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surance premiums, interest on, and principal | sell v. Peirce, 184 Ill. 60; Ingraham v. Mariof the original purchase-money mortgage, and ner, 194 Ill. 269; Seals v. Treatch, 282 Ill. expenditures for the management of the 167; Hill v. Reno, supra.” property, the balance is required to be distributed among the owners of the certificates of interest or their personal representatives, in the proportion of their respective interests as evidenced by their certificates.

[3] We do not believe that the judgment recovered by Wise against Scherrer is material to this controversy. Under the contract between them, set up in Scherrer's answer, Wise accepted, as trustee, an assignment of Scherrer's certificate to secure the payment of the money due on the judgment, and for Upon the payment of the judgment Wise agreed to satisfy it of record, and also to make conveyance by quitclaim deeds, if necessary. By that agreement Scherrer continued to be the owner of the certificate, and has a right to object to par

other purposes.

tition.

The attempted levy, sheriff's sale, and conveyance of Scherrer's interest in the real estate were ineffectual.

While there is no express covenant in the deed of trust which prohibits partition at the instance of any interested party, yet the implication is clear that not only was partition of the property not contemplated by any of the purchasers, but to permit it would be contrary to their plan and understanding. Each purchaser accepted, in lieu of an interest in the land itself, an interest in the proceeds of sale, and this interest was evidenced by a certificate. Nothing in the plan adopted prevented the sale by any certificate holder of his interest in the proceeds of sale. In fact, [4] 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 interest in the proceeds of sale to direct a conveyance by the trustee of any of the trust property. This provision was made for the protection of the parties interested. The plan could not be carried out if any beneficiary, however small his interest, could compel division or partition of the trust property.

[1, 2] An agreement not to partition need not be expressed but it may be implied. The circumstances may be such that partition would destroy the terms or plan of the agreement, and in that event partition will not be allowed. In Arnold v. Arnold, 308 Ill. 365, at page 367, 139 N. E. 592, 593, we said: "It has been said, in general terms, that an adult tenant in common has an absolute right to partition (Hill v. Reno, 112 Ill. 154; Ames v. Ames, 148 Ill. 321), but it has been in cases where there was neither an equitable nor legal objection to the exercise of the right, and partition was in accordance with the principles governing courts of equity. Wherever any interest inconsistent with partition has been in

The right of partition was properly denied, and the decree of the circuit court will therefore be affirmed.

Decree affirmed.

(313 III. 427)

AMERICAN GEAR CO. v. INDUSTRIAL
COMMISSION et al. (No. 16060.)

(Supreme Court of Illinois. Oct. 28, 1924.)

Master and servant 416-Notice of award held not properly served, so as to start running limitation for filing petition for review.

Notice of award of compensation, sent to employer through attorneys having no authority to represent it as to accident in question, though afterwards becoming its attorneys of record, did not start running 15-day limitation prescribed for filing petition for review of award.

Error to Circuit Court, Cook County; Har

Proceeding by James De Salvo, employee, under the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, §§ 138-172), for compensation for injuries, opposed by the American Gear Company, employer. From a judgment of the circuit court, setting aside the decision of the Industrial Commission, and affirming the decision of arbitrator in favor of the employee, the employer brings error. Reversed and remanded, with directions.

volved, the general rule has always been quali-ry M. Fisher, Judge. fied by the statement that equity will not award partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed upon the estate by one from whom he claims, or where partition would be contrary to equitable principles. Partition will not be awarded in a court of equity where there has been an agreement either not to partition, or where the agreement is such that it is necessary to secure the fulfillment of the agreement that there should not be a partition. Such an agreement may be verbal if it has been acted upon, and it need not be expressed but will be readily implied and enThomas 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-ror.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

David Lipman, of Chicago (Samuel Latkin, of Chicago, of counsel), for defendant in er

ror.

