chaser is not chargeable with notice of the record of any of these instruments. Kerfoot v. Cronin, 105 Ill. 609; Booker v. Booker, 208 Ill. 529, 70 N. E. 709, 100 Am. St. Rep.

250.

[9] Cyrus N. Roberts acquired the title to the land in 1882 and owned and had uninterrupted possession of it until his death, on January 18, 1920. The abstract shows a complete and connected chain of title from the government to him. Apart from the suit, the title was merchantable. If it were necessary, in order to establish a good title, that an abstract show a perfect paper title, without fault, defect, or omission, although cured by existing facts or lapse of time, land could rarely, if ever, be sold. Attebery v. Blair, 244 Ill. 363, 91 N. E. 475, 135 Am. St. Rep.

342.

[10] This record does not justify the refusal to require specific performance of the contract made by the parties. The specific performance of a contract to convey land is as much a matter of course as an action of damages for its breach, and a court of equity will ordinarily grant such relief where the contract is valid at law, fairly entered into, and unobjectionable in any of those features which address themselves to the chancellor's discretion. Anderson v. Anderson, 251 Ill. 415, 96 N. E. 265, Ann. Cas. 1912C, 556.

The decree will be reversed, and the cause remanded, with directions to enter a decree in conformity with the prayer of the bill. Reversed and remanded, with directions.

(314 III. 51)

PEOPLE ex rel. LUTZ v. FRANCE et al. (No. 14953.)

(Supreme Court of Illinois. Oct. 28, 1924.) 1. Quo warranto 43-How court may act on petition for information in nature of quo warranto and what respondents may show stated.

If petition for leave to file information in nature of quo warranto shows prima facie cause for filing information, court may act upon petition or may enter a rule nisi upon respondents to show cause why information should not be filed, and in response thereto respondents may show by counter affidavits any sufficient reasons for denying petition.

2. Quo warranto 6-Granting or withholding of leave to file information in nature of quo warranto is discretionary with court.

Granting or withholding of leave to file information in nature of quo warranto rests in sound discretion of court to which application is made, notwithstanding existence of substantial defect in title by which office or franchise is held.

3. Quo warranto 43-When and why rule nisi granted on petition for leave to file information in nature of quo warranto may be made absolute stated.

Where, on petition for leave to file information in nature of quo warranto, facts shown by

respondents in answer to rule nisi are disputed, or answer presents new and doubtful questions of law, court may make rule for information absolute, in order that questions at issue may receive full and final determination.

4. Quo warranto 43-When rule nisi granted on petition for leave to file information in nature of quo warranto will not be made absolute stated.

Where, on petition for leave to file information in nature of quo warranto, facts shown by respondents in answer to rule nisi, are not disputed, and questions of law involved may receive as careful consideration upon original application as if rule to show cause were made absolute, such questions may be thus determined in first instance without making rule absolute.

5. Quo warranto 43-Essentials petition for leave to file information in nature of quo warranto must possess stated.

Petition for leave to file information in nature of quo warranto must recite facts-not mere conclusions of pleader-sufficient to satisfy court or judge of existence of competent grounds for the proceeding, and must be full, positive, and so drawn that perjury may be assigned thereon, if material allegation is false. 6. Schools and school districts ~22-Act validating consolidated high school districts held valid.

Act May 10, 1921 (Laws 1921, p. 797), validating consolidated high school districts under certain conditions, held valid.

7. Evidence —~5(2) — Judicial notice taken that high school students may travel distance of 9 miles in going to and from school.

Supreme Court may judicially notice that distance of 9 miles may be traveled by high school students in going to and from school by ordinary methods employed or which may be employed, particularly where condition of roads or streams or other conditions do not interfere with travel.

8. Schools and school districts 42(2)
"Compact" contiguous territory of community
high school district defined.

Territory of community high school district is compact and contiguous within constitutional sense (Const. art. 8, § 1), when it is so closely united and so nearly adjacent to school building that all children residing in district may conveniently travel from their homes to school building and return in reasonable time and with reasonable degree of comfort; "compact," as found in statute authorizing organization of community high school districts, meaning concentrated, or close or near to certain center.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Compact.]

9. Quo warranto 43-Allegations held not to show school center was not reasonably ac cessible to all pupils of district.

Allegations of petition for leave to file information in nature of quo warranto against persons acting as board of education of community high school district held not to show

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

(145 N.E.)

school center was not reasonably accessible to | upon the petition or may enter a rule nisi all pupils of district, within statute under which district was organized.

