« ForrigeFortsett »
surance premiums, interest on, and principal | sell v. Peirce, 184 111. 60; Ingraham v. Mari-
 We do not believe that the judgment reof interest or their personal representatives, covered by Wise against Scherrer is material in the proportion of their respective interests to this controversy. Under the contract beas evidenced by their certificates.
tween them, set up in Scherrer's answer, While there is no express covenant in the Wise accepted, as trustee, an assignment of deed of trust which prohibits partition at the Scherrer's certificate to secure the payment instance of any interested party, yet the im- of the money due on the judgment, and for plication is clear that not only was partition other purposes. Upon the payment of the of the property not contemplated by any of judgment Wise agreed to satisfy it of record, the purchasers, but to permit it would be con
and also to make conveyance by quitclaim trary to their plan and understanding. Each deeds, if necessary. By that agreement purchaser accepted, in lieu of an interest in Scherrer continued to be the owner of the the land itself, an interest in the proceeds of certificate, and has a right to object to parsale, and this interest was evidenced by a
tition. The attempted levy, sheriff's sale, certificate. Nothing in the plan adopted pre- and conveyance of Scherrer's interest in the vented the sale by any certificate holder of real estate were ineffectual. his interest in the proceeds of sale. In fact,
 Nor did the decree against Scherrer for the certificate is more readily transferable $8,181.81, entered on January 24, 1905, disthan an undivided interest in the land could solve the trust. It could do no more than be conveyed. The value of the interest rep-charge Scherrer's interest in the proceeds of resented by a certificate is as easily ascer
the sale of land. In any event, there was tainable as is the value of an undivided in-no levy, pursuant to that decree, upon any of terest in the land. The parties agreed that it the trust property. would require the owners of a two-thirds
The right of partition was properly denied, interest in the proceeds of sale to direct a and the decree of the circuit court will thereconveyance by the trustee of any of the trust fore be affirmed. property. This provision was made for the
Decree affirmed. protection of the parties interested. The plan could not be carried out if any beneficiary, however small his interest, could compel di
(313 III. 427) vision or partition of the trust property.
AMERICAN GEAR CO. V. INDUSTRIAL [1, 2] An agreement not to partition need COMMISSION et al. (No. 16060.) not be expressed but it may be implied. The circumstances may be such that partition (Supreme Court of Illinois. Oct. 28, 1924.) would destroy the terms or plan of the agreement, and in that event partition will Master and servant 416_Notice of award not be allowed. In Arnold v. Arnold, 308 Ill.
held not properly served, so as to start run. 365, at page 367, 139 N. E. 592, 593, we said:
ning limitation for filing petition for review. “It has been said, in general terms, that an employer through attorneys having no author
Notice of award of compensation, sent to adult tenant in common has an absolute right to partition (Hill v. Reno, 112 III. 154; Ames though afterwards becoming its attorneys of
ity to represent as to accident in question, v. Ames, 148 III. 321), but it has been in cases record, did not start running 15-day limitation where there was neither an equitable nor legal prescribed for filing petition for review of objection to the exercise of the right, and par- award. tition was in accordance with the principles governing courts of equity. Wherever any in
Error to Circuit Court, Cook County; Harterest inconsistent with partition has been involved, the general rule has always been quali- ry M. Fisher, Judge. fied by the statement that equity will not award Proceeding by James De Salvo, employee, partition at the suit of one in violation of his under the Workmen's Compensation Act own agreement, or in violation of a condition (Smith-Hurd Rev. St. 1923, c. 48, 88 138–172), or restriction imposed upon the estate by one for compensation for injuries, opposed by the from whom he claims, or where partition would be contrary to equitable principles. Par- American Gear Company, employer. From a tition will not be awarded in a court of equity judgment of the circuit court, setting aside where there has been an agreement either not the decision of the Industrial Commission, to partition, or where the agreement is such and affirming the decision of arbitrator in that it is necessary to secure the fulfillment of favor of the employee, the employer brings the agreement that there should not be a par- error. Reversed and remanded, with directition. Such an agreement may be verbal if it
tions. has been acted upon, and it need not be expressed but will be readily implied and en Thomas C. Angerstein, and Richard P. forced if necessary to the protection of the Garrett, both of Chicago, for plaintiff in erparties. Martin v. Martin, 170 Ill. 639; Bis- 1 ror.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) David Lipman, of Chicago (Samuel Latkin, notice of the award was sent to them. No of Chicago, of counsel), for defendant in er- notice was sent to Garrett, who did represent ror.
