sulting from their violation of the statute for which they are to be held pecuniarily responsible, and not simply the infraction of the statute in matters of procedure without loss to the district. The statute, so far as it is penal, must, like all such statutes, be strictly construed, and should not be extended to cases not clearly within its provisions.

Counsel for appellants cite cases involving contracts made by school directors for the hiring of teachers who had not procured the necessary certificates of qualification, and insist that the case at bar must be governed by the same principles. We see a marked distinction. By the express provisions of the statute the directors are forbidden to pay any public money to a teacher who does not hold the necessary certificate, and any moneys so expended would, by the plain meaning of the statute, be lost to the school fund, for the reason that such fund could not be used for such a purpose. But in the case at bar the contract was one that might have been ratified by the directors proceeding as required by the statute. If it had been ratified, no one would claim that the amount expended would have been lost to the district. It is said, however, that whether the well was necessary or not was a question to be decided by the directors at a regular or special meeting, where each had the right to be heard, and where the question, after proper consideration, would be decided by a majority, and that the defendants cannot proceed illegally, and then shield themselves from liability by proving that the work was necessary, and the cost reasonable. This contention is more plausible than sound, for, while it was the duty of the directors to determine whether or not such a well was necessary, their decision in the premises would not conclude the courts where it is shown that the necessity in fact existed. The fact that it was necessary, and the cost reasonable, is established in this case, and the finding is conclusive upon this court. Such fact could not, of course, shield appellees from any liability which the statute has fixed for the violation of its provisions, but it is important in determining whether or not the particular liability sued for-that is, the alleged loss to the district-has any existence, or arose from the illegal action of the defendants. While such officers should be held to a careful compliance with the laws, there must, under the provisions of the statute in question, be a loss before there can be a recovery against them. The judgment of the appellate court must be affirmed. Judgment affirmed.

(186 Ill. 331)

SCHOOL DIRECTORS DIST. NO. 7 v. PEOPLE ex rel. HEINREICHS. (Supreme Court of Illinois. June 21, 1900.) SCHOOL DIRECTORS-ESTABLISHING FREE SCHOOL.

Directors of a school district are not discharged from their duty of establishing and

maintaining a free school in the district because the proposition to build a school house failed to carry.

Appeal from circuit court, Ford county; John H. Moffett, Judge.

Mandamus, on the relation of Henry Heinreichs, against the school directors of district No. 7. A peremptory writ was awarded, and defendants appeal. Affirmed.

Tipton & Tipton, S. P. Rady, and Cloud & Moffett, for appellants. Schneider & Schneider and A. L. Phillips, for appellee.

CARTER, J. The court below overruled appellants' demurrer to the relator's petition, and, appellants refusing to plead further, entered final judgment awarding a peremptory writ of mandamus, commanding the appellants, as school directors of district No. 7, township 24, range 7, in said county of Ford, to take the necessary legal steps at once to establish a free school in said district out of moneys in the hands of the treasurer to the credit of said district, and to maintain the same during the school year as long as such funds will permit, and to that end to procure any suitable room or building in the district; and if no other room or building more suitable can be procured than the room offered by relator, Henry Heinreichs, that they accept, equip, and use the same for such school according to his (said Heinreichs') offer mentioned in the bill, without rent or charge, if they elect not to allow any rental therefor; that they employ a competent teacher, to be paid out of such fund, to teach said school; that as soon as the law will permit they proceed to take proper steps to secure a levy and extension of taxes upon the taxable property in the district to maintain a school in the district for at least 110 days of the ensuing school year. The appellants, who are the school directors commanded by the said judgment of the court below to perform the duties, as such directors, enjoined upon them by the statute, have appealed, and assigned for error that the petition was not sufficient in law, and that the demurrer should have been sustained.

