excludes it from the classification. It applies equally to every county of a certain population, regardless of wealth, and to every municipality or taxing district in such county, regardless of the population, wealth, or any other characteristic of the municipality or taxing district, except its location in such a county. It assumes to regulate the powers of small municipalities with a population of 1,500, and the city of Chicago with a population of 2,000,000. The legislature did not provide that districts with a certain number of taxing authorities or with certain wealth should be included, and did not bring, or attempt to bring, within its operation all municipalities or taxing districts in the same situation or circumstances in that regard.

It is also said by counsel that the legislature had in view what they say is a notorious fact, that in Cook county vast amounts of personal property had never been returned by the owners, and had gone entirely untaxed; that to induce the people to be honest, and not to make false returns of their taxable property, but to bear their just portion of the public burdens, the legislature might properly provide that they would not have to pay more than a certain rate in the aggregate; that it was known that any truthful return of property in that county would enormously increase the assessment; and that these facts furnish a natural and reasonable basis for this special law. It is further asserted that the legislature enacted the provision in question as a promise to the taxpayers of that particular county that if they would make honest returns of their property they should have the benefit of the limitation; that the offer was largely accepted, and the anticipated result realized; and that the courts should adhere to the bargain. None of these statements have any foundation in the record, and, if they had, the reasoning is not applicable on the question of the constitutionality of the statute, which is the only question before the court. The reasons which counsel say operated on the minds of the legislators in enacting the statute cannot be ground for holding valid a law passed in violation of a constitutional provision. Whatever merit there may be in an argument that taxpayers of a particular county have been accustomed to make false returns of their property, and to escape the burdens of taxation, which the law contemplates shall fall equally upon all in proportion to the value of their property, and that they have been deceived and betrayed into truthful disclosures and obedience to the law because of the supposed bargain, there is no evidence whatever of the facts so alleged and insisted upon by counsel. We are unable to consider such argument or make it a basis for our decision. If the law is local and special in its character, and within the enumerated cases prohibited by the constitution, we must declare it invalid. These are all the arguments in support of the provision, and none of them are sufficient to sustain it.

In awarding the writ in the case of the board of education, the circuit court deducted from the amount levied by the city council for building purposes the sum of $625,500, and the defendant in error in that case as signs a cross error upon that action of the court. The board of education is required to communicate to the city council of the city of Chicago respecting the schools and school funds and the management thereof, and the law authorizes the city council, in making its appropriations for school purposes and levying taxes, to levy a tax not exceeding 21⁄2 per cent. for educational and 22 per cent. for building purposes. The board of education in this case made a requisition for the fiscal year for educational purposes (less the revenue from the school fund) of $5,524,161.17, which was appropriated and levied by the city council, and about this tax there is no dispute. The board also made requisition for $2,000,000, which purported to be for building purposes and other expenses which, under the law, are not building purposes. The council made the appropriation of $2,000.000 accordingly, and included it in the ordinance levying taxes in a lump sum. The court made an investigation of the separate amounts which, by the record of the board of education, went to make up the $2,000,000, and allowed that portion which was for the purchase of school-house sites, new buildings, and permanent improvements, and pro rata of loss and cost of collection, but deducted the other items, amounting to said sum of $625,500. The argument in support of the cross error assigned is that the city council had power to levy a tax not exceeding 21⁄2 per cent. for educational purposes alone; that the entire tax levied for educational and building purposes was less than said rate of 21⁄2 per cent.; and that, therefore, the items for educational purposes included in the total for building purposes are valid.

It is true that the council had power to levy as much as the whole amount which was levied. and might have levied it for educational purposes alone, if required for that purpose, but it was not all required or levied for that purpose. The statute authorizes a levy for two separate purposes, and requires the amount to be levied for each to be levied separately, in specific sums. The certified copy of the ordinance was the only warrant to the defendant for extending the tax, and some of the items included in the gross sum for building purposes show for themselves that they were not for such purposes, and there was no way for the clerk to separate them. Under such a levy, the defendant was not required to extend any of the tax of $2,000,000. The ordinance showed that a part of that sum was for general repairs, incidental expenses, and other things not included in building purposes. The ordinary expenses of the school and ordinary repairs are included within the tax levied for educational purposes, and the tax for building purposes is to provide means

necessary to meet the building of school house. O'Day v. People, 171 Ill. 293, 49 N. E. 504. The relator could not have compelled the defendant to extend any portion of the tax where the levy furnished no means of showing what was legal and what was not, and the action of the court in making the investigation, and compelling a levy of that portion which was actually intended for building purposes, was in their favor. Some of the items excluded may have been fairly included under the head of "building purposes," but we do not consider that question, for the reason that the court might properly have refused relief as to the whole. We cannot assent to the proposition that, because the board of education might have levied a tax which would have been valid, a tax not authorized by the statute should be held valid. To say that a city council or board of education may commingle the educational and building funds, or levy sums for one purpose and apply them to another, would defeat the intention of the statute, and be disastrous to the taxpayer. The judgment of the circuit court is affirmed. Judgment affirmed.