the American Gear Company, by virtue of
the contract of the Republic Casualty ComDUNN, J. James De Salvo, on January pany, until June 2, 1922, and on June 3, the 25, 1922, filed an application for the adjust- day after the receipt of the notice, he filed ment of a claim for compensation from the with the commission a petition for review of American Gear Company on account of an the arbitrator's decision. At the hearing on injury received on October 6, 1921. A notice review, counsel for the claimant objected to of filing the claim and the date of hearing proceeding with the hearing on the ground was sent to the employer on January 28, 1922, that more than 15 days had elapsed since the and on February 7 a memorandum of names notice of the award of the arbitrator had and addresses for service of notices was filed been received by the employer before the by the Illinois Manufacturers' Casualty As-petition for review was filed. The claimant sociation, designating Fyffe & Clarke as such argued that Fyffe & Clarke were the attoragents or attorneys. At the hearing on neys of record for the employer and that March 27. Fyffe & Clarke, through P. C. service of notice on them was sufficient. The Klohr, appearing for the employer, the appli- objection was overruled, the cause was beard, cant, appearing by his attorney, amended the and the award of the arbitrator was reduced petition, changing the date of the accident to $13 a week for 55 weeks only. The claimfrom October 6, 1921, to March 24, 1921. Pri- ant sued out a writ of error from the circuit or to July 1, 1921, and on March 24, 1921, the court of Cook county, and that court made a insurance carrier for the American Gear finding that the employer was served with Company was the Republic Casualty Com- notice of the decision of the arbitrator on pany, while subsequent to July 1, and on Oc- May 8, 1922, and that the petition for review tober 6, 1921, the carrier was the Illinois was not filed within 15 days thereafter, and Manufacturers Casualty Association. Fyffe & therefore the record of the Industrial ComClarke were attorneys for the latter associa- mission upon review was quashed, its decition. For that reason their names appear as sion set aside, and the decision of the arbiagents and attorneys for the service of no-trator was affirmed. On the petition of tices. They were not attorneys for the Re- the employer, a writ of error was awarded to public Casualty Company, and when the pe- review the judgment of the circuit court, and tition was amended, so as to be based upon the only question presented is whether the an injury received on March 24, 1921, their petition for review was filed within the 15 interests did not extend to such injury, and days required by the statute. they were not authorized to represent the It appears from the record that Fyffe & employer, the American Gear Company. The Clarke had no authority to represent the hearing was therefore continued to April 24, American Gear Company for any accident oc1922, to enable the American Gear Company curring prior to July 1, 1921, and they did to be represented, when Klohr again appear- not pretend to do so, but repudiated any such ed, as well as R. P. Garrett, who was the authority. It was because they did not repattorney of the Republic Casualty Company. resent the American Gear Company in the Neither insurance company was made a party litigation that the hearing of March 24 was to the petition, and the appearance of the continued to April 27, to enable the gear attorneys in behalf of the employer was be company to be represented. At the hearing cause of the contracts of insurance of the re on April 27, the gear company was reprepective companies. At the hearing, testimony sented by Garrett. A stenographic report of was introduced of an accident occurring on the proceedings shows that Garrett appeared March 24, 1921. Garrett cross-examined the and Klohr appeared. It further shows that witnesses, and when testimony of a further | Klohr first asked to withdraw his appearinjury occurring on October 6, 1921, was ance, but after some discussion he stated offered, Klobr objected and the testimony that he did not see any harm in letting his was rejected.
appearance stand and therefore withdrew On April 29, an award was made of $3,500 his motion, and the arbitrator stated, “Then as compensation for the injury of March 24, the record, as it now stands, shows that you 1921. Notice of this decision was sent by the do represent the respondent?" and Klohr ancommission on May 5, 1922, to the American swered, “Along with Mr. Garrett; yes.” DurGear Company, through Fyffe & Clarke. The ing the hearing Klohr took part in the prorecord shows a receipt of this notice by A. ceedings only to object to the introduction of J. Smith, but there is nothing to show his any evidence in regard to an accident on Ocauthority, or that he had any connection tober 6, while Garrett conducted the defense with the matter. Fyffe & Clarke had no au- against the claim of March 24. It is clear thority, by virtue of the contract of the Illi- that, as to the claim which was the subjectnois Manufacturers' Casualty Association, to matter of this petition, Garrett only was the represent the American Gear Company in re- attorney of the American Gear Company. He gard to any accident occurring prior to July was entitled to receive notice of the award. 1, 1921, and did not represent it, though the The notice sent to Fyffe & Clarke, who had
no interest in the subject-matter of the litiga-, the violation of section 34 of the act to retion, was of no effect, and it was ao: until no- vise the law in relation to conservation of tice was served upon Garrctt, the only au- fish, etc., approved June 30, 1923 (Smith's thorized agent or attorney of the American Stat. p. 1050). A jury was waived, and he Gear Company, that the 15 days began to run submitted propositions of law to the court within which toe petition for revicw was to holding unconstitutional said section on the be filed. It was filed within that time, and ground that it contravened section 2 of arthe circuit court erred in finding that the pe- ticle 2 of the Constitution, providing that no tition for review was not filed within the person shall be deprived of life, liberty, or proper time.