We are of the opinion that the petition is sufficient in its averments to show a clear right to the writ, and that the court below decided correctly in overruling the various technical objections urged by appellants in support of their demurrer. It seems to have been supposed by them that, because the proposition to build a school house failed to carry, they were excused from the duty of establishing any school in the district. In this they were mistaken. The petition shows that this district was formed and the directors elected in June, 1898; that they organized by electing one of their number president and another secretary or clerk of the board, but that notwithstanding there was sufficient money in the treasury for the purpose, and that they have been requested by the relator and others, who are taxpayers and legal voters of the district, to establish a school in

the district, and to provide a suitable room and employ a competent teacher therefor, they have neglected and refused to do so. The petition shows that sufficient children of proper school age reside in the district for such a school, and that by the neglect and omission of duty by the directors they are denied school privileges; that no school tax has been levied since the district was created; that the relator, Heinreichs, built a sufficient and suitable room for a school room near the center of the district, and easy of access from all parts of the district, and tendered the same to the directors for a school room, with or without the payment of rent, at the option of the directors, but that they refused to accept the same, although they acknowledged its suitability. The petition shows that onehalf of the lands in the district are owned by one man; that the election upon the proposition to build a school house was held at his house, and that he had previously given notice to some of the legal voters not to trespass on his lands, and that as a result such voters remained away from the polls, and that in this and other improper ways he had caused the defeat of the proposition to build. But, whatever may have been the cause of the refusal of the legal voters to sanction the proposition to build a school house, the directors were not discharged from their duty to establish and maintain a school in the district. They have power to obtain, by lease, a suitable room or rooms for the purpose without submitting that question to the electors, and the petition shows that they can obtain such a room at small cost, and even without any charge whatever. We deem it unnecessary to follow counsel in their argument in support of their special grounds of demurrer. We regard the petition as sufficiently certain and specific, and as showing a clear case of neglect and disregard of official duty by these directors. The judgment of the court below is right, and it will be affirmed. Judgment affirmed.

(186 Ill. 256)

FARLOW v. TOWN OF CAMP POINT. (Supreme Court of Illinois. June 21, 1900.) OBSTRUCTING HIGHWAY - VARIANCE — OBJECTION ON APPEAL-HEARSAY

-INSTRUCTIONS,

1. An instruction to find a road by prescription, if the jury find a certain thing which there is no evidence to prove, is erroneous.

2. Admission of hearsay evidence that defendant, in rebuilding his fence, had moved it into the road, as to which there was a direct conflict in the evidence, is prejudicial.

3. Where the notice served on defendant recited that there was an obstruction in the road, consisting of a fence running the whole length of his quarter section, and required him to remove the whole fence, and the complaint served on him charged that the obstruction consisted of the whole fence, plaintiff must prove the obstruction as alleged.

4. The question of variance between the notice and the complaint, which charged defendant with -obstructing a road with the whole fence running the length of his quarter section, and the evidence, may be raised for the first time on ap

peal; plaintiff having attempted to prove that the whole fence was an obstruction, and it being only in the instructions that the jury were authorized to find defendant guilty if any part of the fence was within the road.

Appeal from circuit court, Adams county; John C. Broady, Judge.

Suit by the town of Camp Point against Samuel Farlow. Judgment for plaintiff. Defendant appeals. Reversed.

C. A. Babcock and Hamilton & Woods, for appellant. Govert & Pape, for appellee.

CARTWRIGHT, J. This suit was begun by appellee against appellant before a justice of the peace by filing a complaint of the commissioners of highways of the town of Camp Point, charging appellant with obstructing a highway of said town, and failing to remove the obstruction after he had been ordered by said commissioners to remove the same. After a change of venue to another justice of the peace there was a trial by jury, and appellant was found guilty, and judgment was rendered against him. On appeal to the circuit court there was a verdict of guilty, and judgment was again rendered against him for $25 and costs.

The defendant owns the N. E. 4 of section 27, in the town of Camp Point, and a public highway half a mile long runs north and south between said quarter and the N. W. 4. The dispute is as to the width of that road. On July 1, 1897, notice was served upon defendant reciting that there was an obstruction in said road "consisting of a fence running the whole length of said quarter north and south, and about seven or eight feet east of the west line of said quarter," and notifying him that unless he should remove the same within 90 days from the service of the notice the commissioners would proceed against him for the obstruction of a public highway. The complaint filed contained five paragraphs, in each of which the alleged obstruction was described as "a fence running the whole length of said quarter north and south, and about seven or eight feet east of the west line of said quarter." The suit was commenced March 10, 1898. The whole fence charged to be an obstruction was built of rails. The evidence for both parties at the trial was that the south 104 rods of the fence had remained in the same place that it stood at the time of the notice and trial since the year 1863 or 1864, and that the remainder of the fence had stood in the same place since the year 1884. About this there was no dispute. It was also an uncontroverted fact that prior to 1884 the fence from the north end of the south 104 rods to the north line of the quarter did not follow a direct line. Just north of the 104 rods there was a swale or low place, and when the fence was extended north there was a jog at this point, and the fence deflected eastward six or eight feet around this low place, and from there north the fence was crooked, running at varying

distances a few feet eastward from a direct line with the south 104 rods. In 1884 the entire fence was rebuilt, the south 104 rods on the same line where it had previously been, and the fence north was straightened and brought into line with said south portion. The only controversy as to the location of any part of the fence at any time was whether the south 104 rods was set over to the west in 1863 or 1864.