MAGRUDER, J. I do not concur in all that is said in this opinion.

(185 Ill. 445)

JOHNSTON v. HIRSCHBERG. (Supreme Court of Illinois. April 17, 1900.) INSTRUCTIONS-APPEAL.

Where a sheriff's defense to an action for wrongfully seizing tobacco belonging to plaintiff under an attachment against plaintiff's vendor was that the sale to plaintiff was fraudulent, and the jury had several times been instructed as to the elements of fraudulent intent and want of good faith in the sale, error in omitting such elements in an instruction to find for plaintiff if he owned and was in possession of the tobacco was harmless.

Appeal from appellate court, Second district.

Action by Abraham M. Hirschberg against Charles E. Johnston. From a judgment for plaintiff, defendant appeals. Affirmed.

On October 17, 1895, Gans Bros. & Rosenthal sued out of the county court of Peoria county a writ of attachment against Isaac D. Hurwitz, and placed it in the hands of appellant, Charles E. Johnston, the sheriff of Peoria county, who levied upon and took possession of a quantity of tobacco in the possession of appellee herein, who claimed to own it. The ground for the attachment was that Hurwitz had fraudulently sold the property to Hirschberg for the purpose of defrauding his creditors. The sheriff removed the property, and it has not been returned to appellee. On January 11, 1896, appellee brought this action of trespass against appellant for unlawfully seizing and disposing of the tobacco. Appellant filed a plea of not guilty, and pleas setting out the alleged fraudulent character of the sale by Hurwitz to appellee. Upon issues

| joined, and trial by jury, judgment was rendered in favor of appellant, which, on appeal to the appellate court, was reversed, and the cause remanded for a new trial, on account of erroneous instructions. A second trial resulted in a judgment for $1,650 in favor of appellee. On appeal to the appellate court the judgment was affirmed, and appellant prosecutes this further appeal. A complete statement of the case will be found in the opinion of the appellate court, by Dibell, J. (85 Ill. App. 47); but the foregoing will suffice for a proper understanding of the questions cognizable in this court.

H. C. Fuller (James H. Sedgwick, of counsel), for appellant. Isaac C. Edwards and Isaac J. Levinson, for appellee.

WILKIN, J. (after stating the facts). The questions of fact involved in this controversy have been found adversely to appellant by the judgment of the appellate court, which finding is conclusive here. The brief of appellant does not comply with the rule of this court, in that it consists of several briefs used in the appellate court, refiled here. However, we have examined the cause upon its merits, and fail to find in the record any reversible error. The only contention urged by appellant is that the third instruction given for appellee was erroneous. That instruction was as follows: "The court instructs the jury that if they believe from the evidence that the plaintiff was the owner of the tobacco in question, and that he had possession of the same, and the defendant, by his deputy, took and carried away the tobacco on a writ of attachment against one Isaac D. Hurwitz, the jury should find the issues for the plaintiff." It is insisted that it is defective, in that it does not contain the element of purchase and possession in good faith. As said by the appellate court, it is subject to the criticism. The elements of fraudulent intent and want of good faith in the alleged sale and purchase were clearly stated in several instructions given at the instance of the plaintiff, and at least one given on behalf of the defendant, and we concur in the view of the appellate court that the jury could not have been misled by the omission in the third. As a whole, the instructions fairly presented the law of the case. The judgment of the appellate court is right, and will be affirmed. Judgment affirmed.

WHITE v. WAGAR.

(185 Ill. 195)

(Supreme Court of Illinois. April 17, 1900.) SEARCHES AND SEIZURES-WARRANTS-SEIZURE OF PERSON-FAILURE TO DIRECT-VALIDITY OF PROCEEDINGS LABELS AND TRADE-MARKS-FORGERY-CERTIORARI.

1. Labels and trade-marks are not the subject of forgery at common law or by statute, and hence are not forged instruments, within Cr. Code, div. 8, c. 38, § 2, providing that a justice of the peace may issue a search warrant for

forged bank notes and other forged instru

ments.

2. Under Cr. Code, div. 8, c. 38, § 3, providing that a search warrant shall direct the officer to bring the property and the person in whose possession it is found to the justice issuing the warrant, where a warrant failed to direct the bringing in of the person the proceeding was illegal and void, though the person appeared.

