ing a deed or deeds for the same, I hereby authorize my said wife, as executrix aforesaid, to complete such sale, and to make and deliver deeds or deed to the purchaser or purchasers, and the title shall be thereby as fully vested in said purchaser or purchasers as if I had done the saine in my lifetime. In witness whereof, I have hereunto set my hand and seal this 13th day of April, A. D. 1863. William Billings. [Seal.]" Billings' estate, at the time of his death, consisted of city property in Monmouth, and lands situated in the state of Iowa, besides some $9,000 of personal property. On March 4, 1884, his son, William Mark Billings, died intestate, at the age of 32 years, never having been married. Mahala Vannatta departed this life October 15, 1894, intestate, leaving children and grandchildren, the plaintiffs in error here. Sarah, the widow of William Billings, afterwards married one J. M. Simmons, and on March 3, 1898, made her last will and testament, which was afterwards duly proved and admitted to probate, by which, among other bequests and devises, it was provided: "I further give and bequeath to my beloved husband, J. M. Simmons, for the term of his natural life, all my real estate, and the income arising therefrom, of which I may die possessed; and at the death of my said husband I give and bequeath said real estate to Monmouth Library and Reading Room, located in the city of Monmouth, county of Warren, and state of Illinois, for the purpose of erecting a building; and they shall put a library in said building, on the first floor. I give and bequeath the above-mentioned real estate for said purpose on condition that the said Monmouth Library and Reading Room will place a marble slab in front of said building, with the following inscription thereon: "The Mark Billings Memorial Building.' If the said Monmouth Library and Reading Room should fail or refuse to comply with the above condition, then the above-mentioned real estate shall descend to the Billings heirs, wherever they may be found."

At the September term, 1898, of the Warren county circuit court, the Warren County Library & Reading-Room Association filed its bill, alleging it to be a corporation under the laws of this state, and engaged in the business of conducting a free public library in the city of Monmouth; that, as such corporation, it had the power to receive and accept gifts, donations, bequests, and devises of real and personal property; that the devise in the will of Sarah Simmons to the Monmouth Library & Reading Room was intended for the complainant; that the testatrix died the owner in fee of certain real estate in the city of Monmouth (describing it), and also certain lands in the state of Iowa, and that complainant is willing and desirous of accepting and taking under said devise, according to the conditions thereof, and complying with the conditions of the said devise. The bill makes the heirs of William Billings, known and un

known, including the heirs of Mahala Vannatta, defendants, and prays that the complainant may be decreed to be a devisee under the last will of Sarah C. Simmons, and be declared to be the owner of the interest vested in and by said will in and to the said lands. The answer of respondents charges that by the death of William Mark Billings without ever having been married, and without having any children born to him before he was 21 years of age, and under the last will of William Billings, Mahala Vannatta became and was seised of the whole of lots 1 and 4 in block 47 in the city of Monmouth, and also of the undivided one-half of all the remaining lands, tenements, and real estate of which the said William Billings died seised, her right being subject only to the life estate therein of Sarah C. Simmons; that said Mahala Vannatta became entitled to one-half of the personalty, subject to the life use thereof by said Sarah C. Billings; that by reason of the death of said William Mark Billings on the 4th day of March, 1884, without having children born to him before he arrived at the age of 21 years, Mahala Vannatta, under the terms of the will of said William Billings, then became seised in fee of all of said lands, and entitled to all of the personalty, subject to the life estate therein of Sarah C. Billings; that respondents are seised in fee of said premises as heirs of Mahala Vannatta; and that the will of Sarah C. Simmons is wholly void and of no force and effect as to all of such property. Afterwards a cross bill was filed by the same respondents, averring the same facts set up in their answer, and, in addition thereto, charging that William Mark Billings at the time of his death left no property; that no administration was ever had of his estate; that all the property which he had in his lifetime used or controlled was what his mother permitted him to use. cross bill asks that the complainants therein may be decreed to be the absolute owners, and entitled to the possession, as against the defendants in the cross bill, of all the realty of which William Billings died seised, and that partition may be had among the complainants therein. A general demurrer to the cross bill was sustained, and, the complainants electing to stand by their cross bill, the same was dismissed by the court, and on hearing a decree was rendered in accordance with the prayer of the original bill. It is apparent that the principal questions for determination here depend upon the construction to be given to the will of William Billings.