Appeal from Circuit Court, Fulton County; show by counter affidavits any sufficient reaWalter C. Frank, Judge.

The

colors; of the territory in question and of, and extent, as shown by the map attached three surrounding high school districts, the south one of which was Vermont community high school district, the east one of which was Ipava community high school district, and the northwest one of which was Adair community high school district; that there is no nonhigh school territory between the district in question and the other high school districts, except a strip of land 1⁄2 mile north and south by 2 miles east and west, which lies about the center of the border line of the Vermont high school district and Table Grove district. There was also an affidavit of Hellyer that elections for the organization of the districts of Table Grove, Ipava, and Vermont were all held the same day, and affidavits of Swedell and Rush Keating that 106 women and 167 men voted at the Table Grove Election, and that there were only 29 votes polled against it. The plat shows that the distance from the community center of the Table Grove district to the northeast corner thereof does not exceed 61⁄2 or 7 miles, and that the distance to the extreme southwest part of the district does not exceed 61⁄2 miles, and that these two corners of the district are the farthest points from the center. The court refused leave to file the information, and dismissed the petition at the costs of the relator.

to it; that some parts of the territory are
nine miles from the village of Table Grove;
and that many high school students will be
required to travel "nearly 9 miles."
plat or map made a part of the petition
does not confirm such statements, as is al-
ready shown; the greatest distance to any
part of the district being not to exceed seven
miles. This court has never ruled that the
school center should be within walking dis-
tance from all parts of the district. We may
take judicial notice of the fact that the dis-
tance of even 9 miles may be traveled by
high school students by the ordinary methods
of travel employed or that may be employed
in this state, and particularly where there is
no condition of roads or streams or other
conditions that interfere with travel. No
such conditions are alleged in this petition.
The word "compact," as found in the provi-
sions of the statute under which this com-
munity high school district was organized,
as defined by the late decisions of this court,
means concentrated, or close or near to a
certain center. The territory of a communi-
ty high school district is compact and con-
tiguous, in the constitutional sense, when it
is so closely united and so nearly adjacent
to the school building that all the children
residing in the district may conveniently
travel from their homes to the school build-
ing and return in a reasonable length of
time and with a reasonable degree of com-
fort. People v. Young, 301 Ill. 67, 133 N. E.
693; People v. Kirkham, 301 Ill. 45, 133 N.
E. 696; People v. Cowen, 306 Ill. 330, 137 N.
E. 836; People v. Crawford, 310 Ill. 205, 141
N. E. 725. This definition was framed in
view of the provisions of section 1 of article
8 of our Constitution, providing that "the
General Assembly shall provide a thorough
and efficient system of free schools, whereby
all the children of this state may receive a
good common school education," and in view
of the further fact that it has been the
constant practice in this state to form public
school districts so that all the pupils thereof
could reach the school house from their
homes while attending school. The idea now
crystallized and definitely established by our
decisions is that parents shall not be com-

[6] It appears from the record that the court denied leave to file the information upon the ground that all defects in the proceeding to organize the district were cured by the validating act of May 10, 1921 (Laws 1921, p. 797), except as to appellant's contention that the school center was not reasonably accessible to all the pupils of the district, and also held that the allegations of the petition were not sufficiently specific to show that the district violated appellant's constitutional rights. He concedes that the court properly held that all defects were cured by the validating act except the constitutional question, under the holding of People v. Opie, 301 Ill. 11, 133 N. E. 689, but insists also that that decision is wrong and should not be followed. That decision has been repeatedly followed and reaffirmed by this court in a number of cases, including the cases of People v. Baird, 307 Ill. 503, 139 N. E. 132, and People v. Price, 310 Ill. 66, 141 N. E. 409. It is now the set-pelled to board and lodge their children at tled law of this state, and we again affirm the constitutionality of the validating act.

[7-9] The court properly ruled that the petition did not contain allegations sufficient to show that any of the pupils in the high school district could not conveniently travel from their homes to and from the school center in time to have the benefit of the high school. The petition is very general in this particular, simply stating that the community high school district is of great magnitude

the school centers and pay the expenses thereof from their own private purses while the children are attending school in their own public school districts, where the people of the district are burdened with all the costs and expenses of such schools by public taxation, when their children are in ordinary health and physical condition.