3. Certiorari will lie to review the action of a justice of the peace in illegally issuing a search warrant, though defendant also had a remedy by appeal.

Appeal from appellate court, First district. Certiorari by Milo H. Wagar against Randall H. White. From a judgment of the appellate court (83 Ill. App. 592) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an appeal from a judgment of the appellate court affirming a judgment of the circuit court of Cook county, wherein the circuit court, upon the petition of Milo H. Wagar, the appellee, for a writ of certiorari as at common law, entered a judgment that "the record and proceedings brought before it in the case of the people of the state of Illinois against No. 265 Fifth avenue, Chicago, Cook county, Illinois, before Randall H. White, a justice of the peace in and for the town of South Chicago, in the county of Cook and state of Illinois, are manifestly illegal, erroneous, and void in law, and wholly without effect, and that such proceedings are hereby vacated, annulled, and set aside." Randall H. White, the appellant, was the justice of the peace before whom the judgment was rendered which was called in question by the petition for certiorari. The complaint made before the justice, as shown by the petition, was substantially as follows: "William M. Copeland, being duly sworn, upon his oath deposes and says that certain forged and counterfeit trade-marks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, purporting to be the true and genuine trade-marks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures of James E. Pepper & Co., of Lexington, Kentucky; the same as to J. A. Gilka, of the city of Berlin, Germany; also, Dr. J. G. B. Siegert & Hijos, of Port of Spain, Island of Trinidad, British West Indies; John De Kuyper & Son, Rotterdam, Holland; Martell & Co., of Cognac, France; Benedictine Co., of Fecamp, France; W. A. Gaines & Co., of Frankfort, Kentucky; Coates & Co., Plymouth, England; Booth & Co., London, England; Martini & Rossi, Italy; Joseph F. Boll, of Isere. France; John Jameson & Son, Limited, Dublin, Ireland; G. H. Mumm & Co., Reims, France; Edward Pernod, Couvet, Switzerland; H. Underberg-Albrecht, Rheinberg, Germany; Field, Son & Co., of London, England; Louis Roederer, of Reims, France; Paris, Allen & Co., of New York City; Axel Bagge & Co., of Goteborg, Sweden; Jorgen B. Lysholm, of Throndhjem, Norway; John

Ramsay, of Port Ellen, Islay, Scotland; L. Garnier, of France; E. H. Taylor, Jr., & Co., of Frankfort, Kentucky; Hiram Walker & Sons, Limited, of Canada; E. & J. Burke, Limited, of Dublin, Ireland; Cook, Bernheimer & Co., of New York City; also, certain tools, machinery, and printing presses, cuts, type, and other materials used for making the said forged and counterfeit trade-marks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, which said forged and counterfeit trade-marks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, and the tools, machinery, printing presses, cuts, type, and other materials for making the same, were forged and counterfeited, and used for the unlawful purpose of cheating and defrauding some person, body corporate, by some person or persons unknown to this affiant. And he verily believes that a large number of said forged and counterfeit trade-marks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, and the tools, machinery, printing presses, type, cuts, and other materials for making the same, are now concealed in and about the building and premises of No. 265 Fifth avenue, and the basement connected therewith, all in the city of Chicago, county of Cook, and state of Illinois, and that the following are some of the reasons for such belief: First, that one of the agents of said affiant reports to him that he, said agent, saw shipped away from said premises on the 18th day of January, 1898, about twenty cases of counterfeit and bogus Martini & Rossi Vermouth, having stamped thereon forged marks and signatures purporting to be the true and genuine marks and signatures of Martini & Rossi, and also reports that he saw on said date a large number of forged and counterfeit cases, purporting to be the true and genuine cases of James Hennessy & Co., stored on said premises."

Upon the complaint so made the justice issued a warrant, which, among other things, contained the following: "We therefore command you, with necessary and proper assistance, to enter in the daytime the said premises, and there diligently search for said goods and chattels, and, if the same or any part thereof be found on such search, that you bring the goods and chattels so found before the said justice, or, in case of his absence, before some other justice of the peace in said Cook county, to be disposed of according to law." The warrant was delivered to William Breen, a constable, and by him returned on January 20, 1898, with the following indorsement thereon: "Executed the within writ by searching the within-mentioned premises between sunrise and sunset of the 19th day of January, 1898, and taking therefrom articles found in the possession of M. H. Wagar, to wit: Fifty-two bottles alleged Hennessy brandy, having forged and

