chaser is not chargeable with notice of the respondents in answer to rule nisi are disputed, record of any of these instruments. Kerfoot or answer presents new and doubtful questions V. Cronin, 105 Ill. 609; Booker v. Booker, of law, court may make rule for information 208 Ill. 529, 70 N. E. 709, 100 Am, St. Rep. absolute, in order that questions at issue may 250.

receive full and final determination. [9] Cyrus N. Roberts acquired the title to 4. Quo warranto em43—When rule nisi grant. the land in 1882 and owned and had uninter ed on petition for leave to file information in rupted possession of it until his death, on nature of quo warranto will not be made abJanuary 18, 1920. The abstract shows a

solute stated. complete and connected chain of title from Where, on petition for leave to file inforthe government to him. Apart from the suit, mation in nature of quo warranto, facts shown the title was merchantable. If it were neces- by respondents in answer to rule nisi, are not sary, in order to establish a good title, that disputed, and questions of law involved may re

ceive as careful consideration upon original apan abstract show a perfect paper title, with. plication as if rule to show cause were made out fault, defect, or omission, although cured absolute, such questions may be thus determinby existing facts or lapse of time, land could ed in first instance without making rule absorarely, if ever, be sold. Attebery v. Blair, lute. 244 111. 363, 91 N. E. 475, 135 Am. St. Rep. 5. Quo warrantom43_Essentials petition for 342.

leave to file information in nature of quo war. [10] This record does not justify the refus.

ranto must possess stated. al to require specific performance of the con

Petition for leave to file information in natract made by the parties. The specific per- ture of quo warranto must recite facts-not formance of a contract to convey land is as mere conclusions of pleader--sufficient to satismuch a matter of course as an action of dam- fy court or judge of existence of competent ages for its breach, and a court of equity grounds for the proceeding, and must be full, will ordinarily grant such relief where the positive, and so drawn that perjury may be ascontract is valid at law, fairly entered into, signed thereon, if material allegation is false. and unobjectionable in any of those features 6. Schools and school districts o 22–Act valiwhich address themselves to the chancellor's dating consolidated high school districts held discretion. Anderson V. Anderson, 251 Ill.

valid. 415, 96 N. E. 265, Ann. Cas. 1912C, 556. Act May 10, 1921 (Laws 1921, p. 797), vali

The decree will be reversed, and the cause dating consolidated high school districts under remanded, with directions to enter a decree certain conditions, held valid. in conformity with the prayer of the bill.

7. Evidence (5(2) - Judicial notice taken Reversed and remanded, with directions.

that high school students may travel distance

of 9 miles in going to and from school. (314 Ill. 51)

Supreme Court may judicially notice that PEOPLE ex rel. LUTZ v. FRANCE et al.

distance of 9 miles may be traveled by high (No. 14953.)

school students in going to and from school by

ordinary methods employed or which may be (Supreme Court of Illinois. Oct. 28, 1924.) employed, particularly where condition of roads

or streams or other conditions do not interfere 1. Quo warranto Omw43—How court may act on

with travel, petition for information in nature of quo warranto and what respondents may show stated. 8. Schools and school districts w 42(2)

If petition for leave to file information in "Compact" contiguous territory of community nature of quo warranto shows prima facie cause high school district defined. for filing information, court may act upon peti Territory of community high school district tion or may enter a rule nisi upon respondents is compact and contiguous within constitutional to show cause why information should not be

sense (Const. art. 8, § 1), when it is so closely filed, and in response thereto respondents may united and so nearly adjacent to school building show by counter affidavits any sufficient reasons that all children residing in district may confor denying petition.

veniently travel from their homes to school 2. Quo warranto em Granting or with hold building and return in reasonable time and with ing of leave to file information in nature of reasonable degree of comfort; "compact,” as

found in statute authorizing organization of quo warranto is discretionary with court.

community high school districts, meaning con. Granting or withholding of leave to file in centrated, or close or near to certain center. formation in nature of quo warranto rests in sound discretion of court to which application

(Ed. Note.-For other definitions, see Words is made, notwithstanding existence of substan- and Phrases, First and Second Series, Comtial defect in title by which office or franchise is pact.] held.