No

notice of the award was sent to them. notice was sent to Garrett, who did represent the American Gear Company, by virtue of the contract of the Republic Casualty Company, until June 2, 1922, and on June 3, the

with the commission a petition for review of the arbitrator's decision. At the hearing on review, counsel for the claimant objected to proceeding with the hearing on the ground that more than 15 days had elapsed since the notice of the award of the arbitrator had been received by the employer before the petition for review was filed. The claimant argued that Fyffe & Clarke were the attorneys of record for the employer and that service of notice on them was sufficient. The

and the award of the arbitrator was reduced to $13 a week for 55 weeks only. The claimant sued out a writ of error from the circuit court of Cook county, and that court made a finding that the employer was served with notice of the decision of the arbitrator on May 8, 1922, and that the petition for review was not filed within 15 days thereafter, and therefore the record of the Industrial Commission upon review was quashed, its decision set aside, and the decision of the arbitrator was affirmed. On the petition of the employer, a writ of error was awarded to review the judgment of the circuit court, and the only question presented is whether the petition for review was filed within the 15 days required by the statute.

DUNN, J. James De Salvo, on January 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 American Gear Company on account of an injury received on October 6, 1921. A notice of filing the claim and the date of hearing was sent to the employer on January 28, 1922, and on February 7 a memorandum of names and addresses for service of notices was filed by the Illinois Manufacturers' Casualty Association, designating Fyffe & Clarke as such agents or attorneys. At the hearing on March 27, Fyffe & Clarke, through P. C. Klohr, appearing for the employer, the appli-objection was overruled, the cause was heard, cant, appearing by his attorney, amended the petition, changing the date of the accident from October 6, 1921, to March 24, 1921. Prior to July 1, 1921, and on March 24, 1921, the insurance carrier for the American Gear Company was the Republic Casualty Company, while subsequent to July 1, and on October 6, 1921, the carrier was the Illinois Manufacturers' Casualty Association. Fyffe & Clarke were attorneys for the latter association. For that reason their names appear as agents and attorneys for the service of notices. They were not attorneys for the Republic Casualty Company, and when the petition was amended, so as to be based upon an injury received on March 24, 1921, their interests did not extend to such injury, and they were not authorized to represent the employer, the American Gear Company. The hearing was therefore continued to April 24, 1922, to enable the American Gear Company to be represented, when Klohr again appeared, as well as R. P. Garrett, who was the attorney of the Republic Casualty Company. Neither insurance company was made a party | to the petition, and the appearance of the attorneys in behalf of the employer was because of the contracts of insurance of the repective companies. At the hearing, testimony was introduced of an accident occurring on March 24, 1921. Garrett cross-examined the witnesses, and when testimony of a further injury occurring on October 6, 1921, was offered, Klohr objected and the testimony was rejected.

On April 29, an award was made of $3,500 as compensation for the injury of March 24, 1921. Notice of this decision was sent by the commission on May 5, 1922, to the American Gear Company, through Fyffe & Clarke. The record shows a receipt of this notice by A. J. Smith, but there is nothing to show his authority, or that he had any connection with the matter. Fyffe & Clarke had no authority, by virtue of the contract of the Illinois Manufacturers' Casualty Association, to represent the American Gear Company in regard to any accident occurring prior to July 1, 1921, and did not represent it, though the

It appears from the record that Fyffe & Clarke had no authority to represent the American Gear Company for any accident occurring prior to July 1, 1921, and they did not pretend to do so, but repudiated any such authority. It was because they did not represent the American Gear Company in the litigation that the hearing of March 24 was continued to April 27, to enable the gear company to be represented. At the hearing on April 27, the gear company was represented by Garrett. A stenographic report of the proceedings shows that Garrett appeared and Klohr appeared. It further shows that Klohr first asked to withdraw his appearance, but after some discussion he stated that he did not see any harm in letting his appearance stand and therefore withdrew his motion, and the arbitrator stated, "Then the record, as it now stands, shows that you do represent the respondent?" and Klohr answered, "Along with Mr. Garrett; yes." During the hearing Klohr took part in the proceedings only to object to the introduction of any evidence in regard to an accident on October 6, while Garrett conducted the defense against the claim of March 24. It is clear that, as to the claim which was the subjectmatter of this petition, Garrett only was the attorney of the American Gear Company. He was entitled to receive notice of the award. 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 not until notice was served upon Garrett, the only authorized agent or attorney of the American Gear Company, that the 15 days began to run within which the petition for review was to be filed. It was filed within that time, and the circuit court erred in finding that the petition for review was not filed within the proper time.

