cannot invoke statutory powsanitary districts to construct local improve-er to make its own rules of procedure to dements by special assessment. It was said by feat rights intervening by reason of legal acthis court in Wilson v. Board of Trustees, su- tion.

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