9. Quo warranto en 43—Allegations held not to 3. Quo warranto 43—When and why rule show school center was not reasonably ac

nisi granted on petition for leave to file in. cessible to all pupils of district. formation in nature of quo warranto may be Allegations of petition for leave to file inmade absolute stated.

formation in nature of quo warranto against Where, on petition for leave to file informa- persons acting as board of education of comtion in nature of quo warranto, facts shown by munity 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 upon the respondents to show cause why the district was organized.

information should not be filed, and in re

sponse to such rule the respondents may Appeal from Circuit Court, Fulton County ; show by counter affidavits any sufficient reaWalter C. Frank, Judge.

sons for denying the petition. People v. Petition by the People, on the relation of Waite, 70 Ill. 25; People v. Moore, 73 Ill. Orval Lutz, for leave to file information in 132; People v. Golden Rule, 114 Ill. 34, 28 nature of quo' warranto against Kersey N. E. 383; People v. McFall, 124 I11. 642, 17 France and others as the Board of Educa- N. E. 63. The granting or withholding leave tion of Community High School District No. to file an information rests in the sound dis226 in the Counties of Fulton and McDon- cretion of the court to which the application ough. From an order refusing leave to file is made, even though there is a substantial information and dismissing petition, relator defect in the title by which the office or appeals. Affirmed.

franchise is held. People v. Waite, supra ; Floyd F. Putman, State's Atty., of Can- People v. Moore, supra; People v. Callaghun, ton, and Flack, Flack & Kerman, of Macomb, Co., 88 Ill. 537. If the facts shown by re

83 Ill. 128; People v. North Chicago Railway for appellant.

E. L Weber, Harvey H. Atherton, and Glenn spondents in answer to the rule are disputed, Ratcliff, all of Lewistown, for appellees.

or if the answer presents new and doubtful questions of law, the court may make the

rule for the information absolute, in order DUNCAN, C. J. Floyd F. Putman, state's that questions at issue may receive a full attorney of Fulton county, presented to the and final determination. If, however, the circuit court of said county, on March 14, facts are not disputed, and if the questions 1921, his petition on the relation of Orval of law involved may receive as full and careLutz, a citizen, resident and taxpayer in ter- ful consideration upon the original applicaritory constituting community high school tion as if the rule to show cause were made district No. 226 in the counties of Fulton and absolute, such questions may be thus deterMcDonough, for leave to file an information mined in the first instance without making against the persons acting as a board of the rule absolute. People v. McFall, supra. education of that district, challenging the le- The petition must recite facts-not mere gal existence of such district, and calling conclusions of the pleader-sufficient to satisupon them to show by what warrant and au- fy the court or judge that there are compethority they attempted to hold office as a tent grounds for the proceeding, and the peboard of education. The petition was veri-y tition must be full and positive, and be fied by the affidavit of Lutz, and gave a copy drawn in such manner that perjury may be of the notice of an election to organize the assigned thereon if any material allegation district, but alleged that the county super-contained therein is false. People v. Union intendent of schools did not post 10 copies Elevated Railway Co., 263 Ill. 32, 105 N. E. of said notice 10 days prior to the election, 12, Ann. Cas. 1915C, 388; People v. Roberts, and failed to comply with the statute in that 279 Ill. 540, 117 N. E. 68; People v. Graham, regard. It alleged that the territory com- 301 Ill. 446, 134 N. E. 57. prised within the pretended district did not Apparently a rule nisi was entered in this consist of compact territory, but a part of case. At any rate, affidavits were filed in the it 2 miles in width and 5 miles in length ex case by appellees for the purpose of showing tended west from the main body of the ter- cause why the information should not be ritory, forming an L; that some parts of filed. The affidavit of P. H. Hellyer, county the territory were 9 miles from the village of superintendent of schools, is to the effect that Table Grove, where the school was located; he posted 10 notices of the election. The that much of the territory was nearer to affidavit of C. L. Swedell, one of the reAdair, in McDonough county, than to Table spondents, states that the village of Table Grove, and Adair was the community center Grove is the center of the population of the of much of the territory; that there was community high school district; that all the located in Adair a community high school; lands and the territory are accessible to the that both men and women voted at the elec- village; that the part of the district in Mction, and separate ballot boxes were not kept Donough county 2 miles wide and running for men and women, but the votes were com west five miles is accessible to the village, mingled and counted together; that there and the public highways of said part are were 243 votes cast for the community high among the best highways leading into the school and 29 against it; and that the ter- village; that no part is cut off or separated ritory was of such form and so situated as by a creek or river which during flood times not to satisfy the constitutional requirement would make it impossible for the inhabitants for an efficient system of free schools.