The plaintiff in error was entitled to have the decision of the arbitrator reviewed by the commission, and the circuit court erred in quashing the record of the commission, without reviewing its judgment on the merits.

The judgment is reversed, and the cause remanded, with directions to the circuit court to proceed to a hearing of the questions presented by the record.

Reversed and remanded, with directions.

(314 III. 45)

PEOPLE v. WALTON. (No. 16083.) (Supreme Court of Illinois. Oct. 28, 1924.)

1. Statutes 77(3)-Act permitting setting aside waters for fish preserves not invalid as local legislation.

Smith-Hurd Rev. St. 1923, c. 56, § 34, empowering Department of Agriculture to set aside waters as fish preserves, held not invalid under Const. art. 4, § 22, as local or special

law.

2. Constitutional law 278 (6)-Fish 9 Denial of privilege to fish in certain waters not denial of due process.

No one having absolute or unqualified right to catch fish except as privilege is given by the state, denial by Smith-Hurd Rev. St. 1923, c. 56, § 34, of privilege to fish in certain waters did not deprive defendant of liberty or property right without due process, under Const. art. 2, § 2.

3. Constitutional law 62-Act to conserve fish not invalid as delegation of legislative authority to administrative body.

Legislature by empowering Department of Agriculture by Smith-Hurd Rev. St. 1923, c. 56, § 34, to designate what waters of state should be used as fish preserves, conferred but administrative discretion and did not delegate legislative power, within Const. art. 3.

Error to Pulaski County Court; Fred Hood, Judge.

Mark Walton was convicted of violating act relating to conservation of fish, and he brings error. Affirmed.

C. S. Miller, of Mound City, for plaintiff in

error.

Edward J. Brundage, Atty. Gen., L. H. Boyd, State's Atty., of Mound City, and Edward C. Fitch, of Springfield, for the People.

STONE, J. Plaintiff in error was convicted in the county court of Pulaski county for

vise the law in relation to conservation of fish, etc., approved June 30, 1923 (Smith's Stat. p. 1050). A jury was waived, and he submitted propositions of law to the court holding unconstitutional said section on the ground that it contravened section 2 of article 2 of the Constitution, providing that no person shall be deprived of life, liberty, or property without due process of law; section 22 of article 4 of the Constitution, prohibiting local or special laws; and also article 3 of the Constitution, concerning the division of the government into three distinct parts. These were refused.

[1] Section 34 of the fish code provides that the Department of Agriculture shall have power, in its discretion, to set aside waters within the jurisdiction of the state as fish preserves, in which it shall be unlawful to take, catch, or kill fish, or attempt to do so, except as provided in the act..

Most of the questions involved in this case have been passed upon in People v. Diekmann, 285 Ill. 97, 120 N. E. 490. Section 25 of the Fish and Game Law (Hurd's Rev. St. 1917, c. 56) there under consideration gave to the fish and game commission power to set aside waters within the jurisdiction of the state as fish preserves, and was identical in that regard with the language used in section 34 of this act. that section 25 of the Fish and Game Law It was there urged

violates section 22 of article 4 of the Constitution, prohibiting the enactment of local or special laws, but it was held that this was not so; that the purpose of the act was to conserve fish, game, and wild fowl, and as such lies within the legislative province (People v. Bridges, 142 Ill. 30, 31 N. E. 115, 16 L. R. A. 684); that the act applied equally to all waters under the jurisdiction of the state, and applied equally to all persons so far as such waters were concerned.