The

A. F. Goodyear and Kirkpatrick & Alexander, for plaintiffs in error. Grier & Stew art, for defendants in error.

PHILLIPS, J. (after stating the facts). Under the averments of the cross bill, to which a demurrer was sustained, it appears that certain properties devised by Sarah C. Simmons, who had been the widow of William Billings, was the same property devised

to her by said Billings. The demurrer admitted the truth of that averment, and at the threshold of this case it is admitted that property devised by William Billings is the identical property devised by Sarah C. Simmons. The sole question, then, to be determined on this record, is the construction of the will of William Billings, and the determination of what estate was taken thereunder by his widow. By the second and third clauses of the will two lots in the city of Monmouth, and one-half the residue and remainder of the real and personal estate, would be vested in Sarah C. Billings in fee simple, if there were no other clauses of the will. By the third and fourth clauses of the will one-half the real and personal estate, other than the lots mentioned in the second clause, are declared to be vested in William Mark Billings if he should arrive at the age of 21 years. There is no attempt to in any manner dispose otherwise of the one-half of the residuary estate which vested in William M. Billings, but the entire will, when considered as a whole, leaves the estate absolutely in William M. Billings after it once veste, without in any manner directing as to what is to become of the same should he die childless. The material question to be considered, then, is the effect of the fifth clause on the property by the will devised to Sarah C. Billings. By the first four sections of the will all the property owned by the testator, other than that devised to the wife by the second clause of the will, passed to and vested, the one-half in the widow, and the one-half in the son, upon his arriving at the age of twenty-one years. By his death without issue after that time, and intestate, his interest passed, also, to the mother, without any restriction. The mother became then seised in fee of the entire estate. By her will she disposed of the same, so that the complainants in the cross bill, as heirs of Mahala Vannatta, took no interest; and it was not error to render a decree dismissing their bill. The decree of the circuit court of Warren county is affirmed. Decree affirmed.

(186 Ill. 314)

MARTENS v. PEOPLE ex rel. ROCK ISLAND COUNTY ATTORNEY. (Supreme Court of Illinois. June 21, 1900.) QUO WARRANTO-LEAVE TO FILE INFORMATION JUDICIAL DISCRETION REVIEW SALOON LICENSE-VALIDITY-MUNICIPAL ORDINANCE - REASONABLENESS UNIFORMITY-APPEAL AND ERROR-RECORD-SUPREME COURT JURISDICTION.

1. Error cannot be predicated on the refusal of the trial court to deny leave to file an information in the nature of a quo warranto on the ground that the application was presented, not for the purpose of subserving the public interests, but for the gratification of personal spite and prejudice, since the granting of leave to file such information rests in the sound discretion of the court to which the application is made, and is not reviewable except for its abuse.

2. Under Hurd's Rev. St. c. 112, § 1, providing that a petition in the nature of quo warranto may be filed to determine the right of

any person to hold or exercise any privilege, exemption, or license which has been issued or granted improperly or without warrant of law by any officer, board, commissioner, or other person authorized or empowered by law to grant or issue such privilege or license, a petition will lie to determine the validity of a saloon license claimed to have been issued in violation of a municipal ordinance.

3. A municipal ordinance providing that a license to sell intoxicating liquors in a block where a saloon has not theretofore existed shall not be issued, except on petition of twothirds of the persons owning property in such block, is not unreasonable; nor is it void, as descriminating between different blocks and between different parts of the city, or between different persons possessing the same property interests, but is uniform in its operation and valid.

4. An appellate court will not disturb the action of the trial court in imposing a fine on respondent in quo warranto proceedings instituted to determine the validity of a liquor license, when it is shown that he has been selling liquors under an invalid license, and the evidence from which the trial court determined the amount of the fine has not been preserved and presented in a bill of exceptions.

5. In proceedings in the nature of quo warranto to determine the validity of a liquor license, an appeal will lie to the appellate court, since a liquor license is not a franchise, within the contemplation of the statute which provides that appeals in cases involving a right to a franchise shall be taken in the first instance to the supreme court.

Appeal from appellate court, Second district.

Quo warranto proceedings in the name of the people, on the relation of the county attorney of Rock Island county, against John Martens, to determine the validity of a license to sell intoxicating liquors. From a judgment of the appellate court affirming a judgment in favor of relator (85 Ill. App. 66), respondent appeals. Affirmed.