The history of the road as shown at the trial is as follows: "It was never laid out as a public highway. When the northwest quarter was uninclosed there had been a road running diagonally across it from the southwest to the northeast, called the "Columbus-Pulaski Road." This old road was closed up in 1848 or 1849, and fences were built so as to leave a lane open between these two quarters, running from the south northward, and the road in question began to be used. The land owned by defendant was then owned by his father, William Farlow, and the fence on that land ran north from the south line 104 rods. The fence on the other side of the lane did not extend quite so far north. About that time some work was done in the low place about the north end of this fence, but the evidence did not show where the travel went north of that low place. William Farlow died in 1858, and in the partition of his estate the part so fenced was set off to his widow. In 1863 or 1864 her son George Farlow, a brother of defendant, rebuilt this fence. Two witnesses for the plaintiff, who lived on the other side of the road, testified that the fence was then set out 10 or 12 feet into what had been the lane, and which is claimed to have been a public road. George Farlow, who built the fence, and his brother, the defendant, testified that it was laid in the same worm or line as the old fence, and that all that was done was to relay the fence in the same worm, with new rails in the bottom, and new chunks under the intersections. This fence has remained in the same place ever since.

The 42 acres in the northwest corner of the northeast quarter, lying north of the inclosed land set off to the widow, was assigned to George Farlow. He went into the army in July, 1861, and remained 11 months. During that time his brother extended the rail fence northward 38 or 40 rods. At the starting point the jog or deflection to the east was made for the apparent purpose of avoiding laying the fence through the mud, and from there on north it was in an irregular line, varying a few feet one way or the other, without any apparent design or attempt to follow a particular line. The fence was built without the direction or knowledge of the owner, George Farlow, and he testified that when he came home he found it, and just let it stand where it was, supposing it was intended as an extension of the other fence. Afterwards, in 1866, he continued the same kind of a fence up to the north line.

The claim of the plaintiff is that the entire

fence is an obstruction of a public highway; that the south 104 rods was obstructed in 1863 or 1864 by setting the fence out, and the obstruction has remained there ever since; and that the north part was obstructed in 1884, when the crooked line was straightened out, and the north part of the fence put in line with the south part. It is contended that the land where this fence was put was a highway throughout its entire length, both by prescription and dedication, and instructions were given to the jury upon each of those theories.

It will be seen from the undisputed facts that there was no highway by prescription, either where the south 104 rods of the fence was located, or at the north end, where the fence was first built and the land inclosed in 1866. According to the evidence for the plaintiff, the road had not been in existence, and there was no user of it, 20 years before the south 104 rods of the fence was reset, in 1863 or 1864, so that there was no highway by prescription when the alleged obstruction was made. If there was a highway there at all, it was created by dedication. According to the evidence for the defendant, the fence has always stood in the same place where it was built in 1848 or 1849, and there was never any user at the place claimed to be obstructed. The north end was not inclosed until 1866, and the evidence does not show where the travel went before that time. There is nothing in the record to show whether there were connecting roads north of this or where they ran. At any rate, if there was any use of the land it was merely passive, and not sufficient to show claim of right on the part of the public or to establish a right by prescription. Town of Brushy Mound v. McClintock, 150 Ill. 129, 36 N. E. 976.

The fifth instruction given at the request of plaintiff was on the subject of prescription, and was as follows: "The court instructs the jury that if they believe, from the evidence in the case, that the road testified to by the witnesses had, immediately prior to and up to the year 1884, been continuously and uninterruptedly used for twenty years or more as a public road, adversely, under claim of right, by the public, for the full width of the space between the fences, if any, as they were prior to said year located, and that such use was with the knowledge and acquiescence of the owners of the land adjoining said road, then the law presumes a grant or dedication of the ground so occupied by the public to the use of the public for a public road, and in such case the said road, for the full width of the space between the fences, if any, as they were located prior to said year 1884, should be found by the jury to have been, immediately prior to and up to said year 1884, a public road estab lished by prescription." Inasmuch as there was no evidence tending to prove that the public had used the disputed portion where the south 104 rods of the fence stood at any

time for 20 years, but even the evidence for the plaintiff showed that they had not, the instruction should not have been given. Furthermore, there was no evidence that the public had used the north portion, where the fence was built in 1866, for 20 years before 1884, and as to that part the instruction was not based upon any evidence.