in the cases cited in his brief, where this [2] Counsel contends that the rule applied court has held a Pharmacy Act, School Law, Election Law, Fees and Salaries Act, Medical Act, and laws and ordinances of like character, to be unconstitutional is applicable here. This argument does not recognize the difference between such cases where a private right was held to have been invaded, and the matter of preservation of fish and game. As was held in People v. Diekmann, supra, the ownership and title to all fish and game within the jurisdiction of the state are in the state. No one has an absolute or unqualified right to hunt or kill game or to catch fish except as the privilege is given by the sovereign state. Licenses to fish are specifically made subject to the power of the state to close the waters within its jurisdiction. People v. Diekmann, supra; People v. Bridges, supra. It follows, there fore, that when denied the privilege in cer

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 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 invalid as delegating legislative authority to an administrative body. It is impracticable for the Legislature to attempt to provide details of management and regulation in the preservation of fish and game. It would be practically impossible for it to determine what waters should and what should not be used as fish preserves. The Legislature, by empowering the department of Agriculture to designate what waters of the state shall be used as fish preserves, conferred but administrative discretion and did not delegate

The judgment of the county court will be affirmed.

Judgment affirmed.

(313 III. 332)

PEOPLE ex rel. REEVES, County Collector, v. MEYER. (No. 15490.)

(Supreme Court of Illinois. Oct. 28, 1924.)
1. Schools and school districts 108(2)—
Tax for building purposes held unauthorized
and not validated by statute.

to it legislative power. People v. Brady, 271
Ill. 100, 110 N. E. 864, Ann. Cas. 1917C, 1093;
United States v. Grimaud, 220 U. S. 506, 31
Sup. Ct. 480, 55 L. Ed. 563. In Sheldon v.
Hoyne, 261 Ill. 222, 103 N. E. 1021, the dis-had no authority to levy it.

building for school purposes and owning no
Community high school district, renting
real property, had no authority to levy build-
ing tax, and Act May 10, 1921 (Laws 1921, p.
798, §§ 3, 4), did not validate tax, since district

jector to legality of tax for educational purposes has burden of showing what part illegal.

Objector to tax for educational purposes has burden of showing what part was required by district for educational purposes, or that any part of it was to be used or accumulated for building purposes.

tinction between a delegation of power to 2. Schools and school districts 106-Oblegislate, which involves discretion as to what the law shall be, and conferring authority or discretion as to the execution of the law, is made plain, and in that case, and in Arms v. Ayer, 192 Ill. 601, 61 N. E. 851, 58 L. R. A. 277, 85 Am. St. Rep. 357, and People v. Grand Trunk Western Railway Co., 232 Ill. 292, 83 N. E. 839, it is held that it is not an objection to a law that it confers authority or discretion as to the execution of it. A brief contemplation of the purposes of the act in question here leads to the conviction that in order to render it practical, discretion as to the execution of the law must be vested in some administrative body. The matter of the preservation of fish and game is a police regulation, in

Appeal from Champaign County Court; Roy C. Freeman, Judge.

Action by the People, on relation of J. A. Reeves, County Collector, against William Meyer. From judgment of county court overruling objections to tax for educational building purposes, relator appeals, and depurposes, and sustaining objection to tax for fendant brings error. Affirmed.

tended for the advancement of the welfare 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 Ill. 649, 24 N. E.liamson, both of Urbana, O. M. Jones and 758, 9 L. R. A. 138, 23 Am. St. Rep. 641; Vail v. Seaborg, 120 Wash. 126, 207 P. 15; State v. Dudley, 182 N. C. 822, 109 S. E. 63; McKenney v. Farnsworth, 121 Me. 450, 118 A. 237; Payne & Butler v. Providence Gas Co., 31 R. I. 295, 77 A. 145, Ann. Cas. 1912B,

65.

A. R. Hall, both of Danville (Williamson & Winkelman, of Urbana, and Jones & Levin and Hall & Holaday, all of Danville, of counsel), for appellant.

