became a part of the act at the time of its | plaint, by general or special orders, rules or passage, and since has remained unchanged. regulations, or otherwise, to require every pubAppellee does not deny this grant of power, lic utility to maintain and operate its plant, but insists that it was the purpose of the equipment or other property in such manner General Assembly, by the passage of "An as to promote and safeguard the health and act to provide for the regulation of public and the public, and to this end to prescribe, safety of its employees, passengers, customers, utilities," approved June 30, 1913, in force among other things, the installation, use, mainJanuary 1, 1914 (Laws 1913, p. 459), to vest tenance and operation of appropriate safety or in the Public Utilities Commission, and by other devices or appliances including interlockits successor, "An act concerning public ing and other protective devices at grade crossutilities," approved June 29, 1921, in force ings or junctions and block or other systems of July 1, 1921 (Laws 1921, p. 702), to vest in signaling, to establish uniform or other standthe Illinois Commerce Commission, complete ards of equipment, and to require the performance of any other act which the health or safeand exclusive power to regulate and control the public may demand." all public utilities in the state, and that such purpose is manifested by the terms and provisions of the two acts. A consideration of the scope and pertinent provisions of the later act is therefore necessary. The act, among other things, creates the Commerce Commission, and vests it with general supervision of all public utilities, including power to establish their systems of accounting, to supervise, regulate, restrict, and control the issuance of their stocks and bonds, to regulate their rates and services, and to hold investigations, inquiries, and hearings concerning any matters within the provisions of the act or any other act relating to public utilities, make findings and enter its orders thereon. More specifically, section 9 (Laws 1921, p. 708) requires every public utility to comply with every order or regulation made by the commission. Section 32 (Laws 1921, p. 719) requires every such utility to furnish and maintain such instrumentalities, equipment and facilities as shall promote the safety, health, comfort, and convenience of its patrons, employees, and the public, and as shall be in all respects adequate and efficient. The fortyninth section (Laws 1921, p. 728) provides that, whenever the commissión, after a hearing upon its own motion or upon complaint, shall find that the equipment, appliances, facilities, or practices of any public utility are unsafe, improper, or inadequate, the commission shall determine, and by its order, rule, or regulation fix, the safe, proper, or adequate equipment, appliances, facilities, or methods to be observed, furnished, constructed, enforced, or employed. By section 50 (Laws 1921, p. 728), whenever the commission, after a hearing upon its own motion or upon complaint, shall find that additions, extensions, repairs, or improvements to or changes in the existing plant, equipment, apparatus, facilities, or other physical property of any public utility ought reasonably to be made, to promote the security or convenience of its employees or the public, the commission shall make and serve an order directing that such additions, extensions, repairs, improvements, or changes be made. Section 57 (Laws 1921, p. 733) provides: "The commission shall have power, after a hearing and upon its own motion, or upon com ty of its employees, passengers, customers or By section 58 (Laws 1921, p. 734) the commission is given power, after a hearing, when in its opinion the public safety requires it, to alter or abolish any existing or future grade crossing or to require a separation of grades at such crossings, and to prescribe, after a hearing of the parties, the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad companies affected, or between such companies and the state, county, municipality, or other public authority in interest. Section 64 (Laws 1921, p. 738) authorizes the making of complaints by the commission upon its own motion, or by any person or corporation, Chamber of Commerce, Board of Trade, or any industrial, commercial, mercantile, agricultural, or manufacturing society, or any body politic or municipal corporation. Section 65 (Laws 1921, p. 740) provides for the issuance of process to enforce the attendance of necessary witnesses, for hearings, the taking of evidence, the entry of orders and for appeals. Section 76 (Laws 1921, p. 747) subjects any public utility which violates or fails to comply with any provision of the act, or any order, decision, rule, regulation, direction, or requirement of the commission, to a fine of not less than $500 nor more than $2,000 for each and every offense. Sections 81 to 86, inclusive (Laws 1921, pp. 748-753), which constitute article 6 of the act, concern local utilities, and permit a city which adopts the article, to regulate and control such public utilities, "except railroads constituting or used as a part of a trunk line railroad system," in the manner there prescribed. It will be observed that every public utility is required by section 32, among other things, to provide and maintain such instrumentalities, equipment, and facilities as shall promote the safety, not only of its patrons and employees, but also of the public. The act expressly provides for hearings by the commission concerning matters relating to public utilities, and the making of rules, regulations, decisions, or orders as the result of (147 N.E.) such hearings. Public utilities are required for the village board may direct the stationby section 9 to obey such rules, regulations, ing of a flagman, while the commission may decisions, or orders, and the seventy-sixth order a separation of grades. Obviously, in section prescribes several penalties for fail- such cases both cannot be obeyed, and conure to comply. The commission has the current authority often leads to conflict and power, after a hearing, to determine safe, results in confusion. proper, and adequate appliances and facil- [1] The Public Utilities Act enjoins obediities, and by its order to require them to be ence to the commission's orders. That act furnished, constructed, or employed. If after is the later one, and covers the whole subject a hearing it shall find that additions or im- of promoting the safety of the public at provements to or changes in any existing the intersections of streets and railroads. facilities or other physical property of any It is complete in itself, and evidently was public utility ought reasonably to be made, intended by the General Assembly to superto promote the security of the public, it may sede the power conferred by subsection 27 of by its order direct such additions, improve- section 1 of article 5 of the general Cities ments, or changes to be made. By section 57 and Villages Act to require railroad comthe commission has the power, after a hear- panies to keep flagmen at street crossings. ing, to require every public utility to main- While repeals by implication are not favortain and operate its property in such mannered, yet, where two statutes are clearly reas to promote and safeguard the safety of pugnant to each other, the later one operates its employees, passengers, and the public, as a repeal of the former. Illinois & Mich. and to that end may prescribe, among other igan Canal v. City of Chicago, 14 Ill. 334: things, the installation, use, maintenance, Dingman v. People, 51 Ill. 277; Board of and operation of appropriate safety or other Water Com'rs v. Conkling, 113 Ill. 340; Mcdevices or appliances at grade crossings, and Cormick v. People, 139 Ill. 499, 28 N. E. 1106; to require the performance of any other act People v. Town of Thornton, 186 Ill. 162, 57 which the safety of its employees, passengers, N. E. 841. or the public may demand. Manifestly, under this section the commission may require railroads to station flagmen at grade crossings. To promote the public safety the commission may also, by section 58, after a hearing, alter or abolish grade crossings, or require a separation of grades at such points, and may even fix or charge a portion of the expense of any such change upon the municipality affected. The provisions of the act to which reference has been made clearly show that the commission is charged with the duty, among others, of safeguarding and promoting the safety of the public at street intersections of railroads, and that it is vested with plenary power to perform that duty. [2] It is a principle of statutory construction that, where the General Assembly enacts a new statute upon a certain subject, and the legislative intention appears from the act to be to frame a new scheme in relation to, and to make a revision of, the whole subject, there is, in effect, a legislative declaration that whatever is embraced in the new statute shall prevail and that whatever is excluded shall be discarded. The revision of the whole subject by the new statute evinces an intention to substitute its provisions for the old law upon the subject. People v. Town of Thornton, supra; State Board of Health v. Ross, 191 Ill. 87, 60 N. E. 811; People v. Freeman, 242 Ill. 152, 89, N. E. 667; Hoyne v. Danisch, 264 Ill. 467, 106 N. E. 341. The Public Utilities Act, and that portion of subsection 27 of section 1 of article 5 of the Cities and Villages Act invoked by appellant to sustain the ordinance in question, are so clearly inconsistent and repugnant to each other that both cannot by any fair and reasonable construction be reconciled and made effective. The question then arises: Does the Public Utilities Act (Laws 1921, p. 702), by confer ring this ample control and supervision over intersections of streets with railroads, deprive municipalities organized under the general Cities and Villages Act of the power to pass ordinances requiring railroad companies to keep flagmen at such crossings? The commission exercises its power after a That the power sought to be exercised by hearing and its order is subject to review the ordinance in question is vested exclusiveby judicial tribunals. The order must be ly in the Commerce Commission is further obeyed by the public utility, and its failure shown by the sixth article of the Public to do so will subject it to the penalties pre- Utilities Act, which has reference to local scribed by the act. The authority conferred utilities. The article only becomes effective by subsection 27 of section 1 of article 5 of after it has been adopted by a majority of the Cities and Villages Act is exercised by the voters of a city at an election, and when the passage of an ordinance, and no investi- adopted the city becomes vested with