The sixth instruction given at the request of plaintiff was as follows: "The court instructs the jury that if they believe, from the evidence in the case, that the road testified to by the witnesses was from 1863, and thereafter for more than twenty years, fenced on both sides, and was used and traveled by the public without interference by the abutting owners, and that during said period of twenty years such use by the public was adverse, under claim of right, continuous, and uninterrupted, and that during said period the right of the public to use the road at all times and for any purpose was not called in question, and that the owners of the land on each side of the road had knowledge of such use of it by the public, and acquiesced in such use for the period of twenty years above named, and that the line of travel was during said period for the width of the road between such fences, then the court instructs the jury that they should find that at the expiration of said period of twenty years said road, for the width of the same between such fences, became and was a public road by prescription." This instruction, too, was not based on the evidence. There was no evidence whatever that the road was fenced from 1863 for more than 20 years, but plaintiff proved that the fence was not extended to the north line until 1866, and also proved that the disputed portion, where the south 104 rods of fence is located, was not used or traveled by the public at all after 1863 or 1864. The plaintiff's two witnesses testified that the fence was reset in 1863 or 1864, so as to prevent any travel there.

As before stated, there was a direct conflict in the testimony as to whether the south 104 rods of the fence was set out from the old line when it was rebuilt, in 1863 or 1864; two witnesses testifying for the plaintiff that it was so set out, and two for the defendant that it was set in the same place as before. The jury were called upon to decide that question, and any error in the admission of evidence respecting it was necessarily of grave importance to the parties. It was about the only disputed fact in the case. The land on the opposite side of the road was owned by R. L. Booth, and on the cross-examination of the town clerk defendant's counsel asked the witness who made the complaint to the commissioners on which the prosecution was commenced, and the witness answered that the complaint was made by R. L. Booth. On redirect examination the plaintiff's counsel asked the witness what Booth said when he made the complaint.

Defendant's objection was overruled, and the witness was permitted to state that Booth said the defendant ought to be made to move his fence back, and that defendant was further in the road than he was. The defendant was not present, and it was error to admit to the jury the statement of Booth as to the merits of the case. The admission of hearsay evidence that the defendant was guilty was wrong, and must necessarily have been prejudicial.

If the evidence for the defendant was true, and the south 104 rods of the fence was in the place where it was originally built when the lane was opened, the defendant could not be required to remove it, and as to that part of the road had committed no offense. The instructions given for plaintiff authorized the jury to find him guilty of the charge made against him, of failing to remove the obstruction after notice, if any part of the fence throughout its whole length was in the public highway. Under the instructions the jury might find the defendant guilty although they believed his evidence as to the south 104 rods, and also believed that there was no highway where the fence built in 1866 was reset at the north end, if they should believe that the portion of the fence built in 1861 or 1862, from the jog northward, constituted an unlawful obstruction when moved on the straight line in 1884. The jury were told that if defendant had moved any part of the fence within the limits of the public road, and had been notified to remove said fence by the commissioners of highways, and had failed to do so, plaintiff was entitled to recover. The notice served described the fence as running the whole length of the quarter section. It required him to remove the whole fence, and the written complaint charged that the obstruction consisted of the whole fence, but the instructions directed a verdict against him if any part of the fence was in the public road. The party charged with obstructing a road is entitled to understand from the notice what place he is charged with having obstructed, so that he may ascertain what his rights are. Ferris v. Ward, 4 Gilman, 499. In this case the parties saw fit to give a written notice and to file a written complaint. The description in the notice and complaint was not a general description of a road charged to be obstructed, but they particularly described the part of the road obstructed, and the nature of the obstruction, and the description was material. Martin v. People, 23 Ill. 395; Town of Lewiston v. Proctor, 27 Ill. 414; Houston v. People, 63 Ill. 185.

