(147 N.E.) his answer, and alleging that the trust deed,, tempt of court. He offered Mrs. Dorian as and two certain judgments which the appellant had secured against Mrs. Dorian, were void, and praying their cancellation as to his property. The cause was referred to a master in chancery to take testimony and report his conclusions of fact and law. Evidence was heard, and the master reported recommending that the original and supplemental bills be dismissed and that the prayer of the cross-bill be granted. The chancellor entered a decree in accordance with the recommendations of the master. It is sought here to reargue the question as to the ownership of this property in Dorian. That, however, has been settled by the 'case of Dorian v. Dorian, supra. [1] It is urged by appellees that the record shows that appellant had notice of the trust relationship existing between Dorian and his then wife, Catherine, in whose name the title to the property was taken, and that she was incompetent to execute the trust deed at the time she signed the same. When the divorce case was here on review, we held, as has been stated, that the evidence did not show either that Macaulay had notice of the ownership of the real estate by Dorian or that Mrs. Dorian was incompetent to execute the trust deed and notes. The evidence as to her condition at the time the trust deed and notes were made is substantially the same on this hearing as in the divorce case and since it is set out and discussed in the case of Dorian v. Dorian, supra, it is not necessary to refer to it further here. While additional evidence is given on the hearing of this cause as to the use of intoxicants by Mrs. Dorian, it does not show that she was incompetent to execute the trust deed. Her acknowledgment of it on the following day, when she was shown not to be intoxicated, must, moreover, be considered as her ratification of the execution of the instrument on the day before. [2] Pertaining to the matter of notice to Macaulay of the existence of the trust between Thomas and Catherine Dorian, the evidence is somewhat more lengthy; but we are of the opinion that it is substantially the same. It appears from the evidence that Macaulay was aware that the records showed the title to the property to be in Mrs. Dorian and that he had seen the conveyances by which she acquired that title. As to the evidence pertaining to these conveyances, which is the same as that set out and discussed in Dorian v. Dorian, supra, it is not necessary to discuss it further here. [3] The evidence also shows that on October 15, 1915, Dorian filed a petition for the appointment of himself as conservator of the estate of Mrs. Dorian, and in that petition alleged that she owned the property involved here. It also shows that on November 16, 1916, Dorian entered into a recognizance in a case wherein he was charged with con surety, she qualifying as owning a part of the property involved. We are of the opinion, therefore, that the record in this case shows that Macaulay did not have notice of the existence of the trust agreement between Dorian and Mrs. Dorian, but that such agreement was, in fact, a secret trust. Moreover, Macaulay had represented Dorian in cases where the latter had been charged with nonsupport of his children, and there was nothing in their relationship which, according to the evidence, gave him any information that Dorian, and not Mrs. Dorian, owned the real estate. In addition to this, Mrs. Dorian collected the rents of the real estate that was rented and in every way controlled the property as her own. We are of the opinion, therefore, that the chancellor erred in approving the finding of the master that appellant had notice of the existence of this trust, and that he further erred in approving the master's finding that Mrs. Dorian was not competent to execute the trust deed at the time she signed it. It is not contended that if the chancellor is in error as to these matters the property is nevertheless not subject to appellant's trust deed. Dorian having placed his property in the name of Mrs. Dorian and allowed it to remain there, and having made statements of record that she owned the property, is now estopped to deny that his title thereto is subject to the lien of the trust deed executed by her. Gallagher v. Northrup, 215 Ill. 563, 74 N. E. 711; Smith v. Jackson, 76 Ill. 254. [4, 5] It is contended in the cross-bill that certain judgments, one for $553 entered on the note secured by the trust deed herein, and another judgment the amount of which the cross-bill does not state, are void as having been entered lis pendens. The first of these judgments was entered on August 29, 1917, the day following the filing of the divorce bill of Dorian against his wife. The second judgment was entered on July 22, 1918. Both were judgments by confession. Under the view we take of the trust deed in this case, appellant is entitled to a lien on the real estate involved by reason of that instrument and is entitled to the foreclosure thereof. The record shows that the note upon which the first judgment was entered was the one secured by the trust deed, and it is immaterial, therefore, whether that judgment was or was not valid. The note on which the second judgment was entered had nothing to do with