property without due process of law; sec. The plaintiff in error was entitled to have tion 22 of article 4 of the Constitution, prothe decision of the arbitrator reviewed by the hibiting local or special laws; and also arti. commission, and the circuit court erred in cle 3 of the Constitution, concerning the diviquashing the record of the commission, with- sion of the government into three distinct out reviewing its judgment on the merits. parts. These were refused.
The judgment is reversed, and the cause  Section 34 of the fish code provides remanded, with directions to the circuit court that the Department of Agriculture shall to proceed to a hearing of the questions pre- have power, in its discretion, to set aside sented by the record.
waters within the jurisdiction of the state Reversed and remanded, with directions. as fish preserves, in which it shall be unlaw.
ful to take, catch, or kill fish, or attempt to
do so, except as provided in the act. (314 III. 45)
Most of the questions involved in this case PEOPLE V. WALTON. (No. 16083.)
have been passed upon in People v. Diek(Supreme Court of Illinois. Oct. 28, 1924.) mann, 285 Ill. 97, 120 N. E. 490. Section 23
of the Fish and Game Law (Hurd's Rev. St. 1. Statutes Cm77(3)-Act permitting setting 1917, c. 56) there under consideration gave
aside waters for fish preserves not invalid to the fish and game commission power to as local legislation.
set aside waters within the jurisdiction of Smith-Hurd Rev. St. 1923, c. 56, § 34, em- the state as fish preserves, and was identipowering Department of Agriculture to set cal in that regard with the language used in aside waters as fish preserves, held not invalid section 34 of this act. under Const. art. 4, § 22, as local or special that section 25 of the Fish and Game Law
It was there urged law.
violates section 22 of article 4 of the Con2. Constitutional law Ow278(6)-Fish On 9 stitution, prohibiting the enactment of local
Denial of privilege to fish in certain waters, or special laws, but it was held that this was not denial of due process.
not so; that the purpose of the act was to No one having absolute or unqualified right conserve fish, game, and wild fowl, and as to catch fish except as privilege is given by the such lies within the legislative province state, denial by Smith-Hurd Rev. St. 1923, c. 56, § 34, of privilege to fish in certain waters (People v. Bridges, 142 111. 30, 31 N. E. 115, 16 did not deprive defendant of liberty or property L. R. A. 684); that the act applied equally right without due process, under Const. art. to all waters under the jurisdiction of the 2, § 2
state, and applied equally to all persons so
far as such waters were concerned. 3. Constitutional law Om62-Act to conserve fish not invalid as delegation of legislative in the cases cited in his brief, where this
 Counsel contends that the rule applied authority to administrative body.
Legislature by empowering Department of court has held a Pharmacy Act, School Law, Agriculture by Smith-Hurd Rev. St. 1923, c.
Election Law, Fees and Salaries Act, Medi56, § 34, to designate what waters of state cal Act, and laws and ordinances of like should be used as fish preserves, conferred but character, to be unconstitutional is appliadministrative discretion and did not delegate cable here. This argument does not recoglegislative power, within Const. art. 3.
nize the difference between such cases where Error to Pulaski County Court; Fred a private right was held to have been inHood, Judge.
vaded, and the matter of preservation of fish
and game. As was held in People v. DiekMark Walton was convicted of violating mann, supra, the ownership and title to all act relating to conservation of fish, and he fish and game within the jurisdiction of brings error. Affirmed.
the state are in the state. No one has an C. S. Miller, of Mound City, for plaintiff in absolute or unqualified right to hunt or kill
game or to catch fish except as the privilege Edward J. Brundage, Atty. Gen., L. H. is given by the sovereign state. Licenses to Boyd, State's Atty., of Mound City, and Ed- fish are specifically made subject to the ward C. Fitch, of Springfield, for the People. power of the state to close the waters within
its jurisdiction. People v. Diekmann, supra ; STONE, J. Plaintiff in error was convict- People v. Bridges, supra. It follows, there ed in the county court of Pulaski county for fore, that when denied the privilege in cer
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) tain waters the plaintiff in error was not other or different rule than that announced deprived of liberty or a property right with by this court in American Express Co. v. out due process of law. He had no such People, supra, and People v. Diekmann, suright.