counterfeit labels attached; twenty-three bottles alleged Chartreuse, having forged and counterfeit labels attached; one case alleged Angostura Bitters, pint bottles, as described in complaint; one case alleged Angostura Bitters, quart bottles, having forged and counterfeit labels, as shown in the complaint; one quart bottle alleged Angostura Bitters, having forged and counterfeit labels attached, as described in the complaint. Dated this 20th day of January, 1898. Costs and expenses, eight men and team, $20. Wm. Breen, Constable." The articles seized, in part, having been brought before the justice of the peace, a hearing was had, and the justice adjudged the labels, trade-marks, names, and signatures attached to certain of the bottles so seized to be forged and counterfeit labels, trade-marks, names, and signatures, and directed that said labels, trade-marks, names, and signatures attached to said bottles so produced be safely kept by said William Breen so long as necessary, for the purpose of being produced or used in evidence on any trial, and, as soon as might be afterwards, to be burned or otherwise destroyed under the direction of the said justice of the peace, appellant herein, and as to the other labels, trade-marks, names, and signatures attached to the articles as mentioned in said constable's return, adjudged that each and all were forged and counterfeit labels, trade-marks, names, and signatures attached to bottles, as alleged, and found upon appellee's premises.

Charlton & Copeland, for appellant. RanIdall H. White, in pro. per.

A jus

CRAIG, J. (after stating the facts). tice of the peace in this state is a court of limited jurisdiction. It has and can exercise no powers except those conferred by the statute, and, whenever it assumes jurisdiction in a case not conferred by the statute, its acts are null and void. Moore, Justice, § 36, p. 18; Robinson v. Harlan, 1 Scam. 237; Bowers v. Green, Id. 42; Evans v. Pierce, 2 Scam. 468. It is also well settled that a justice of the peace has no jurisdiction to issue a search warrant except in cases provided by law. Moore, Cr. Law, § 141; Cooley, Const. Lim. (6th Ed.) 364. It therefore becomes important to determine what power has been conferred upon justices of the peace to issue search warrants. The authority to issue a search warrant in this state will be found in division 8 of chapter 38 of the Criminal Code, section 1 of which provides that a warrant may issue for stolen or embezzled goods. Section 2 provides that any judge or justice may, on like complaint made on oath, issue search warrants, when satisfied that there is a reasonable cause, in four instances: (1) "To search for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery or materials prepared or provided for making either

of them"; (2) obscene books; (3) lottery tickets, etc.; (4) gaming apparatus. The appellant, as we understand the argument, relies upon the following clause of the statute: "To search for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery or materials prepared or provided for making either of them," as conferring the power to issue the search warrant in question. The contention is that forged and counterfeit trade-marks, labels, caps, corks, cases, bottles, boxes, dies, stamps, stencils, plates, names, and signatures, together with tools, machinery, printing presses, type, cuts, and other materials for making the same, are embraced within the meaning of the clause "other forged instruments," and it is insisted that the words "other forged instruments" are sufficiently comprehensive to include such articles. If, however, labels and trade-marks are not properly embraced within the subject of forgery, then they will not fall within the designation of forged instruments. The weight of authority seems to be that labels and trade-marks are not the subject of forgery at common law. In 2 Bish. Cr. Law (8th Ed.) § 536, the author says: "In England it was the business of one Borwick to put up for the market, inclosed in printed wrappers, two kinds of powders, called, respectively, 'Borwick's Baking Powders' and 'Borwick's Egg Powders.' Another printed wrappers of his own, imitating these, and put in them his own powders, selling them as Borwick's. For this he was indicted as for forgery, but the judges deemed that, though he was probably criminally liable in another form, what he did came short of this offense. And plainly not so. In words employed by the learned judges, the genuine label put by Borwick upon his powders could not be deemed a writing of legal validity, however useful it was to him as an advertisement or a trademark." Reg. v. Smith, 8 Cox, Cr. Cas. 32, is a leading case on the question. In the decision of the case, Pollock, C. B., said: "The defendant may have been guilty of obtaining money under false pretenses. Of that there can be no doubt. But the real offense here was the issuing of a false wrapper, and inclosing false stuff within it. The issuing of this wrapper without the stuff therein would be no offense. In the printing of these wrappers there is no offense. The real offense is the issuing of them with the fraudulent matter in them. * * They are merely wrappers, and, in their present shape, I doubt whether they are anything like a document or instrument which is the subject of forgery at common law. To say that they belong to that class of instruments seems to me to be confounding things which are essentially different. It might as well be said that, if one tradesman used brown paper for wrappers of the same description as another tradesman, he could be accused of forging the brown paper." Justice Willes said: "This