Green & Palmer, of Urbana (Henry I. Green and Oris Barth, both of Urbana, of

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

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tion had never been authorized by a vote of the people to select, locate, or purchase a schoolhouse site and had never been authorized to purchase or build a schoolhouse or to expend funds for building purposes; that the board of education had adopted the practice of levying a tax for building purposes, with a view to accumulate a building fund to be used some time in the future, and which has never been authorized by a vote; that large sums of money had been levied as a tax for educational purposes, with the view of accumulating and adding to the building fund; that the $12,000 levied in 1921 for educational purposes was, in fact, levied for building and educational purposes; that the sum of $12,000 is unusually large and excessive in amount for educational purposes for that year, and it is impossible to determine what part of the $12,000 is intended to be used for educational purposes and what part thereof is attempted to be levied for future building purposes, and that the whole of said tax of $15,000 is illegal and void. The county court overruled the objections to the tax for educational purposes and sustained the objection to the tax for building purposes. The county collector has appealed from the judgment of the court denying judgment for the tax for building purposes. William Meyer has prosecuted a writ of error to review the judgment sustaining the tax for educational purposes.

There is a stipulation in the record to the effect that all the other taxpayers who filed objections made the same objections that were made to the taxes in this case by Meyer, plaintiff in error; that but one record shall be prepared for the cases, which will cover all objections of all the taxpayers; that the writ of error prosecuted by Meyer is to be consolidated with the appeal prosecuted by the collector; that both Meyer and the collector shall appear in the consolidated cases and each assign error on the record; and that the decision of this court in the consolidated cases shall be binding on the school district, and on each and every one of said tax objectors in all the other cases involving the validity of said taxes, including plaintiff in error. Both the appellant and the plaintiff in error have assigned errors on the record.

[1] This school district was validated by the validating act of May 10, 1921 (Laws 1921, p. 797, §§ 3, 4), and from that date has been a legally organized community high school district. People v. Walker, 305 Ill. 477, 137 N. E. 493. The district therefore had the right and power to levy taxes in August, 1921, for purposes needed by it-the taxes now in question.

used for high school purposes. There is some evidence in the record to the effect that a furnace was purchased for this building. The evidence does not show the amount or when the same was paid out for that purpose. It does not appear that the furnace was to be a permanent fixture for the building, if such was furnished, and if it was a permanent fixture it could not be treated as an expenditure for repairs for the district, as the district did not own it. In such case the expenditure amounted to no more than a rental charged for the use of the building. The court properly sustained the objections to the taxes for building purposes. The validating act had no effect to validate these taxes, as the district had no authority to levy such taxes. People v. Bell, 309 Ill. 387, 141 N. E. 187.

[2] The proof in the record does not sustain the objections of plaintiff in error to the taxes for educational purposes. It does not show how much was required by the district for educational purposes, or that any part of it was to be used or accumulated for building purposes. The burden of proof is on the plaintiff in error, which he has failed to sustain.

The judgment of the county court is affirmed.

Judgment affirmed.

(313 Ill. 539)

ILLINOIS CENT. R. Co. v. QUEEN CITY BLDG. CORPORATION et al. (No. 16119.)

(Supreme Court of Illinois. Oct. 28, 1924.) Courts 219(12)-Freehold involved only where necessary result of decree is that one party gains and other loses freehold.

Freehold is involved only where necessary result of decree is that one party gains and freehold is so put in issue that decision of case other party loses freehold, or where title to necessarily involves decision of such issue, and freehold was not involved in action to compel removal of encroaching projections from building.

Appeal from Circuit Court, Marion County; William B. Wright, Judge.

Bill by the Illinois Central Railroad Company against the Queen City Building Corporation and others. Decree for defendants, and plaintiff appeals. Cause transferred.

Noleman, Smith & Dallstream, of Centralia (Walter S. Horton,, of Chicago, Charles E. Feirich, of Carbondale, and G. A. Dupuy, of Chicago, of counsel), for appellant.

Charles F. Dew, of Centralia, and E. B. Vandervort, of Salem, for appellees.

The proof in this record establishes clearly 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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