The court properly denied leave to file the information, and such order is affirmed. Order affirmed.

(313 Ill. 448)

HOIER V. KAPLAN et al.

(Supreme Court of Illinois.

(145 N.E.)

(No. 16001.) Oct. 28, 1924.) 1. Equity 1-Judgment at law is unit, but decree in equity may con

415-Judgment

stitute several decrees.

A judgment at law is a unit, but a decree in equity may have the effect of several sepa

rate decrees.

2. Appeal and error 80(6) — Appeal lies from part of decree dealing with particular subject, and operates as severance in trial court of parties and questions not concerned in appeal.

Appeal from Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Hugo M. Friend, Judge.

Petition in circuit court for mechanic's lien by William V. Hoier against Harry Kaplan and others. Demurrer to part of petition was sustained, and as to other part over

ruled, and from order of dismissal of part of

petition, to which demurrer was sustained, petitioner appealed to the Appellate Court for the First District, which denied a motion to dismiss appeal and affirmed decree of dismissal, and petitioner appeals on a certificate of importance. Affirmed.

An appeal lies from that part of a decree which deals with a particular subject, and such appeal operates as a severance in trial court of parties and questions not concerned in appeal; test being whether such decree or order determines ultimate rights of parties, with respect to distinct matters which have no bearing on other matters left for further consider-cago, of counsel), for. appellees.

Stein, Mayer & David, of Chicago (Sigmund W. David and Louis W. Reinecker, Jr., both of Chicago, of counsel), for appellant. Hyman J. Rosenberg, of Chicago (Abraham Miller and Irving Zimmerman, both of Chi

ation.

3. Appeal and error 80(6)-Order of dismissal of petition with respect to certain items held appealable.

On petition for mechanic's lien, circuit court's order of dismissal of petition, so far as termined finally rights of parties with reference to those items, and hence was appealable.

certain enumerated items were concerned, de

DE YOUNG, J. The appellees, Harry Kaplan, Abe Sachs, and Salomon Bin, as owners, on August 10, 1921, entered into a contract with William V. Hoier, doing business as the William V. Hoier Company, the appellant, by which the latter agreed to install, according to drawings and specifications, a heating and ventilating system in the building then to be erected at 2039 and 2041 West North ave4. Mechanics' liens 35-Furnishing heat innue, Chicago. Construction of the building bewinter construction of building held not lienable item; "used in construction," "used in gan in the autumn of 1921, and the owners desired that operations continue uninterruptbuilding or improvement." Petitioner held not entitled, under Mechan-edly during the ensuing winter months. To ic's Lien Act, § 7, as amended in 1913 (Laws 1913, p. 401), to lien for furnishing temporary heat in winter construction of building, for protection of plaster and cement work, or for workmen's comfort; phrases in section 7, "used in said building or improvement" and "used in construction," denoting use as part of construction, so that material becomes part of completed structure.

5. Mechanics' liens 5-Party seeking to enforce lien must bring himself strictly within statute.

Remedy by mechanic's lien is in addition to ordinary remedies afforded by common law, and is a privilege enjoyed by one class of community above other classes, and party seeking to enforce such lien must bring himself strict

ly within statute.

6. Mechanics' liens

35-Computation of items as part of wages paid or of contract price held not to make such items lienable; "labor"; "material."

That petitioner, who contracted to install heating system in building to be erected, included items for public liability and workmen's compensation insurance, in fixing contract price, held not to make such items either labor or material, within Mechanic's Lien Act.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Labor; Material.]

proceed with the interior work, it became necessary to furnish heat during construction, and this was done by the appellant, upon written orders from the appellees. He installed radiators temporarily, by which heat was maintained 24 hours per day from January 19th to March 31st, and during shorter periods until May 11, 1922. This work was not specified in the contract, but the appellant made claim therefor as an extra in the following items: Labor furnished in maintaining heat, $4,551; public liability insurance, 65 cents and $12.74; and workmen's compensation insurance, $3.68 and $71.91. The claim, among others, was not paid, and the appellant filed his reamended petition in the circuit court of Cook county for a mechanic's lien. To this petition the appellees filed a general and special demurrer, which was sustained and the petition dismissed, so far as the items above enumerated were concerned. The demurrer as to the rest of the

petition was overruled. From the order of dismissal, the petitioner appealed to the Appellate Court for the First District. In that court the appellees moved to dismiss the appeal, asserting that it had not been taken from a final order. The motion was denied, and upon a review the decree of the circuit court was affirmed. The Appellate Court