certain gation of or hearing upon its subject-matter powers over public utilities furnishing servis required. If both the commission and the ice, products, or commodities within the village authorities can exercise the power, limits of the city, but railroads constituting their requirements with reference to the or used as a part of a trunk railroad system same crossing may be utterly contradictory, are expressly excepted. If a city, even after the adoption of article 6, has no power to regulate railroads of the character specified, it is difficult to discern how a village which has never adopted that article, and for that reason is not vested with the power of regulating local utilities, can exercise the power claimed by appellant. [3] The General Assembly, by subsection 27 of section 1 of article 5 of the Cities and Villages Act, effective July 1, 1872, vested in cities and villages organized under that act the power, among others, to require railroad companies to keep flagmen at railroad crossings of streets. This was a delegation to the municipalities designated of a portion of the police power of the state. The police power is an attribute of sovereignty, and is primarily vested in the General Assembly, which has the right at any time to recall it from the agency to which it has been delegated, and, after being recalled, to retain it, or to confer it upon some other agency of government. In the exercise of this power the state may intervene, whenever the public interests demand such interference, and in this respect a large discretion is necessarily vested in the Legislature, to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Durand v. Dyson, 271 Ill. 382, 111 N. E. 143, Ann. Cas. 1917D, 84; Illinois Central Railroad Co. v. Willenborg, 117 Ill. 203, 7 N. E. 698, 57 Am. Rep. 862; City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210, 8 L. R. A. 916. [4] The General Assembly, in its discretion, withdrew from cities and villages the power here sought to be exercised by the appellant, and vested it in the Commerce Commission, another agency of government. That part of subsection 27 of section 1 of article 5 of the Cities and Villages Act which conferred upon cities and villages organized under that act the power to require railroad companies to keep flagmen at railroad crossings of streets was repealed by the Public Utilities Act. The judgment of the circuit court is affirmed. Judgment affirmed. FARMER, J. (dissenting). The power of local self-government by municipalities in the adoption of such ordinances as the one here challenged has always been regarded as so desirable and important to cities and villages; its lawful exercise has existed so long and has been availed of so often, that it might well be considered a part of our public policy. I am not able to see any public necessity for a change in that regard, or that the public interest would be better serv ed by taking the power to control the matter here involved from municipalities, and resting it exclusively in the Commerce Commission. Certainly it is competent for the Legislature to do that, if it thinks proper; but, before I would be willing to hold it has done so, its intention will have to be more clearly and unmistakably manifested than it is by the Public Utilities Act. That the Commerce Commission may also be given jurisdiction of the subject does not, to my mind, show a clear intention to vest in the Commerce Commission the exclusive control of the entire subject, and deprive municipalities of the power to pass ordinances of the character of the one here involved. As I view it, there is nothing so incompatible in the two bodies having concurrent jurisdiction of the same matter as to necessitate holding that the former statute was repealed by implication. The ordinance is a police regulation of the village, the power to adopt which was expressly conferred by the Cities and Villages Act. There are numerous instances where municipalities and the General Assembly legislate upon the same subject, and, because that is so, ordinances of municipalities are not necessarily invalid. An illustration of this doctrine is City of Chicago v. Union Ice Cream Manf. Co., 252 Ill. 311, 96 N. E. 872, Ann. Cas. 1912D, 675. The action in that case was instituted for the violation of an ordinance, adopted in 1905, regulating the sale of food, which provided a penalty for selling or exposing for sale impure, adulterated, or harmful food, or to which any injurious foreign substance had been added. In 1907 the Legislature passed an act, which went into effect July 1 (Laws 1907, p. 543), called the Pure Food Act, and it was contended that by the passage of the Pure Food Act the Legislature intended to, and did, resume the power delegated by the Cities and Villages Act to municipalities to regulate the sale of food by ordinance, and by implication it repealed the power granted municipalities to legislate on the same subject. The court denied that contention, and held it was clear the Pure Food Act was not intended to deprive municipalities of the authority given them by the provisions of the Cities and Villages Act, provided the ordinances were not in conflict with the Pure Food Act. The court said the great weight of authority is to the effect the Legislature may confer police power upon a municipality over subjects within the provisions of existing state laws. Courts have the same power to review the validity of an ordinance that they have to review the validity of the order of the Commerce Commission. (316 I11. 