living beyond the creek or river to reach the [1-5] When such a petition is presented to village by public highway. There was a plat a court, if it shows prima facie cause for the of the alleged high school district annexed fling of an information, the court may act to the petition, and appellees filed a map, in

145 N.E.-16

colors; of the territory in question and of , and extent, as shown by the map attached three surrounding high school districts, the to it; that some parts of the territory are south one of which was Vermont community nine miles from the village of Table Grove; high school district, the east one of which and that many high school students will be was Ipava community high school district, required to travel "nearly 9 miles." The and the northwest one of which was Adair plat or map made a part of the petition community high school district; that there does not confirm such statements, as is alis no nonhigh school territory between the ready shown; the greatest distance to any district in question and the other high school part of the district being not to exceed seven districts, except a strip of land 12 mile north miles. This court has never ruled that the and south by 2 miles east and west, which school center should be within walking dislies about the center of the border line of the tance from all parts of the district. We may Vermont high school district and Table Grove take judicial notice of the fact that the disdistrict. There was also an affidavit of Hell- | tance of even 9 miles may be traveled by yer that elections for the organization of the high school students by the ordinary methods districts of Table Grove, Ipava, and Vermont of travel employed or that may be employed were all held the same day, and affidavits of in this state, and particularly where there is Swedell and Rush Keating that 106 women no condition of roads or streams or other and 167 men voted at the Table Grove Elec- conditions that interfere with travel. No tion, and that there were only 29 votes polled such conditions are alleged in this petition. against it. The plat shows that the distance The word "compact," as found in the provifrom the community center of the Table sions of the statute under which this comGrove district to the northeast corner thereof munity high school district was organized, does not exceed 612 or 7 miles, and that the as defined by the late decisions of this court, distance to the extreme southwest part of means concentrated, or close or near to a the district does not exceed 612 miles, and certain center. The territory of a communithat these two corners of the district are ty high school district is compact and conthe farthest points from the center. The tiguous, in the constitutional sense, when it court refused leave to file the information, is so closely united and so nearly adjacent and dismissed the petition at the costs of the to the school building that all the children relator.

residing in the district may conveniently [6] It appears from the record that the travel from their homes to the school buildcourt denied leave to file the information up- ing and return in a reasonable length of on the ground that all defects in the proceed time and with a reasonable degree of coming to organize the district were cured by the fort. People v. Young, 301 Ill. 67, 133 N. E. validating act of May 10, 1921 (Laws 1921, p. 693; People v. Kirkham, 301 111. 45, 133 N. 797), except as to appellant's contention that E, 696; People v. Cowen, 306 Ill. 330, 137 N. the school center was not reasonably accessi. E. 836; People v. Crawford, 310 IHI. 205, 141 ble to all the pupils of the district, and also N. E. 725. This definition was framed in held that the allegations of the petition were view of the provisions of section 1 of article not sufficiently specific to show that the dis- 8 of our Constitution, providing that "the trict violated appellant's constitutional rights. General Assembly shall provide a thorough He concedes that the court properly held and efficient system of free schools, whereby that all defects were cured by the validating all the children of this state may receive a act except the constitutional question, under good common school education," and in view the holding of People v. Opie, 301 Ill. 11, 133 of the further fact that it has been the N. E. 689, but insists also that that decision constant practice in this state to form public is wrong and should not be followed. That school districts so that all the pupils thereof decision has been repeatedly followed and could reach the school house from their reaffirmed by this court in a number of cases, homes while attending school. The idea now including the cases of People v. Baird, 307 crystallized and definitely established by our Ill. 503, 139 N. E. 132, and People v. Price, decisions is that parents shall not be com310 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 school centers and pay the expenses the constitutionality of the validating act. thereof from their own private purses while

[7-9] The court properly ruled that the the children are attending school in their petition did not contain allegations sufficient own public school districts, where the people to show that any of the pupils in the high of the district are burdened with all the costs school district could not conveniently travel and expenses of such schools by public taxafrom their homes to and from the school cen- tion, when their children are in ordinary ter in time to have the benefit of the high health and physical condition. school. The petition is very general in this The court properly denied leave to file the particular, simply stating that the communi- information, and such order is affirmed. ty high school district is of great magnitude

Order affirmed.

(145 N.E.) (313 III. 448)

Appeal from Second Branch Appellate HOIER v. KAPLAN et al. (No. 16001.) Court, First District, on Appeal from Cir. (Supreme Court of Illinois.

cuit Court, Cook County; Hugo M. Friend, Oct. 28, 1924.)