and was in no way connected with the trust deed involved in this case. The judgment on that note was taken after Dorian had filed his supplemental bill in the divorce proceeding, in which he contended the property belonged to him, and while that bill was pending. That judg ment, therefore, while valid as to Mrs. Dorian, is not valid as a lien against the prop erty involved here, and it was not error on the part of the chancellor to so hold. D.. H. Mudge, of Edwardsville, for appellee. HEARD, J. This is an appeal from an order of the county court of Madison county, dismissing a petition filed by appellants, as [6] Appellees argue that appellant is not entitled to recover his costs and attorneys' fees occasioned by his being made party defendant in the divorce proceeding. The trust deed specifically provides that costs and ex-trustees of schools of township 5 north, range penses arising out of any suit in connection with the trust deed shall be recoverable in addition to the note checks for which the mortgage was given, and as there is no dispute as to the amount of these costs, appel-ty consolidated school district No. 151, a dislant will be entitled, on decree, to recover the same in the amount shown by the evi dence. 10 west, in said county, for the condemnation of certain real estate within the said township for a site whereon to construct a new high school building for Alton communi trict within the township. The basis of the condemnation proceedings was the holding of a special election May 18, 1923, in the community consolidated school district, for the purpose of voting upon the propositions of locating a schoolhouse site and authorizing the board to purchase the same, and the subsequent action of the board of education in selecting the site in question, no site having secured a majority of all the votes cast at the election. Appellee filed her answer in For the reasons here given, that part of the decree holding the judgment of July 22, 1918, invalid as a lien on the real estate involved is affirmed, and that portion holding the trust deed void is reversed and the cause remanded, with directions to enter a decree for foreclosure of the trust deed in accordance with the views herein expressed. Reversed in part and remanded, with di- writing in the condemnation proceedings, derections. (317 Ill. 147) BIERBAUM et al. v. SMITH. (No. 16600.) (Supreme Court of Illinois. April 24, 1925. Rehearing Denied June 3, 1925.) 1. Schools and school districts 68-Schoolhouse site election void, unless board of education's record shows giving of statutory notice. Unless record of board of education shows that notice was given as required by statute, schoolhouse site election is void; giving of such notice being jurisdictional. 2. Constitutional law 70(3)-Existence of statutory conditions authorizing exercise of power for court to determine. nying the right of the petitioners to maintain their action, and presented several objections to the proceedings, among which was one that the election was not duly and regularly held in compliance with the terms and provisions of the statute relative thereto. The specific objection pointed out is that the record of the proceedings of the board of education fails to show that notices of election as provided by statute were posted. [1] The record of the proceedings of the board of education fails to show that the required notices were posted. Appellants contend that a certificate of posting notices. made by the secretary of the board and filed by him in his office May 10, 1923, was a sufficient compliance with the law. In this certificate, as secretary, he certifies that on the 3d day of May, 1923, he posted at least ten notices of election (a copy of the posted notices being attached to the certificate) in at least ten of the most public places within each voting precinct in the district, specifying in the certificate the places where such notices were posted. It has been repeatedly held by this court that the giving of notice of an election such as this is jurisdictional, that without it a board of education has no power to act, whatever may be the result of the election, that the acts of a board of education must be manifested by its record, and, unless the record shows that notice Appeal from Madison County Court; Wil- was given as required by statute, the elecbur A. Trares, Judge. Under what conditions power of eminent domain may be exercised is purely legislative question, but it is for court to decide, as preliminary question, when called on, whether statutory conditions exist, and, if not, to dismiss petition. 