598) (147 N.E.) JOHNSTON v. CITY OF GALVA. (Supreme Court of Illinois. April 24, 1925.) 1. Constitutional law 277(1)-Owner could not be deprived of right to continued flow of stream undefiled by sewage, without due process of law. Owner could not be deprived of right to continued flow through his farm of stream in its natural state, undefiled by sewage, without due process of law, and was not divested thereof by city's construction of sewer system emptying into creek, in view of Cr. Code, 8 221. 2. Municipal corporations 736-Municipali ty may not commit nuisance. Municipality has no greater right to commit nuisance than has an individual. 3. Nuisance 50 (5)—Rule requiring injured party to mitigate damages inapplicable to nuisances. Rule requiring injured party to protect himself from consequences of another's wrongful act, by exercise of ordinary care, effort, and expense on his part, does not apply to nuisances. 4. Waters and water courses 76-Owner of farm not required to mitigate damages by fencing polluted stream. There was no duty on owner of farm to mitigate his damages from polluted stream by fencing off stream to keep his cattle from wading therein, and cost of building and maintaining fence is not his measure of damages. 5. Damages 20-Must be proximate result of wrong of which complaint is made. Damages must be proximate result of wrong of which complaint is made. 6. Damages 6-Evidence 495-Right to damages not lost because of difficulty or impossibility of exact ascertainment but best evidence thereof is admissible. Defendant cannot escape liability for damages for tort because they are difficult or impossible of exact ascertainment and, though witnesses will not be permitted to speculate as to possible or probable damages, best evidence which subject will admit is receivable, which may be merely opinion evidence. er damage resulted from wrongful act of which complaint is made or from some other cause. 9. Municipal corporations 845(4)-Death of horses from pollution of stream held not proved. Evidence held insufficient to show that death of plaintiff's horses from lockjaw resulted from pollution of stream by sewage from defendant city. Error to Appellate Court, Second District, on Appeal from Circuit Court, Henry County; Charles J. Searle, Judge. Action by William Johnston against the City of Galva. Judgment for plaintiff was affirmed by the Appellate Court (232 Ill. App. 632), and defendant brings error. Reversed and remanded. Clark Aby, of Galva, and Hal M. Stone, of Bloomington, for plaintiff in error. Sturtz & Ewan, of Kewanee, for defendant in error. DE YOUNG, J. William Johnston instituted suit in the circuit court of Henry county against the city of Galva to recover damages caused by the pollution of a natural water course which ran across his farm. A jury trial resulted in a verdict for the plaintiff for $4,000. The court required a remittitur of $1,500 and judgment was rendered for $2,500. Upon appeal to the Appellate Court for the Second District, the judgment of the circuit court was affirmed. The record is here by writ of certiorari granted upon the petition of the city. For many years William Johnston owned 112 acres of farm land, of which the north 32 acres were situated within the limits and upon the southern boundary of the city of Galva. The remaining 80 acres constituted a rectangular tract, one-quarter of a mile in width from east to west, adjoining the north 32 acres and extending south for one-half of a mile. Johnston and his family resided on the north 32 acres. The south 55 acres of the farm consisted of pasture land, on which his lived stock grazed. Across this pasture, from a point on the east line of the farm about one-eighth of a mile north of its southern boundary, a creek ran in a north 7. Waters and water courses 76-Cost of feeding cows while kept from pasture re-westerly direction. About the year 1912 the sulting in loss of milk, etc., held items of damages for pollution. Cost of feeding cows while kept from pasture because of pollution of stream, resulting loss of milk, and cost of labor, and value of plaintiff's time in driving his horses to and from water because they refused to drink from stream, held proper items of damages if they resulted from pollution of stream. city of Galva, a municipal corporation with a population of approximately 3,500, constructed a sewer system. A part of this system conveyed the sewage from the business houses and dwellings of about 500 people in the south and east portions of the city to a settling tank and filtering beds located south of the corporate limits. After subjection to whatever purification process the tank and 8. Damages 184-Cannot be allowed where beds afforded, the sewage passed through an cause of injury is speculative. Damages cannot be allowed where resort must be had to speculation to determine wheth open ditch, then through certain tile drains and a concrete abutment, and finally into the creek at the east line of Johnston's farm. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Water, which was collected from an area of creek, aggregating $500 annually; and (4) approximately 1,100 acres to the northeast, the value of three horses which died of lockeast, and southeast of Johnston's land, flow-jaw in the year 1919, $750. Evidence in suped through the creek prior to the construc- port of these items was admitted. tion of the sewer system. The extent of that flow was disputed. On behalf of Johnston, the defendant in error, it appeared that it was practically continuous throughout the year, while the city of Galva, the plaintiff in error, offered testimony that the creek was often dry. The defendant in error did not, however, rely upon the creek to supply water for his live stock, because he obtained water for that purpose from a well near his residence. The evidence concerning the quantity and character of the sewage which was emptied into the creek was also in conflict. From the testimony offered by the defendant in error it appeared that not all of the filtering beds were utilized, and that sewage left the disposal tank after partial purification; that at times it became so thick that it would hardly flow; that sludge was deposited on the bottom of the creek, though decreasing in quantity as the creek pursued its course westward; that the sewage was of a dirty milky color and had an odor which was more offensive in warm, dry weather than it was after freshets occurred or when it was cold, and that the odor was noticeable for a considerable distance from the stream. Witnesses who had made a study of sanitation and disease-producing conditions and had inspected the creek testified that germs causing typhoid and scarlet fever and diphtheria were carried in the sewage, and that these germs might infect the milk if the cows were permitted to wade in the creek. Certain witnesses testified that there was no odor from | the creek, while others stated that there was an odor which was perceptible for only a short distance. Witnesses for the plaintifr in error admitted that the creek was polluted to some extent and that plans for a new sewage treatment plant were under consideration by the city. [1, 2] The plaintiff in error insists that it was the duty of the defendant in error to mitigate the damages, if any, by building a fence on both sides of the creek, and that in any event the cost of such a fence would be the full measure of his damages. It appeared that it would cost $160 to build the fence and that its maintenance would require the expenditure of $10 annually. Prior to the construction of the sewer system by the city and the deposit of its sewage in the creek, there was no necessity for such a fence. The defendant in error had enjoyed the unobstructed use of his pasture land and the flow of water in the creek in its natural state, undefiled by sewage. The construction of the sewer system by the plaintiff in error did not divest him of these rights. He could not be deprived of them except by due process of law. Tetherington v. Donk Bros. Coal Co., 232 Ill. 522, 83 N. E. 1048; 20 R. C. L. 402. This is true even though a system of sewage disposal is an agency for the protection of the health of a city's inhabitants. To corrupt or render unwholesome or impure the water of any stream to the injury or prejudice of others constitutes a public nuisance by section 221 of the Criminal Code. Smith's Stat. 1923, p. 708. A municipality has no greater right to commit a nuisance than has an individual. City of Kewanee v. Otley, 204 Ill. 402, 68 N. E. 388; City of Aurora v. Reed, 57 Ill. 29, 11 Am. Rep. 1; City of Jacksonville v. Doan, 145 Ill. 23, 33 N. E. 878; Nevins v. City of Peoria, 41 III. 502, 89 Am. Dec. 392; 1 Farnham on Waters and Water Rights, § 138b; 4 Dillon on Mun. Corp. (5th Ed.) § 1740. [3, 4] The rule requiring the injured party to protect himself from the consequences of the wrongful act of another by the exercise of ordinary effort, care, and expense on his part does not apply in cases of nuisances. The defendant in error claimed damages City of Jacksonville v. Doan, supra; City of for the five-year period beginning in October, | Jacksonville v. Lambert, 62 Ill. 519; City of 1917. During that time he owned approxi- | Aurora v. Reed, supra; American Smelting mately 12 cattle, 15 horses, and 100 hogs, & Refining Co. v. Riverside Dairy & Stock and he milked 5 to 7 cows. His claim in- Farm, 236 F. 510, 149 C. C. A. 562; Price v. cluded, among others, the following items: High Shoals Manf. Co., 132 Ga. 246, 64 S. (1) The cost of hay and grain fed to his E. 87, 22 L. R. A. (N. S.) 684; 8 R. C. L. 445; milch cows from May to October of each 17 R. C. L. 717; 2 Wood on Nuisances (3d year while they were confined to the barn Ed.) § 844; 1 Wood on Nuisances (3d Ed.) lot to prevent their coming into contact with § 435; Paddock v. Somes, 102 Mo. 226, 14 the sewage instead of grazing in the pasture, S. W. 746, 10 L. R. A. 254; Niagara Oil Co. as they did before the sewer emptied into the v. Ogle, 177 Ind. 292, 98 N. E. 60, 42 L. R. A. creek, approximately $450 annually; (2) the (N. S.) 714, Ann. Cas. 1914D, 67; Holsman v. loss of milk which resulted from keeping the Boiling Spring Bleaching Co., 14 N. J. Eq. cows out of the pasture, 30 to 35 quarts a 335. No duty rested upon the defendant in day, at 10 cents per quart, the market price, error to inclose the creek by a fence, and the or $450 each year; (3) the cost of labor, $125, cost of building and maintaining such a and the value of his own time, $375, each fence is not the measure of his damages. year for driving the horses to and from water because they refused to drink out of the [5-7] It is further contended by the plaintiff in error that the items for (1) the cost |