WILKIN, J. This is an appeal from the appellate court for the Second district, affirming a judgment of the circuit court of Rock Island county against appellant in a quo warranto proceeding begun in that court by the state's attorney of Rock Island county. The motion for leave to file the information stated that appellant claimed and was attempting to exercise the right to keep a dramshop under a license issued to him by the mayor of the city of Moline on November 4, 1898, contrary to the ordinances of said city and the statute in such case made and provided; that no petition, as required by the ordinances of the city, accompanied the application for license; and that no sufficient bond was filed by appellant as provided by law. The motion was supported by affidavits. Leave was granted, and the information filed. It appears from the allegations of the information that at the time the license was issued to appellant there was an ordinance in force in the city to the effect that in any block where no saloon then existed no license should be issued to keep a saloon

there, without a petition, signed by twothirds of the freeholders in such block, praying that such license be issued; that when the license in question was issued no saloon then existed in block No. 2 in South Moline, where the saloon was attempted to be licensed, and that no saloon had ever existed or been opened in said block; that no application in writing was made to the mayor as provided by the ordinances of said city, nor was any petition presented, signed by twothirds of the freeholders in said block No. 2, praying for the issuing of such license, as provided by the ordinances; also, that the bond filled by appellant upon the issuing of the license was not in compliance with the ordinance of the city, in that it was not signed by two good and sufficient sureties who were at that date freeholders in Rock Island county. Appellant entered a motion to vacate the leave to file the information, supported by affidavits, but the motion was denied. A general demurrer was then filed to the information and overruled. Appellant electing to stand by his demurrer, the court entered a judgment of ouster against him, and imposed a fine of $250.

It is first contended that the circuit court should have denied the leave to file the information, for the reason that it was presented, not to subserve the public interests, but to gratify personal spite and prejudice, and for private and personal ends. The point is without substantial merit. As we said in People v. North Chicago Ry. Co., 88 Ill. 537: "The granting of leave to file an information in the nature of a quo warranto is in the sound discretion of the court or Judge to which the application is made. Leave, on the one hand, is not granted as a matter of right upon the part of the relator; and, on the other hand, a court is not at liberty to arbitrarily refuse, but must exercise a sound discretion in accordance with principles of law,"-citing People v. Waite, 70 Ill. 25, and People v. Callaghan, 83 III. 128. From an examination of the affidavits filed In the case both by relator and the respondent, we are satisfied that the record fails to show any abuse of the discretion reposed in the court to permit the information to be filed.

The contention that the validity of a saloon license cannot be tested by an information in the nature of a quo warranto is also without merit; this court, in the case of Swarth v. People, 109 Ill. 621, having held it to be a proper remedy under section 1 of chapter 112 of Hurd's Revised Statutes of 1897. It is urged on behalf of appellant that the rule announced in that case does not apply here, because in this case the charge is a violation of a city ordinance, while in the case cited the violation was of. a state law. The statute makes no such distinction; its language being that the petition may be filed when any person "shall hold or claim to hold or exercise any privilege, exemption or license, which has been improperly or without

warrant of law issued or granted by any officer, board commissioner, court or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license," etc. This case comes clearly within the language of the statute, and no good reason is pointed out why the information should not lie.

It is said that the city ordinance requiring the consent of a majority of the freeholders of a block before the license can be is sued is void, because unreasonable. The language of the ordinance is: "If the place so designated is in a block where no saloon then exists, then there shall accompany such application a petition of two-thirds of the freeholders in such block, praying that such license be issued." The question here is similar in principle to the one raised in City of Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853, 35 L. R. A. 84. The ordinance in that case provided that it should not be lawful to locate in any block, in which two-thirds of the buildings were devoted to exclusive resIdence purposes, a livery stable, "unless the owners of a majority of the lots in such block fronting or abutting on the street consent, in writing, to the location or construction of such livery stable." In commenting upon this provision of the ordinance, we there said (page 503, 162 Ill., page 855, 44 N. E., and page 87, 35 L. R. A.): "In determining the question of the location of a livery stable, the common council may properly consult the wishes and ascertain the needs of the residents of the block where the stable is to be kept, and to that end make their written consent the basis of the action of the commissioner of buildings in issuing the permit. In matters of purely local concern the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority,"-citing Cooley, Const. Lım. (6th Ed.). p. 138.

It is also said that this ordinance attempts to discriminate between different blocks and between different parts and portions of the city, and between different persons possessing the same property interests, and is therefore void. The language of the ordinance admits of no such construction. It is uniform in its operation. The ordinance being held valid, it follows that the license issued to appellant is void; it being conceded it was issued contrary to the requirements of the ordinance. This view renders it unnecessary to discuss the question as to the sufficiency of the bond.