3. Eminent domain 169-Valid election to select schoolhouse site condition precedent to condemnation proceedings. Valid election to select schoolhouse site is condition precedent to maintenance of condemnation proceedings to procure site. Petition by Frank A. Bierbaum and others, as Township School Trustees, to condemn land for school building, opposed by Alice Emily Smith. From order dismissing petition, petitioners appeal. Affirmed. McGinnis & McGinnis and William Boynton, all of Alton, for appellants. tion is void. Southworth v. Board of Education, 238 Ill. 190, 87 N. E. 403; Roberts v. Eyman, 304 Ill. 413, 136 N. E. 736; People [2, 3] The question under what conditions the power of eminent domain may be exerP. cised is purely legislative, but it is for the court to decide, as a preliminary question, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) Classification in interest of public safety is largely discretionary with Legislature, and question becomes judicial only when legislative action is clearly unreasonable. when called upon, whether the statutory ( 5. Constitutional law 70(2)-Classification conditions authorizing the exercise of such by Legislature in interest of public safety power exist, and, if such statutory condi- largely discretionary. tions are not found to exist in the specific case, to dismiss the petition for condemnation. Illinois State Trust Co. v. St. Louis, Iron Mountain & Southern Railway Co., 208 Ill. 419, 70 N. E. 357. A valid election to select a schoolhouse site is a condition precedent to the maintenance of condemnation proceedings to procure such site. Appellants having failed in this case to show by competent evidence that a valid election for that purpose had been held, the court properly dismissed the petition. Several other questions have been discussed by the parties in their briefs and arguments, but, as the question of notice is de cisive of the case, we are not called upon to discuss or decide them. The order and judgment of the county court of Madison county are therefore affirmed. Judgment affirmed. (317 Ill. 132) WEKSLER v. COLLINS et al. (No. 16110.) (Supreme Court of Illinois. April 24, 1925. Rehearing denied June 5, 1925.) I. Constitutional law 241-Municipal corporations 703 (1)-Act requiring operators of motor vehicles for passenger hire to file indemnity bond held not unconstitutional. Laws of 1923, p. 542, §§ 42a-42d, requiring operators of motor vehicles for passenger hire in city of 100,000 or more to file indemnity bond or insurance policy as security against injuries, held not to contravene equal protection clause of Const. U. S. Amend. 14. 2. Constitutional law 225(1)—Statute applying only to one city not violative of equal protection clause where based on real distinction. Statute applying only to one city does not deny equal protection of laws, where based on real distinction between that particular city and other territory of state. 3. Municipal corporations 703(1)—Use of streets by vehicles for hire may be strictly regulated. Use of streets by vehicles for hire, being extraordinary use which may be prohibited or permitted as Legislature may prescribe, will justify degree of regulation not admissible in activities pursued as matter of right. 4. Constitutional law 241-Statute regulating taxicab operators held not discriminatory against taxicabs. Laws 1923, p. 542, requiring taxicab operators to file indemnity bond or insurance policy as security for injuries, held not arbitrarily discriminatory as between taxicabs and other motor vehicles, in view of their use at all hours on all streets and at greater speed. 6. Constitutional law 48-One who asserts statute is unreasonable or oppressive must show that, as applied to him, it is so. One who asserts a statute is unreasonable or oppressive must show affirmatively that, as applied to him, it is so. 7. Constitutional law 297, 319-Requirement, that operators of motor vehicles for passenger hire file indemnity bond or insurance policy, not violation of due process. Laws 1923, p. 542, requiring operators of motor vehicles carrying passengers for hire to file indemnity bond or insurance policy securing payment for injuries, held not so burdensome as to amount to confiscation and deprivation of property without due process, in violation of Const. U. S. Amend. 14, or Const. Ill. art. 2, § 2. 8. Constitutional law 205(1)➡Regulation of operation of motor vehicles for passenger hire not violative of special privilege prohibition. Laws 1923, p. 542, regulating operation of motor vehicles for carrying passengers for hire, held not violative of Const. art. 4, § 22, prohibiting grant of special privilege, immunity, or franchise. 9. Municipal corporations 703 (1)-Requirement that operators of motor vehicles for hire file indemnity bond held within police power. Laws 1923, p. 542, requiring operators of motor vehicles carrying passengers for hire to file indemnity bond or insurance policy securing payment for injuries, held not unwarranted extension of police power because insuring payment of judgments. 10. Constitutional law 81-Measure of reasonableness of police regulation is what is fairly appropriate. Measure of reasonableness of police regulation is what is fairly appropriate to its purpose under all circumstances, and not necessarily what is best. 1 Laws 1923, p. 542, requiring operators of motor vehicles carrying passengers for hire to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes furnish security "for each such motor vehicle | 21, 1923 (Laws of 1923, p. 542). Demurrers so operated," held not to affect use of vehicle to the bill were filed by the superintendent for private purposes so as to make act unreasonable and arbitrarily discriminatory. 