It is argued that defendant should have raised the question of variance of the proof from the notice and complaint in the trial court, and that he cannot raise the objection here that the evidence only tended to prove that a small part of his fence was in the road. There was no time or place when he could have raised that question in the trial court. The plaintiff endeavored to prove the

complaint as made, and that the entire fence constituted an obstruction. It was only in the instructions that the jury were authorized to find the defendant guilty although the complaint was not proved as made. The plaintiff, having made a complaint in writing giving a particular description of the obstruction and the place obstructed, was bound to prove it. For the errors indicated, the judgment of the circuit court is reversed, and the cause remanded. Reversed and remanded.

(186 Ill. 34)

JETER v. HEADLEY. (Supreme Court of Illinois. June 21, 1900.) ELECTION CONTEST-PRESERVATION OF

BALLOTS.

Ballots returned to the county clerk are not shown to have been "carefully preserved" by him, as required by Election Law 1891, § 27 (Laws 1891, p. 118), so as to permit of their prevailing over the returns of the election officers, as to whom no misconduct is shown; the clerk and his deputies merely testifying that the ballots had not, to their knowledge, been interfered with; they having been kept in a vault in the clerk's office, the combination on the lock of which was very simple, and had not been changed during the seven years it had been in use; the vault being so situated that the clerks in the office, sitting at their desks, could not see the vault door; there being many keys that

would unlock the doors of the court house and the clerk's office; the bags containing the ballots, which were first put in the back of the vault, having afterwards been thrown on the floor, directly in front of the door, though the employés of the office said they had not disturbed them; and the seals on many of them being broken, and others of the bags being so that the ballots could be taken from them without interfering with the seals or fastenings.

Appeal from circuit court, Edgar county; H. Van Sellar, Judge.

Election contest by George M. Jeter against Stephen T, Headley. From an adverse judgment, contestant appeals. Affirmed.

H. A. Neal, J. E. Dyas, and F. C. Van Sellar, for appellant. H. S. Tanner, R. L. McKinlay, and Eads & Eads, for appellee.

WILKIN, J. These parties were rival candidates for county judge of Edgar county at the November election, 1898; appellant being the Republican, and appellee the Democratic, candidate. By the returns and canvass of the votes appellee was found to have received a majority of 68, and thereupon received a certificate and commission, and entered upon the duties of the office the first Monday of December of that year. Within the time fixed by statute, December 12, 1898, appellant filed his petition in the circuit court of that county to contest appellee's election. The only ground of contest set up in the petition was the alleged miscount of the ballots. Issue being joined, the cause was by agreement submitted to the circuit judge without the intervention of a jury. The original ballots were brought into court and recounted, the result showing that

appellant had received a majority of 16 votes over appellee. Upon the issue made and this evidence, the only question presented to the trial court for decision was whether or not the recount of the ballots should prevail over the returns of the election officers; and that question was decided in the negative, and an order entered September 1, 1899, dismissing the petition at contestant's cost. To reverse that judgment this appeal is prosecuted.

The law applicable to the case is not diffiIcult of ascertainment. Section 27 of the election law of 1891 (Laws 1891, p. 118), after prescribing the duties of the election judges in returning the ballots to the proper clerk or board of election commissioners, requires such officer to "carefully preserve said ballots for six months," at the expiration of which time they shall be destroyed, "provided, that if any contest of the election of any officer voted for at such election shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest is finally deter mined. In all cases of contested elections the parties contesting the same shall have the right to have said ballots opened and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest; but such ballots shall be opened only in open court or in open session of such body and in the presence of the officer having the custody thereof." It has been frequently held by this court that where it is satisfactorily shown that the ballots have been properly returned to the clerk or board of election commissioners, and securely and safely kept, so that there has been no opportunity to change them, they shall be regarded as the best evidence of the actual result of the election, and shall prevail over the count and return by the election judges, even though there is no proof of mistake or misconduct on the part of the election judges. We have so often held this proposition that a citation of the cases is unnecessary. The difficulty in determining whether such weight shall be given to the ballots has always arisen upon the question whether or not they have been properly returned, and carefully preserved by the custodian after receiving them. It was stipulated in this case "that each election officer who returned the ballots and election returns from each voting place to the county clerk testified that he returned the same in the condition in which he received them from the election officers, with seals unbroken, and that they had not been broken or tampered with while in his possession," so that the only question here is whether or not they were safely kept by the county clerk. In Kingery v. Berry, 94 Ill. 515, we quoted with approval the following language of the supreme court of Kansas in Hudson v. Solomon, 19 Kan. 177: "In order to continue the ballots controlling as