Judge. 1. Equity 415—Judgment eml-Judgment

Petition in circuit court for mechanic's lien at law is unit, but decree in equity may con- by William V. Hoier against Harry Kaplan stitute several decrees.

and others. Demurrer to part of petition A judgment at law is a unit, but a decree in equity may have the effect of several sepa- ruled, and from order of dismissal of part of

was sustained, and as to other part overrate decrees.

petition, to which demurrer was sustained, 2. Appeal and error em 80(6) - Appeal lies petitioner appealed to the Appellate Court

from part of decree dealing with particular for the First District; which denied a motion subject, and operates as severance in trial to dismiss appeal and affirmed decree of discourt of parties and questions not concerned missal, and petitioner appeals on a certifiin appeal.

cate of importance. Affirmed. An appeal lies from that part of a decree which deals with a particular subject, and such Stein, Mayer & David, of Chicago (Sig. appeal operates as a severance in trial court mund W. David and Louis W. Reinecker, Jr., of parties and questions not concerned in ap- both of Chicago, of counsel), for appellant. peal; test being whether such decree or order

Hyman J. Rosenberg, of Chicago (Abraham determines ultimate rights of parties, with respect to distinct matters which have no bear. Miller and Irving Zimmerman, both of Chiing on other matters left for further consider-cago, of counsel), for, appellees. ation.

DE YOUNG, J. The appellees, Harry Kap3. Appeal and error Om 80(6)–Order of dis- lan, Abe Sachs, and Salomon Bin, as owners,

missal of petition with respect to certain on August 10, 1921, entered into a contract items held appealable.

with William V. Hoier, doing business as the On petition for mechanic's lien, circuit William V. Hoier Company, the appellant, court's order of dismissal of petition, so far as by which the latter agreed to install, accordcertain enumerated items were concerned, determined finally rights of parties with refer. ing to drawings and specifications, a heating ence to those items, and hence was appealable. and ventilating system in the building then to

be erected at 2039 and 2041 West North ave4. Mechanics' liens Cm35-Furnishing heat in nue, Chicago. Construction of the building be

winter 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."

edly during the ensuing winter months. To Petitioner held not entitled, under Mechanic's Lien Act, $ 7, as amended in 1913 (Laws proceed with the interior work, it became 1913, p. 401), to lien for furnishing temporary necessary to furnish heat during construcheat in winter construction of building, for tion, and this was done by the appellant, upprotection of plaster and cement work, or for on written orders from the appellees. He inworkmen's comfort; phrases in section 7, stalled radiators temporarily, by which heat "used in said building or improvement" and was maintained 24 hours per day from Jan"used in construction,” denoting use as part uary 19th to March 31st, and during shorter of construction, so that material becomes part periods until May 11, 1922. This work was of completed structure.

not specified in the contract, but the appel5. Mechanics' liens 5-Party seeking to en- | lant made claim therefor as an extra in the

force lien must bring himself strictly within following items: Labor furnished in mainstatute.

taining heat, $4,551; public liability insurRemedy by mechanic's lien is in addition to ance, 65 cents and $12.74; and workmen's ordinary remedies afforded by common law, compensation insurance, $3.68 and $71.91. and is a privilege enjoyed by one class of com- The claim, among others, was not paid, and munity above other classes, and party seeking the appellant filed his reamended petition in to enforce such lien must bring himself strict- the circuit court of Cook county for a mely within statute.

chanic's lien. To this petition the appellees 6. Mechanics' liens 35 - Computation of filed a general and special demurrer, which

items as part of wages paid or of contract was sustained and the petition dismissed, so price held not to make such items lienable; far as the items above enumerated were con. "labor"; "material.”

cerned. The demurrer as to the rest of the That petitioner, who contracted to install petition was overruled. From the order of heating system in building to be erected, in: dismissal, the petitioner appealed to the Apcluded items for public liability and workmen's compensation insurance, in fixing contract pellate Court for the First District. In that price, held not to make such items either labor court the appellees moved to dismiss the apor material, within Mechanic's Lien Act.

peal, asserting that it had not been taken [Ed. Note.-For other definitions, see Words from a final order. The motion was denied, and Phrases, First and Second Series, Labor; and upon a review the decree of the circuit Material.)

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 ute, since the material had not become a part case is here by appeal from that court. of the completed structure. In 1913 (Laws

[1-3] The record presents two questions: 1913, p. 400) the act was amended by includFirst, whether the order of dismissal by the ing within its scope “forms or formwork circuit court was appealable; and, second, used in the process of construction where cewhether a mechanic's lien, under our stat- ment, concrete or like material is used.” ute, can be maintained for the items claimed. This amendment authorized a lien for such A judgment at law is a unit. A decree in forms when used in the process of construcequity may have the effect of several sepa- tion in the manner specified, even though rate decrees. Walker v. Montgomery, 236 they did not become a part of the completIll. 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 could be enforced for such forms, it became with a particular subject, and such an ap necessary to amend the statute by making peal operates as a severance in the trial specific provision for them, and until such court of the parties and questions not con- provision was made their use in the process cerned in the appeal. Mussey y. Shaw, 274, of construction afforded no basis for a lien. Ill. 351, 113 N. E, 605. The test is wheth- The rule of strict construction was consister the decree or order appealed from deter- ently applied. mines the ultimate rights of the parties, with Section 7 of the Mechanic's Lien Act, as respect to distinct matters which have no amended in 1913, permits the enforcement bearing on other matters left for further con- of a lien, within certain limitations, if “it sideration. Sebree v. Sebree, 293 Ill. 228, is shown that such material was delivered 127 N. E. 392; City of Park Ridge v. Mur- either to said owner or his agent for such phy, 258 Ill. 365, 101 N. E. 524; People v. building or improvement, to be used in said Vogt, 262 Ill. 170, 104 N. E. 226. The circuit building or improvement, or at the place court, by its order of dismissal, determined | where said building or improvement was befinally the rights of the parties, with refer. ing constructed, for the purpose of being used ence to a definite and separate portion of the in construction or for the purpose of being subject-matter of the controversy; hence the employed in the process of construction as order was appealable, and the Appellate a means for assisting in the erection of the Court properly denied the motion to dismiss building or improvement in what is commonthe appeal.

ly termed forms or formwork where con[4] Mechanics' liens are purely statutory. I crete, cement or like material is used, in This court has uniformly held that the stat- whole or in part.” The words “to be used ute relative to mechanics' liens is in deroga- in said building or improvement," and "for tion of the common law, and that it must be the purpose of being used in construction;" strictly construed. Provost v. Shirk, 223 have a more direct and immediate relation Ill. 468, 79 N. E. 178; North Side Sash & to the improvement than do the words “for Door Co. v. Hecht, 295 Ill. 515, 129 N. E. 273. the purpose of being employed in the proThe lien should be enforced when the party cess of construction as a means for assisting brings himself within the provisions of the in the erection of the building," etc. "Used statute, but it should not be extended to cas- in said building or improvement" and "used es not provided for by the language of the in construction” denote use as a part of act, even though they may fall within its the construction, so that the material be

Provost v. Shirk, supra. Prior to comes a part of the completed structure. the revision of the mechanic's lien law in Rittenhouse & Embree Co. v. Brown & Co., 1895 (Laws 1895, p. 225), it was well settled | supra. The words "used in the process of that a lien for materials could be enforced construction” were not in the act before the only to the extent of their actual use in amendment of 1913, and are specifically lim. the construction of the building or improve-ited to "forms or formwork where concrete, ment. Compound Lumber Co. v. Murphy, 169 cement or like material is used." These Ill. 343, 48 N. E. 472. Material might be words do not enlarge the act to cover any used or work performed in process of con- other means employed in the process of construction which would not come within the struction. Labor indirectly employed, unless act. An example is afforded by the services it be upon forms put to the specified use, of an architect, in drawing plans and speci- will not give rise to a lien. This amendment fications, who was unable to maintain a lien is one of several instances where the statute therefor until an express provision of the has been amended to include that which by statute authorized the lien. Adler v. World's strict construction before that time had been Pastime Exposition Co., 126 Ill. 373, 18 N. held not to be within its purview. E. 809; Freeman V. Rinaker, 185 Ill. 172, The petition of appellant, as re&mended in 56 N. E. 1055. In Rittenhouse & Embree Co. amplification of the necessity for temporary v. Brown & Co., 254 Ill. 549, 98 N. E. 971, heat in the building during its construction it was held that material used in making in the winter months, sets forth that conforms into which concrete was poured did crete floors were laid and walls plastered, not come within the provisions of the stat- and that, without the heat, the floors would


« ForrigeFortsett »