13. Constitutional law 62-Provision that secretary of state may require new bond or insurance policy from operators of motor vehicles for passenger hire held not arbitrary. Laws 1923, p. 542, requiring operators of motor vehicles carrying passengers for hire to furnish bond or insurance policy as security, and providing that secretary of state may require new bond or policy in his judgment, held not arbitrary, as providing no standard; determination of sufficiency of bond being ministerial and not legislative function. 14. Municipal corporations 703(1)-Provision, that bond furnished by operator of vehicles for passenger hire shall be lien on real estate, held discriminatory. Laws 1923, p. 542, § 42a, subd. 1, making bond or policy furnished by operator of motor vehicle carrying passengers for hire as security against injuries a lien on real estate scheduled for indefinite period, with no provision for termination, is an arbitrary discrimination, unreasonable, and void. 15. Statutes 64(2)-Invalidity of provision making bond lien on property scheduled held not to invalidate act requiring operator of vehicles for passenger hire to furnish bonds. Laws 1923, p. 542, requiring operators of motor vehicles carrying passengers for hire to file indemnity bond or insurance policy as security against injuries, held not invalid because of void provision, making bond lien on property scheduled, two provisions being separate and distinct. Thompson, J., dissenting. Heard, J., dissenting in part but concurring specially. of police, the mayor, the Attorney General, and the secretary of state. The state's attorney filed an appearance but did not demur to or answer the bill. A temporary injunction was issued. Thereafter, upon leave granted, complainant added an allegation to his bill that he also filed it on behalf of 200 members of the Independent Taxi Owners' Association, and the demurrers were ordered to stand to the bill as amended. Upon a hearing the several demurrers were tained and the bill as amended was dismissed for want of equity at complainant's costs. He prosecutes this appeal on the ground that the validity of the act in question is involved. sus Section 42a (Laws of 1923, p. 543) makes it unlawful for any person, firm, or corporation to operate any motor vehicle upon any public street in any city of 100,000 or more inhabitants for the carriage of passengers for hire, indiscriminatingly accepting and discharging all such persons as may offer themselves for transportation, unless there is on file with the secretary of state, while such motor vehicle is operated, either: (1) A bond of its owner with a responsible surety company authorized to do business in this state as surety, or a bond of such owner with one or more personal sureties owning real estate in this state of the value of $5,000 above all incumbrances, accompanied by affidavits of such sureties stating, among other things, the location, legal description, market value, nature and amount, with incumbrances, if any. Either bond is required to be in the sum of $2,500 for each motor vehicle so operated, and shall be con Appeal from Superior Court, Cook County; ditioned that the owner of the vehicle will Charles M. Foell, Judge. Suit by Max Weksler against Morgan G. Collins and others. Decree for defendants, and plaintiff appeals. Affirmed. Slottow & Leviton, of Chicago (Charles Leviton, of Chicago, of counsel), for appel lant. Edward J. Brundage, Atty. Gen. (Clarence N. Boord, George E. Dierssen, and Edward E. Wilson, all of Chicago, of counsel), for appellees. DE YOUNG, J. Max Weksler, a resident of the city of Chicago and engaged in operating a taxicab for hire, filed his bill of complaint in the superior court of Cook county against Morgan G. Collins, superintendent of police of the city of Chicago, William E. Dever, mayor of that city, Robert E. Crowe, state's attorney of Cook county, Edward J. Brundage, Attorney General, and Louis L. Emmerson, secretary of state, to enjoin them from enforcing sections 42a, 42b, 42c, and 42d of the Motor Vehicle Law approved June pay all final judgments recovered against him for any injury to or death of any person resulting from the negligence of the owner or his agent in the operation of the ve hicle, and shall by its terms inure to the benefit of the person recovering any such judgment, and provide that he may sue thereon, "and such bond, for the full amount thereof shall, by its terms, be a lien for the benefit of the beneficiaries of said bond on such real estate so scheduled, and shall be recorded in the office of the recorder of deeds in each county in which such real estate is located." Any surety may withdraw from such bond by serving 10 days' written notice upon the owner and the secretary of state, either personally or by registered mail, in which event the owner shall file another bond or insurance policy as required by the act. Upon the expiration of the 10-day period, the secretary of state shall mark the bond "withdrawn," with the date the withdrawal became effective, and the liability of the sureties thereon, so far as any injury or damage sustained thereafter is concerned, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) shall cease. If at any time for any good | policy so filed shall for any reason become cause, in the judgment of the secretary of inoperative, it shall be unlawful to operate state, the bond is insufficient, he may require such motor vehicle until a bond or insurance the owner to replace it with another or with policy complying