As to the amount of fine imposed, the action of the trial court will not be disturbed. The record discloses the fact that evidence was heard upon that question; but it has not been preserved and presented in a bill of exceptions, and we are not in a position to say that it failed to justify the action of the court.

The position of appellee, by cross error, that the appeal was improperly taken in the first instance to the appellate court, because

A

a franchise is involved, is untenable. franchise is defined to be "a special privilege conferred by the government upon an individual or corporation, which does not belong to the citizens of the country generally, by common right." 14 Am. & Eng. Enc. Law (2d Ed.) p. 4. The term "franchise," as used in the statute providing that certain cases shall be appealable to this court, is used in its strict legal sense. A license to keep a saloon confers no special right or privilege upon the holder, but is merely one of the means adopted by the legislature for the regulation of the sale of intoxicating liquors; and such a license is not, therefore, within the legal definition of a franchise. Railroad Co. v. Dunbar, 95 Ill. 571. The judgment of the appellate court will be affirmed. Judgment affirmed.

1. 1 Starr & C. Ann. St. (1st Ed.) p. 630, §§ 2, 3, provide that, after the subscribers to a proposed building and loan association adopt by-laws, the secretary of state shall issue a certificate of the complete organization thereof, attaching thereto a copy of such by-laws. Section 5 provides that the secretary of a building and loan association alone shall be entitled to compensation. An association passed a by-law, after organization, authorizing the directors to appoint a salaried manager of agencies. Held, that such by-law was void, as in conflict with such sections, and therefore the appointment of the vice president and director of such association as manager of agencies was void, and he could not recover salary and commissions voted him, irrespective of the by-law, which provided that the directors might use the expense fund in extending the corporate business.

2. Since 1 Starr & C. Ann. St. (1st Ed.) p. 630, §§ 2, 3, provide that a copy of the by-laws of a building and loan association shall be included in the certificate of incorporation, and recorded in the office of the recorder of deeds of the county in which the principal office of the corporation is located, a building and loan association could not amend its by-laws after organization by creating a salaried manager of agencies, though one of the by-laws included in the certificate permitted the making of subsequent amendments.

3. Under 1 Starr & C. Ann. St. (1st Ed.) p. 630, 85, providing that the secretary of a building and loan association shall alone be entitled to compensation in such amount as shall be provided by the charter, a vice president and director of a building and loan association, appointed by the directors as manager of agencies, could not recover his salary and commission earned under such appointment, though he waived his written contract with the company, and sued for the value of services performed outside the scope of his duty as vice president and director.

Appeal from appellate court, Second district

Action by James P. Fritze against the

Equitable Building & Loan Society of Peoria for salary and commissions. From a judgment of the appellate court (83 Ill. App. 18) reversing a judgment in favor of plaintiff, he appeals. Affirmed.

This is an action of assumpsit brought by the appellant, James P. Fritze, for the use of M. N. Gish, against the appellee, the Equitable Building & Loan Society of Peoria, to recover for services alleged to have been rendered to appellee under a written contract. The declaration as finally amended consists of a special count upon the contract and the common counts. The defendant filed the general issue and three special pleas. The second plea was demurred to, and to it, as finally amended, a replication was filed, making an issue upon the second amended plea. The third and fourth amended pleas were demurred to, and, the demurrers being sustained, the defendant elected to abide by its third and fourth amended pleas.

By stipulation between the parties, it was agreed that the issues, whether of law or of fact, should be tried by the court without a jury. Upon the trial the court gave and held one proposition of law for the defendant below, the appellee here, and marked as refused three propositions of law submitted by the defendant below. The court found

the issue for the plaintiff below, the appellant here, and assessed his damages at the sum of $1,660. The motion to set aside the finding and for a new trial was overruled, and judgment for $1,660 was rendered in favor of appellant and against appellee upon the finding so made. Thereupon the defendant below, the Equitable Building & Loan Society of Peoria, took an appeal to the appellate court. The appellate court rendered a judgment reversing the judgment of the circuit court without remanding the cause. The judgment of the appellate court is: "It is considered by the court that, for that error and others in the record and proceedings aforesaid, the judgment of the circuit court of Peoria county in this behalf rendered be reversed, annulled, set aside, and wholly for nothing esteemed." The present appeal is prosecuted from the judgment of reversal so entered by the appellate court.

The declaration alleges that the appellee, as party of the first part, on May 2, 1892, and at its office in Peoria, made a written contract with appellant, Fritze, as party of the second part, the material part of which is as follows: "Witnesseth, that the said party of the first part does hereby employ the party of the second part as manager of agencies, to perform the services as designated in section 6 of article 3 of the society's by-laws. The said second party shall receive as his compensation out of the expense fund of said society, as such manager of agencies, for his services of the year, and in liquidation of all claims, the sum of $300monthly, and two cents per share per month,.

during the year of this contract, of each and every one of the monthly payments actually made upon every share of stock subscribed to the Equitable Building and Loan Society in the twenty-fifth to the thirty-sixth series, inclusive. The pay for these services shall be due and payable monthly, in sums not less than one cent per share per month of all the shares in good standing in the society, and as much more as the expense fund will admit, until such salary and commissions accrued under this contract are paid in accordance with the provisions of the same. The first party agrees to pay all the necessary traveling expenses of the second party when necessarily traveling in the interest of the society. This contract of employment to extend and be in full force and effect for one year from May 2, 1892." The declaration further avers that on May 14, 1892, said contract was ratified and approved by the society through its board of directors, and ordered spread upon the minutes; that said section 6 of article 3 of the by-laws is as follows: "The board of directors may appoint a manager, who shall, under their direction, appoint all agents, and their compensation shall be paid out of the expense fund. He shall control and manage the agency system of the society. He shall perform such other duties as the board of directors may require, and shall attend to all publications, printing, and advertising. His term of office and compensation for said employment shall be fixed by written contract by the board of directors, and shall be paid out of the expense fund." The declaration then avers that on February 15, 1893, Fritze had performed the services required of him under the contract, and had an accounting and settlement with the society of the amount due to him thereunder, to wit, $2,000, part of which was paid by the society to Fritze, leaving a balance of $1,790 due to him, which balance Fritze is alleged to have assigned to Moses N. Gish, the usee herein, by written assignment indorsed upon the contract; that the society had notice and knowledge of said assignment, and promised to pay the same to said usee; that ample sums of money were collected by the society under section 4 of article 1 of the by-laws to pay him according to the provisions of said contract; that section 4 of article 1 of said by-laws is as follows: "Every stockholder shall pay in advance a membership fee of $1.00 on each share subscribed, which, together with eight cents per share per month on each monthly installment, shall constitute the expense fund, which the directors shall cause to be used in the vigorous and competent prosecution and extension of the business of the association so far as practicable." The declaration further avers that the membership fee, together with the eight cents per share upon each installment collected by the society under said section 4 of article 1, was turned into and became a part of the expense fund for the uses specified in said section 4 of article 1, and the

expense fund thereby became and was amply sufficient on February 15, 1893, and at various other times before the beginning of this suit, to pay the sum of $1,790 due plaintiff as aforesaid.

The second amended plea alleged that the only cause of action in the declaration is that upon the contract in the first count thereof; that, at the time of making the contract and performing the alleged services, the defendant society was a corporation organized and doing business under "An act to enable associations of persons to become a body corporate to raise funds to be loaned only among the members of such association," in force July 1, 1879; that at that time Fritze was vice president of the defendant corporation, and a director and officer thereof; that, under the charter and by-laws of the society, the directors thereof had no power or authority to provide for an agency system of the society, or to provide for or appoint agents other than the officers and directors named by law, or to appoint a manager of agencies; and that, therefore, the society had no power or authority to enter into the contract set up in the first count of the declaration, and that the same is null and void. The replication to the second amended plea sets up that, at the time of the making of the contract and performing of the services thereunder, there was in force a valid by-law of the society, to wit, said section 6 of article 3 of the society's charter and by-laws, by virtue of which the society was duly empowered and authorized to make said contract.

The third amended plea avers that the only cause of action in the declaration is that set up in the first count thereof; that at the time of making the contract and performing the services aforesaid the society was a corporation organized under said act of July 1, 1879; that at that time the appellant, Fritze, was vice president of the corporation and an officer thereof; that under the charter and by-laws it was the duty of its president, among other things, that he should generally supervise the affairs of the association, and that, in case of his inability to act, the vice president should perform all the duties incumbent upon the president during the time of such disability; that the duties thus imposed upon the president, and, in case of his disability, upon the vice president, were in part the same duties and services provided for in said contract, and which the said Fritze agreed to perform in and by said contract; that, by reason of the premises, it was the duty of said Fritze to render the said services as vice president and as an officer of the society without compensation; and that, therefore, it was beyond the power and authority of the society to execute said contract, and the same is null and void.

The fourth amended plea avers, in addition to the averments contained in the third amended plea, that, at the time of making the contract and of performing the services