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

granted a certificate of importance, and the case is here by appeal from that court.

ute, since the material had not become a part of the completed structure. In 1913 (Laws 1913, p. 400) the act was amended by including within its scope "forms or formwork used in the process of construction where ce ment, concrete or like material is used." This amendment authorized a lien for such forms when used in the process of construction in the manner specified, even though they did not become a part of the complet

could be enforced for such forms, it became necessary to amend the statute by making specific provision for them, and until such provision was made their use in the process of construction afforded no basis for a lien. The rule of strict construction was consistently applied.

[1-3] The record presents two questions: First, whether the order of dismissal by the circuit court was appealable; and, second, whether a mechanic's lien, under our statute, can be maintained for the items claimed. A judgment at law is a unit. A decree in equity may have the effect of several separate decrees. Walker v. Montgomery, 236 Ill. 244, 86 N. E, 240. An appeal may be tak-ed building or improvement. Before a lien en from that part of a decree which deals with a particular subject, and such an appeal operates as a severance in the trial court of the parties and questions not concerned in the appeal. Mussey v. Shaw, 274 Ill. 351, 113 N. E. 605. The test is whether the decree or order appealed from determines the ultimate rights of the parties, with respect to distinct matters which have no bearing on other matters left for further consideration. Sebree v. Sebree, 293 Ill. 228, 127 N. E. 392; City of Park Ridge v. Murphy, 258 Ill. 365, 101 N. E. 524; People v. Vogt, 262 Ill. 170, 104 N. E. 226. The circuit court, by its order of dismissal, determined finally the rights of the parties, with reference to a definite and separate portion of the subject-matter of the controversy; hence the was appealable, and the Appellate Court properly denied the motion to dismiss the appeal.

order

[4] Mechanics' liens are purely statutory. This court has uniformly held that the statute relative to mechanics' liens is in derogation of the common law, and that it must be strictly construed. Provost v. Shirk, 223 Ill. 468, 79 N. E. 178; North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N. E. 273. The lien should be enforced when the party brings himself within the provisions of the statute, but it should not be extended to cases not provided for by the language of the act, even though they may fall within its reason. Provost v. Shirk, supra. Prior to the revision of the mechanic's lien law in 1895 (Laws 1895, p. 225), it was well settled that a lien for materials could be enforced only to the extent of their actual use in the construction of the building or improvement. Compound Lumber Co. v. Murphy, 169 Ill. 343, 48 N. E. 472. Material might be used or work performed in process of construction which would not come within the act. An example is afforded by the services of an architect, in drawing plans and specifications, who was unable to maintain a lien therefor until an express provision of the statute authorized the lien. Adler v. World's Pastime Exposition Co., 126 Ill. 373, 18 N. E. 809: Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055. In Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N. E. 971, it was held that material used in making forms into which concrete was poured did not come within the provisions of the stat

Section 7 of the Mechanic's Lien Act, as amended in 1913, permits the enforcement of a lien, within certain limitations, if “it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction or for the purpose of being employed in the process of construction as a means for assisting in the erection of the building or improvement in what is commonly termed forms or formwork where concrete, cement or like material is used, in whole or in part." The words "to be used in said building or improvement," and "for the purpose of being used in construction;" have a more direct and immediate relation to the improvement than do the words "for the purpose of being employed in the process of construction as a means for assisting in the erection of the building," etc. "Used in said building or improvement" and "used in construction” denote use as a part of the construction, so that the material becomes a part of the completed structure. Rittenhouse & Embree Co. v. Brown & Co., supra. The words "used in the process of construction" were not in the act before the amendment of 1913, and are specifically limited to "forms or formwork where concrete, cement or like material is used." These words do not enlarge the act to cover any other means employed in the process of construction. Labor indirectly employed, unless it be upon forms put to the specified use, will not give rise to a lien. This amendment is one of several instances where the statute has been amended to include that which by strict construction before that time had been held not to be within its purview.

The petition of appellant, as reamended in amplification of the necessity for temporary heat in the building during its construction in the winter months, sets forth that concrete floors were laid and walls plastered, and that, without the heat, the floors would