is not one of the different kinds of instruments which may be the subject of forgery. It is not made the subject of forgery simply by reason of the assertion of that which is false. In cases like the present the remedy is well known. The prosecutor may, if he pleases, file a bill in equity to restrain the defendant from using the wrapper, and he may also bring an action at law for damages, or he may indict him for obtaining money under false pretenses; but to convert this into the offense of forgery would be to strain the rule of law." As establishing a contrary doctrine, we have been referred to 8 Am. & Eng. Enc. Law, 478, where the author says: "The false writing of any instrument calculated to deceive, and which, if genuine, might subject the person signing it to damages, is forgery,—such as * * *trademarks or labels,-where it could be made the basis of an action for deceit or warranty against the alleged issuer." In support of the doctrine announced, Reg. v. Smith, supra, is cited; but, as has been seen, that case lays down a different rule. Whart. Cr. Law (10th Ed.) § 690, is also cited, where the author, in substance, says that, when a trade-mark or label can be made a basis for a suit against the alleged issuer in an action for deceit or warranty, then to falsely appropriate such trade-mark or label is forgery. But here, whether the trade-marks or labels are of the character named by the author, so as to bring them within the rule indicated by him, does not appear from the proceedings before the justice. As we understand it, forgery, at common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or a foundation of legal liability. 2 Bish. Cr. Law, § 513. The trademarks and labels in question do not, as we understand it, fall within the definition indicated.

But it is argued that the articles mentioned in the complaint upon which the search warrant was issued may be and are included within the words of the statute "other forged instruments," and, hence, if not authorized at common law, they are authorized by statute. In Shirk v. People, 121 Ill. 61, 11 N. E. 888, following a well-established rule of the construction of statutes, it was held that under a statute making it criminal to make or pass a fictitious bill, note, or check, or other instrument in writing for the payment of money, the words "other instruments in writing" will only include such instruments as are of the same class or kind as those enumerated, such as money, bonds, duebills, and other instruments in writing containing an absolute, unconditional promise or obligation to pay a sum of money or personal property. The same doctrine was reiterated in the late case of Gundling v. City of Chicago, 176 Ill. 340, 52 N. E. 44. The same rule was declared in Cecil v. Green, 161 Ill. 265, 43 N. E. 1105, 32 L. R. A. 566, and Wilson v. Board, 133 III.

*

443, 27 N. E. 203. See, also, Sandiman v. Breach, 7 Earn. & C. 99. Langdon v. People, 133 Ill. 382, 24 N. E. 874, has been cited as an authority sustaining appellant's position. There is, however, nothing in that case in conflict with the authorities above cited. There Langdon was indicted for forging the signature of a county judge, under section 114 of division 1 of the Criminal Code, which provides that "every person who shall forge or counterfeit the signature of any public officer * shall be imprisoned in the penitentiary," etc.; and it was held that the words "other forged instruments" were broad enough to cover a forged certificate of a county judge. But there is a wide difference between an instrument containing the forged signature of a public officer, and trade-marks and labels. A person found guilty of forging the former, under section 114 of division 1 of the Criminal Code, shall be imprisoned in the penitentiary not less than 1 year nor more than 20 years; but the falsification of the latter articles, under sections 115 and 116, is not forgery, but a mere misdemeanor, for which a fine not exceeding $200 may be imposed. We find no provision of the Criminal Code that the simulation of trade-marks and labels or names and signatures is forgery. They are not of the same class or kind as counterfeit or spurious coin and forged bank notes, and hence they cannot be regarded as forged instruments, within the meaning of the statute. In the Langdon Case the public document had been seized and taken from the possession of the defendant under a search warrant, and the vital question was whether it should be admitted in evidence; and in the decision of the case we held that, although papers may be illegally taken from the possession of a party against whom they are offered, it is no objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained. If, therefore, the statute did not authorize a search warrant for bogus trade-marks, labels, names, and signatures, as we are satisfied it did not, the justice of the peace had no jurisdiction to issue a search warrant, and his action was void.

There is another fatal defect in the proceeding. The search warrant issued by the justice directed the officer to diligently search for the goods and chattels, and, if the same or any part thereof be found, to bring the same before the justice of the peace; but the warrant nowhere contains a direction that he shall also bring with him the person in whose possession the goods are found. Section 3 of division 8 of the Criminal Code (Hurd's Rev. St. 1897) expressly provides that the warrant shall direct the officer "to bring such stolen property or other things, when found, and the person in whose possession they are found, to the judge or justice of the peace who issued the warrant." In Bish. New Cr. Proc. § 243, the rule is laid down that a search warrant must contain every statutory require