pra. (3) Nor is section 34 of the fish code in The judgment of the county court will be valid as delegating legislative authority to affirmed. an administrative body. It is impracticable Judgment affirmed. for the Legislature to attempt to provide details of management and regulation in the preservation of fish and game. It would be
(313 Ill. 332) practically impossible for it to determine PEOPLE ex rel. REEVES, County Collector, what waters should and what should not be
V. MEYER. (No. 15490.) used as fish preserves. The Legislature, by (Supreme Court of Illinois. Oct. 28, 1924.) empowering the department of Agriculture to designate what waters of the state shall | 1. Schools and school districts 108 (2) be used as fish preserves, conferred but ad
Tax for building purposes held unauthorized
and not validated by statute. ministrative discretion and did not delegate to it legislative power.
Community high school district, renting
Brady, 271 11. 100, 110 N. E. 864, Ann. Cas. 1917C, 1093; real property, had no authority to levy build
building for school purposes and owning no United States v. Grimaud, 220 U. S. 506, 31 ing tax, and Act May 10, 1921 (Laws 1921, p. Sup. Ct. 480, 55 L. Ed. 563. In Sheldon v. 798, 88 3, 4), did not validate tax, since district Hoyne, 261 Ill. 222, 103 N. E. 1021, the dis- had no authority to levy it. tinction between a delegation of power to 2. Schools and school districts 106—0blegislate, which involves discretion as to
jector to legality of tax for educational pur. what the law shall be, and conferring au poses has burden of showing what part illethority or discretion as to the execution of gal. the law, is made plain, and in that case, and Objector to tax for educational purposes in Arms v. Ayer, 192 Ill. 601, 61 N. E. 851, has burden of showing what part was required 58 L. R. A. 277, 85 Am. St. Rep. 357, and by district for educational purposes, or that People v. Grand Trunk Western Railway any part of it was to be used or accumulated Co., 232 111. 292, 83 N. E. 839, it is held that for building purposes. it is not an objection to a law that it confers authority or discretion as to the execu Appeal from Champaign County Court; tion of it. A brief contemplation of the Roy C. Freeman, Judge. purposes of the act in question here leads to
Action by the People, on relation of J. A. the conviction that in order to render it Reeves, County Collector, against William practical, discretion as to the execution of
Meyer. From judgment of county court the law must be vested in some administra- overruling objections to tax for educational tive body. The matter of the preservation purposes, and sustaining objection to tax for of fish and game is a police regulation, in- building purposes, relator appeals, and detended for the advancement of the welfare
fendant brings error. Affirmed. of the people of the state in the conservation of an important food supply. American
Roy R. Cline, State's Atty., and F. E. WilExpress Co. v. People, 133 111. 649, 24 N. E. liamson, both of Urbana, 0. M. Jones and 758, 9 L. R. A. 138, 23 Am. St. Rep. 641; / A. R. Hall, both of Danville (Williamson & Vail v. Seaborg, 120 Wash. 126, 207 P. 15; Winkelman, of Urbana, and Jones & Levin State v. Dudley, 182 N. C. 822, 109 S. E. 63; and Hall & Holaday, all of Danville, of counMcKenney v. Farnsworth, 121 Me. 450, 118 sel), for appellant. A. 237; Payne & Butler v. Providence Gas Green & Palmer, of Urbana (Henry I. Co., 31 R. I. 295, 77 A. 145, Ann. Cas. 1912B, Green and Oris Barth, both of Urbana, of 65.