with the act shall have an insurance policy, as provided by the act, been filed with the secretary of state. and upon such substitution the liability of the sureties on the prior bond as to any subsequent injury or damage shall terminate. Or The (2) A policy of insurance in a responsible company authorized to do business in this state, insuring the owner of the motor vehicle against liability for any injury to or death of any person resulting from the negligence of such owner or his agent in the operation of the vehicle. The policy shall insure the owner for $2,500 for each motor vehicle covered, but where it includes more than one vehicle the liability thereon may be limited to a maximum of $2,500 for each vehicle. The policy shall provide for payment of any final judgment rendered against the owner of such vehicle for such injury or death and that suit may be brought thereon by the owner of any such judgment. policy shall contain a description of each vehicle, giving the manufacturer's name and number and state license number. If at any time the policy be canceled by the issuing company or its authority to do business in this state be revoked, the secretary of state shall require the owner either to furnish a bond or to replace the policy with another in accordance with the act. The policy shall also contain a provision that it cannot be canceled by the issuing company without giving 10 days' notice, in writing, of such cancellation to the owner and secretary of state, either personally or by registered mail. The provisions with reference to requiring a bond or a new policy in the event of the cancellation of an existing policy, the termination of liability upon the concellation of that policy so far as subsequent injury and damage are concerned, and the power of the secretary of state if in his judgment, for any good cause, the existing insurance policy is insufficient, to require the owner of the vehicle to substitute a bond or another insurance policy, and the effect of such substitution, are the same as the provisions in subsection 1 concerning the withdrawal of sureties from bonds and the power of the secretary of state with reference to an insufficient bond. By section 42d any violation of any provision of the three preceding sections, or failure to comply with any order of the secretary of state, is made a misdemeanor and punishable by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail for not less than 10 days nor more than one year, or by both such fine and imprisonment. [1-3] Appellant's first contention is that the act contravenes the equal protection and due process clauses of the Fourteenth Amendment to the federal Constitution and section 2 of article 2 of the state Constitution, that no person shall be deprived of life, liberty, or property without due process of law. The equality clause of the Fourteenth Amendment does not deprive a state of its power to pass laws for the protection of the public health, safety, and morals, and the promotion of the general welfare. The General Assembly has a wide discretion in the enactment of such laws, and in pursuance of objects within the scope of its powers may enact laws of limited or particular application so far as persons and property affected are concerned. Such a statute is valid when it applies equally and uniformly to all persons similarly situated, but it is in contravention of the equality clause where the classification or discrimination made by it is unreasonable or has no substantial relation to the object of the act. A statute which applies to one city, only, does not deny the equal protection of the laws where it is based on some real distinction between the particular city and the other territory of the state. New York Tenement House Department v. Moeschen, 179 N. Y. 325, 72 N. E. 231; Moeschen v. New York Tenement House Department, 203 U. S. 583, 27 S. Ct. 781, 51 L. Ed. 328. The state, and its municipal corporations under their delegated powers, may regulate the use of streets and highways where no merely arbitrary discriminations are made. The density and continuity of traffic upon the streets of large cities justify measures to safeguard the public from the peculiar and additional dangers which arise out of the operation of motor vehicles in such cities. Streets are primarily devoted to use by the public in the ordinary way. The state may determine that such use of streets shall be preferred over their use by carriers for hire. The operation of vehicles in streets for purposes of gain is extraordinary and generally may be prohibited, or may be permitted upon such conditions as the Legislature may prescribe. The power to exclude includes, for the most part, the power to permit upon conditions. An occupation or Section 42c provides that if any bond or business which may be carried on by permis Section 42b provides for the filing with the secretary of state of an application for his approval of the bond or insurance policy tendered under the provisions of the act, and if the secretary of state shall determine that such bond or policy complies with the act he shall accept the bond or policy and issue to the applicant a certificate stating that he has, in respect to the vehicle described therein, complied with the provisions of the act. |