counsel), for appellee. Counsel for plaintiff in error argues that this law works an unreasonable hardship on DUNCAN, C. J. The board of education men engaged in the fishing business in the of St. Joseph community high school district waters taken for fish preserves. The ques- No. 305, in Champaign county, levied for the tions addressed to this court are as to the year 1921 a tax of $12,000 for educational validity of the law. Whether the law should purposes and $3,000 for building purposes. have been passed is not a matter for this William Meyer and a number of other propcourt to pass upon. However, as we have erty owners filed objections to the legality of seen, plaintiff in error owns no right, posses- the tax for both purposes, on the application sory or otherwise, in the waters in which he of the county collector for judgment. The has been fishing and which have been taken first two objections were that the district as a fish preserve, and that act is not in- had no legal existence, and therefore no powvalid as contravening his rights. No cases er to levy the tax. The third objection to the have been cited by counsel for plaintiff in tax levy for building purposes was that it is error, and we know of none, holding any 'illegal and void, because the board of educa
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
tion had never been authorized by a vote of used for high school purposes. There is the people to select, locate, or purchase a some evidence in the record to the effect that schoolhouse site and had never been author- a furnace was purchased for this building. ized to purchase or build a schoolhouse or to The evidence does not show the amount or expend funds for building purposes; that the when the same was paid out for that purpose. board of education had adopted the practice It does not appear that the furnace was to of levying a tax for building purposes, with be a permanent fixture for the building, if a view to accumulate a building fund to be such was furnished, and if it was a perinaused some time in the future, and which has nent fixture it could not be treated as an exnever been authorized by a vote; that large penditure for repairs for the district, as the sums of money had been levied as a tax for district did not own it. In such case the exeducational purposes, with the view of ac. penditure amounted to no more than a rentcumulating and adding to the building fund; al charged for the use of the building. The that the $12,000 levied in 1921 for education- court properly sustained the objections to al purposes was, in fact, levied for building the taxes for building purposes. The valiand educational purposes; that the sum of dating act had no effect to validate these tax. $12,000 is unusually large and excessive in es, as the district had no authority to levy amount for educational purposes for that such taxes. People Bell, 309 Ill. 387, 141 year, and it is impossible to determine what N. E, 187. part of the $12,000 is intended to be used for  The proof in the record does not suseducational purposes and what part thereof tain the objections of plaintiff in error to is attempted to be levied for future building the taxes for educational purposes. It does purposes, and that the whole of said tax of not show how much was required by the dis$15,000 is illegal and void. The county court trict for educational purposes, or that any overruled the objections to the tax for edu- part of it was to be used or accumulated for cational purposes and sustained the objection building purposes. The burden of proof is to the tax for building purposes. The county on the plaintiff in error, which he has failed collector has appealed from the judgment of to sustain. the court denying judgn ent for the tax for The judgment of the county court is afbuilding purposes. William Meyer has pros-firmed. ecuted a writ of error to review the judg Judgment affirmed, ment sustaining the tax for educational purposes. There is a stipulation in the record to the
(313 Ill. 539) effect that all the other taxpayers who filed ILLINOIS CENT. R. Co. v. QUEEN CITY objections made the same objections that
BLDG. CORPORATION et al. were made to the taxes in this case by Mey
(No. 16119.) er, plaintiff in error; that but one record (Supreme Court of Illinois. Oct. 28, 1924.) shall be prepared for the cases, which will cover all objections of all the taxpayers;
Courts em 219(12)-Freehold involved only that the writ of error prosecuted by Meyer
where necessary result of decree is that one is to be consolidated with the appeal prose
party gains and other loses freehold. cuted by the collector; that both Meyer and
Freehold is involved only where necessary the collector shall appear in the consolidated result of decree is that one party gains and cases and each assign error on the record; freehold is so put in issue that decision of case
other party loses freehold, or where title to and that the decision of this court in the necessarily involves decision of such issue, and consolidated cases shall be binding on the freehold was not involved in action to compel school district, and on each and every one removal of encroaching projections from buildof said tax objectors in all the other cases ing. involving the validity of said taxes, including plaintiff in error. Both the appellant Appeal from Circuit Court, Marion Counand the plaintiff in error have assigned er- ty; William B. Wright, Judge. rors on the record.
Bill by the Illinois Central Railroad Com This school district was validated by pany against the Queen City Building Corthe validating act of May 10, 1921 (Laws poration and others. Decree for defendants, 1921, p. 797, $$ 3, 4), and from that date has and plaintiff appeals. Cause transferred. been a legally organized community high school district. People v. Walker, 305 III. 477,
Noleman, Smith & Dallstream, of Centralia 137 N. E. 493. The district therefore had the (Walter S. Horton,, of Chicago, Charles E. right and power to levy taxes in August, Feirich, of Carbondale, and G. A. Dupuy, of 1921, for purposes needed by it-the taxes Chicago, of counsel), for appellant. now in question.
Charles F. Dew, of Centralia, and E. B. The proof in this record establishes clearly | Vandervort, of Salem, for appellees. that the school district has owned no real property since its existence. It was paying THOMPSON, J. Appellant, the Illinois a rental of $2.800 per year for a building | Central Railroad Company, filed its bill in
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes