rily implied from the power expressly con- could be invoked to sustain the ordinance ferred. Gundling v. City of Chicago, 176 Ill. here involved, all the other provisions of the 340, 52 N. E. 44, 48 L. R, A. 230; Spiegler v. statute which expressly confer the power to City of Chicago, 216 Ill. 114, 74 N. E. 718; license would be wholly unnecessary. Goodrich v. Busse, 247 Ill. 366, 93 N. E. 292, (11, 12] Subsection 61 is limited to certain 139 Am. St. Rep. 335, 20 Ann. Cas. 589; Pot- kinds and features of construction and is son v. City of Chicago, supra; Consumers not broad enough to include electrical work. Co. v. City of Chicago, 313 Ill. 408, 145 N. Subsection 63 confers the power to prevent E. 114.

the dangerous construction of the specific The city claims that the power to pass the things there enumerated, to regulate and ordinance in question and to license elec- prevent the carrying on of manufactories tricians and electrical work in buildings is dangerous in causing and promoting fires, derived from the following subsections of and to cause the buildings and indosures section 1 of article 5 of the Cities and Vile there defined which may be in a dangerous lages Act (Smith-Hurd Rev. St. 1923, c. 24, 8 state to be put in a safe condition. Even it 65):

the power to regulate and prevent the carry. "Fourth. To fix the amount, terms and man-ing on of manufactories dangerous in causner of issuing and revoking licenses."

ing and promoting fires includes the power "Sixty-First. To prescribe the thickness, to license such manufactories, yet the licensstrength, and manner of constructing stone, ing power would necessarily be limited to brick and other buildings and construction of manufactories of the character specified. fire escapes thereon."

The authority to regulate and prevent the "Sixty-Third. To prevent the dangerous construction and condition of chimneys, fireplaces, use of lights in stables, shops, and other hearths, stoves, stovepipes, ovens, boilers, and places conferred by the sixty-fifth subsection apparatus used in and about any building and can by no known rule of construction be held manufactory, and to cause the same to be re- to include the power to license here claimed. moved or placed in a safe condition, when con- The power given by the eighty-first subsecsidered dangerous; to regulate and prevent the tion is to direct the location and regulate carrying on of manufactories dangerous in the management and construction of packing causing and promoting fires;

and to houses, renderies, tallow chandleries, bone cause all such buildings and enclosures as may factories, soap factories, and tanneries. The be in a dangerous state to be put in a safe condition."

power so conferred is not general, but is lim“Sixty-Fifth. To regulate and prevent * ited to the particular businesses specified. The the use of lights in stables, shops, and other eighty-second subsection can be invoked for places.

no purpose, because it was held to be void “Sixty-sixth. To regulate the police of the in People v. Kaul, 302 Ill. 317, 134 N. E. 740. city or village and pass and enforce all necegBary police ordinances."

The authority to establish and maintain elec"Seventy-Fifth. To declare what shall be a trical appliances, granted by subsection 98, nuisance, and to abate the same

is confined to public buildings for fire and "Seventy-Eighth. To do all acts, make all police protection, and to privately owned regulations, which may be necessary or expedi- buildings when application is made therefor. ent for the promotion of health or the suppres- Each of these subsections is confined in its sion of disease." "Eighty-First. To direct the location and scope.

General words of description in a regulate the management and construction of statute following a specific enumeration are packing houses, renderies, tallow chandleries, limited to things of the same class or nature bone factories, soap factories, and tanneries as those specified. The express enumeration within the limits of the city.

of certain subjects and occupations in the "Eighty-Second. To control the location and several subsections over which the city is regulate the use and construction of breweries, given certain power or authority is by a distilleries.

“Ninety-Eighth. To establish and maintain well-known canon of construction the excluelectrical appliances in public buildings for fire sion of all other subjects and occupations. and police protection *

. in People v. City of Chicago, supra; Potson y. privately owned buildings for fire and police City of Chicago, supra. None of these subprotection application of the own- sections confer the power to license electri.

cians or to exact fees for inspecting electri“One Hundredth. To pass all ordinances, cal construction work. rules and make all regulations, proper or necessary, to carry into effect the powers grant

[13] Authority is given by subsection 66 ed. •

to regulate the police and to pass and enforce

all necessary police ordinances, but the en(10) The fourth subsection does not dele-tire police power of the state was not delegate unlimited licensing power. The author- gated to municipal corporations by this subity to fix the amount, terms, and manner of section, and it was not the intent of the Leg. issuing and revoking licenses has reference islature to confer unrestrained and unlimitto the subjects and occupations which by oth- ed police power upon them. People v. City er specific subsections the city is given the of Chicago, supra. This power may be callexpress power to license. If this subsectioned into exercise to make effective the pow

[ocr errors]

and *


er. * * * »

[ocr errors]


(146 N. E.) ers expressly given, but they are limited to such fees is void for want of authority to that object and none other, City of Chicago enact it. V. M. & M. Hotel Co., supra; City of Marion The decree of the circuit court will be V. Criolo, 278 Ill. 159, 115 N. E. 820; Stoes-reversed, and the cause remanded. sand v. Frank, 283 Ill. 271, 119 N. E. 300, L. Reversed and remanded. R. A. 1918D, 685; Moy v. City of Chicago, 309 Ill. 242, 140 N. E. 845; People v. City of Chicago, supra; Consumers Co. V. City of

(314 Ill. 286) Chicago, supra.

MARSHALL et al. V. PFEIFFER. [14] No relation, legally speaking, is per

(No. 16024.) ceived between the abatement of nuisances

(Supreme Court of Illinois. Oct. 28, 1924. authorized by subsection 75, or the doing of

Rehearing Denied Dec. 5, 1924.) acts and the making of regulations necessary or expedient to promote health or to sup-1. Dedication Om 19(5) - Implled agreement bepress disease permitted by subsection 78, and

tween all vendors and vendees of parts of

tract that streets remain open for use as the licensing of electricians and the impo

platted. sition of fees for the inspection of electrical

Original owner of tract, having complied construction work. Subsection 100, which with legal requirements in platting it, arrangeconfers the power to pass ordinances and ment of streets was part of consideration of make rules and regulations, is by the express purchase of each block or part, not only as beterms of the subsection limited to carrying tween original owner and purchasers from him, into effect the powers granted. It presup- dees; law implying mutual agreement by all

but as between all subsequent vendors and venposes the grant of authority with reference that streets shall always remain open for use to the particular subject or occupation, and as platted. it merely authorizes the passage of ordi

2. Easements 30(1)-Easemont appurte. nances and the making of rules and regula

nant to lot in tract because of plat and sales tions to make such authority effective. with reference to it cannot be lost merely by

[15] The question of what powers may be exercised by a municipality is for the Gen Easement appurtenant to each lot in tract eral Assembly and not for the courts. Yea- because of plat and sales with reference thereto don v. Clark, 276 Ill. 424, 114 N. E. 1023. is private property, which cannot be lost mereThe question here is whether the Legislature ly by nonuser without adverse possession. has, in fact, delegated to the city the power 3. Easements ww32-Requisites of adverse which it seeks to exercise, in direct terms or

possession of parts of streets stated. as necessarily incidental to some power ex

To constitute adverse possession of parts of pressly granted. The propriety of examin. been hostile in inception, adverse, actual, visi

legally platted streets possession must have ing and licensing electricians we are not ble, open, notorious, exclusive, continuous, and called upon to determine. It may be admit- under claim of ownership. ted that electricity is a dangerous agent, that fires often originate from crossed wires and

4. Easements em 32-Joinder in proceedings to

vacate streets evidence that possession was defective insulation, and that the regulation

not hostile. of electrical construction work and the li

That one in possession of part of street censing of electricians is not only salutary marked on plat joined with others in seeking but necessary. Regulations of a similar to have streets vacated is evidence that he did character have been sustained in other juris- not then claim to be owner, but was merely dictions Collins v. District of Columbia, 30 using street subject to public right to have it App. D. C. 212; Caven v. Coleman (Tex, Civ. opened when convenience of traveling public App.) 96 S. W. 774; Singer v. State, 72 md. required. 464, 19 A. 1044, 8 L. R. A. 551; Electric Im- 5. Estoppel Om70(1)-Doctrine of estoppel in provement Co. v. City and County of San pais inapplicable in suit to enjoin obstruction Francisco (C. C.) 45 F. 593, 13 L. R. A. 131; of platted streets by adjoining owners. City of Louisville v. Coulter, 177 Ky. 242,

Doctrine of estoppel in pais held not to 197 S. W. 819, L. R. A. 1918A, 811; People apply as against town lot owners suing to env. Warden, 144 N. Y. 529, 39 N. E. 686, 27 L. join obstruction of platted streets by adjoining R. A. 718.

owners, where the possession and use of the

latter, though long continued, was suffered by (16] The Factory Inspection Law of this plaintiffs only until changing conditions restate is limited to the inspection of wires quired opening of streets. and apparatus in factories and cannot be in-|

Farmer, Dunn, and Thompson, JJ., dissentvoked to sustain the ordinance in question ing. here. The General Assembly has not granted to a city or village the power to license

Appeal from Circuit Court, Clinton Counelectricians or to impose fees for inspecting ty; William B. Wright, Judge. electrical construction work, hence the ordi Suit by C. P. Marshall and others against Dance requiring such licenses and imposing August M. Pfeiffer and others. Decree for

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

complainants, and named defendant appeals. , owner of the block ho erected a board fence Affirmed.

extending from South Third to South Fourth Jonas & Branson, of Centralia, for appel- street in or near the center of Fayette street. lant.

This was later replaced with a hedge fence Murray & Niehoff, for appellees.

at the same location. After some years the

hedge fence was cut out and about five years HEARD, J. In the year 1861 Charles Floyd ago a barb-wire fence was erected. A fence Jones and Madison Miller, who were then was also built by Pfeiffer, together with the the owners of a certain tract of land located adjoining proprietor, in or near the center of in section 13, township 1 north, range 1, west the strip described as Clinton street, extendof the third principal meridian, in Clinton ing from South Third to South Fourth street, county, III., caused said tract to be surveyed which fence existed for many years. The and platted as a town site, the same being portions of Clinton and Fayette streets adknown as the town of Western Addition. joining appellant's premises have been used The plat complied with all the statutory re- part of the time for garden and part of the quirements. The plat was divided into eight time for pasture, but at no time have any blocks, and six strips of land were shown permanent structures or improvements been thereon as streets, three running east and erected thereon. west and designated as South Third, Fourth,

In 1884 the owners of all the blocks in the and Fifth streets, respectively, and three addition joined together and employed an running north and south, and designated at assistant county surveyor to take the neces. Fayette, Clinton, and Bond streets, respec-sary steps to have Fayette, Clinton, and Bond tively. Fayette and Bond streets were each streets vacated and a proper record thereof shown as 60 feet in width and Clinton street made, but he did nothing toward that end. as 64 feet in width. Block 3 is between Clin. In May, 1899, the owners of block 8 in the ton and Fayette streets. Western Addition town began selling off lots 71 feet wide and adjoins the city of Centralia on the west. It 180 feet long off the south end of that block. has never been incorporated or taken into In October, 1914, Ben Michael, who had be. the city. The original proprietors sold off come the owner of block 6 in the town, subthe eight blocks designated on the plat, each divided the south half of the block, and a in its entirety. By separate warranty deeds plat thereof was filed in the office of the refrom Jones and Miller, dated May 11, 1866, corder of deeds of Clinton county. Thereand June 6, 1866, Martin Pfeiffer, the father after portions of the block were sold and are of the appellant, acquired title to all of block now owned by different parties. In Septem 3. On September 10, 1868, he executed a ber, 1921, the Merchants' State Bank, which deed of the block to Nicholas Saul, and the had acquired title to blocks 4 and 5 in the same day Saul and his wife executed a deed town, subdivided the two blocks into 32 lots, thereof to Eleanora Pfeiffer. On October 28, calling the

Pullen's subdivision of 1869, Eleanora conveyed the property to Mar- blocks 4 and 5 of the town of Western Adtin Pfeiffer. Pfeiffer died about 1888. March dition, and several lots therein were sold to 8, 1912, the master in chancery of the circuit various parties. From the time the town court of Clinton county, as the result of a was platted to the time of the commencesale growing out of the partition of land own- ment of the suit all the transfers of real esed by Pfeiffer, conveyed the same to appel- tate therein which were made were made by lant. Pfeiffer and his successors in title oc- lots or blocks with reference to the plat, and cupied block 3 from 1866 to the time of the no conveyance was ever made covering any commencement of this suit.

portion of Bond, Clinton, or Fayette street. When the town of Western Addition was No taxes were ever paid on any portion of laid out it was prairie land. The east and said streets after the same were platted. west streets were opened to the public with Prior to the bringing of this suit additions out delay in order to give access to the city to the city of Centralia were laid out and built of Centralia, but at that time there was no up to the north and south of the town of particular necessity for travel to the north Western Addition. The subdivisions made in and south in the town. The town and the the town resulted in the erection of a numsurrounding territory for a number of years ber of residences therein, and a necessity were sparsely settled, and the public high- arose for finding ways to the north and south way authorities did not immediately take for the residents of the town and for the over Bond, Clinton, and Fayette streets. general public. A demand was made by sev. Thereupon each adjacent owner of the blocks eral of the property owners in the town upon extended his dominion to the center of the the commissioner of highways of the town of north and south street adjoining his proper- Brookside, in which the addition in question ty, and for many years some of the land own- is situated, to cause the three streets in ques. ers have had these streets fenced, so that tion to be opened. The commissioner then they had the appearance of being the prop- served notice on the parties who were in poserty of the adjacent lot or block owner. session of said streets to remove the fences Shortly after Martin Pfeiffer became the which they had erected on such streets, but


(145 N.E.) the fences were not removed. Appellant and for use as platted. Clark v. McCormick, 174 other defendants refusing to allow the streets Ill. 164, 51 N. E, 215; Corning & Co. v. Woolto be opened, complainants, who are all own- ner, 206 Ill. 190, 69 N. E. 53; Wattles v. ers of real estate in the town, filed a bill in Village of McHenry, 305 Ill. 189, 137 N. E. chancery against appellant and the other 114. persons who were encroaching upon the (2-5) The easement which was appurtenant streets to enjoin them from obstructing the to each lot by reason of the existence of the same and from preventing the same from plat and the sales with reference to it was being opened up for the use of complainants private property. It could not be lost merely and the general public. Appellant filed an by nonuser where there was no adverse posanswer to the bill, in which he claimed that session (Swedish Lutheran Church v. Jackthe strips of land in question had never been son, 229 Ill. 506, 82 N. E. 348), and to constiused or opened to the public as streets, and tute adverse possession such possession must claimed title thereto by prescription. A trial have been hostile in its inception, adverse, was had before the court, which resulted in actual, visible, open, notorious, exclusive, cona decree for complainants, finding that ap- tinuous, and under claim of ownership. pellant had no right or title in and to the There is no evidence in the record that the portions of land in question, and decreed possession of appellant's father of the porthat Bond, Clinton, and Fayette streets as tion of the street in question was hostile in they appear upon the plat of the town of its inception or that his possession was unWestern Addition be opened to public travel, der claim of ownership, but the fact that in and that all persons then maintaining any 1884 he joined with others in seeking to have obstructions upon said streets remove the the streets in question vacated is evidence same and surrender up the streets to the that he did not then claim to be the owner of commissioner of highways of the town on or such streets but was merely using the same before the 1st day of July, 1924. From this subject to the right of the public to have the decree appellant alone has perfected an ap- streets opened when the convenience of the peal to this court.

traveling public required the same to be The sole question involved in this case is opened. There is no evidence in the record whether or not the appellant, August M. that either the possession of appellant or of Pfeiffer, who is the owner of block 3 of his father was under claim of ownership. Western Addition, in the township of Brook- The doctrine of estoppel in pais does not apside, Clinton county, Ili., can be required to ply to the facts of the present case. open for use as a street a certain strip of The decree of the circuit court is in acground 37 feet in width, extending north and cordance with the facts and the law applicasouth along the west side of the block, and ble thereto, and is therefore affirmed. another strip 30 feet in width along the east Decree affirmed. side of the block. The bill of complaint as filed proceeds up

FARMER, DUNN, and THOMPSON, JJ., on two theories: First, that the public has

dissenting. acquired rights in said strips by virtue of

(314 Ill. 296) their dedication as streets by the original PEOPLE V. ARTHUR. (No. 15954.) proprietors; and, secondly, that the com

Oct. 28, 1924. plainants, as owners of lots and blocks in (Supreme Court of Illinois.

Rehearing Denied Dec. 4, 1924.)
Western Addition, purchased their property
on the faith of the original plat of Western 1. Criminal law Omw 126(1)-Denial of change
Addition and for said reason have the right

of venue for local prejudice held error.
to have all of the streets shown on the plat of venue for local prejudice, where public feel-

It was error to deny a motion for change forever kept open for their use and for the ing was such that sheriff deemed it wise to use of the public.

remove accused from the county for a time. [1] The original owner of the tract of land in question having complied with the require- 2. Criminal law Cm 814(11)-Error to charge ments of law in platting the same, the ar

on alibi, where there was no such defense. rangement of streets formed a part of the

It was error to instruct jury on subject of consideration of the purchase of each block alibi, when no such defense was made. or part thereof, not only as between the orig. 3. Criminal law Fww516—"Confession” limited nal proprietor of the plat and those who pur

to acknowledgment of guilt of crime, or facts chased from him, but also as between all

necessarily implying it. subsequent vendors and vendees. Jones and

"Confession” is limited to acknowledgment Miller, the original proprietors, sold to their of guilt of crime or of facts which directly and

necessarily imply it, and there is distinction vendees the rights and privileges of the between confessions and admissions of fact streets, and each subsequent vendor passed tending to establish guilt. such rights to his vendee. The law implies [Ed. Note.-For other definitions, see Words mutual agreements between all such parties and Phrases, First and Second Series, Confesthat the streets shall always remain open sion.]

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

[ocr errors]
[ocr errors]

4. Criminal law Om516_Statements of defend. 24, 1921, all the family except defendant ant held not confessions.

went to visit friends some distance Statements of defendant, “I shot him," "I away, leaving defendant at the home alone, killed him," "They say I killed him,' were not and did not return until 2 o'clock in the confessions, where name of no person was men

afternoon of Saturday, December 31. Mar. tioned and witnesses did not know whether tin visited defendant at the Arthur home what was said by defendant referred to person Friday afternoon, December 30. Gibson, a or not.

witness for the people, testified he was at 5. Criminal law Om814(16)-Giving of instruc- the Arthur home at the time, and that the

tions concerning confessions held prejudicial relations of defendant and Martin were error.

friendly. The same evening, somewhere in Giving of instructions concerning confes- the neighborhood of 7 o'clock, defendant sions of defendant held prejudicial error, where drove to Monticello in his Ford runabout, jury might have understood them as referring

got Martin, and the two drove to the Arthur to declarations not amounting to confessions.

home. Before leaving town they, or one of 6. Homicide Om 348—There must be no preju: them, . bought milk and oysters, which they

dicial error to justify affirmance of Judgment took to the Arthur home, cooked, and ate assessing extreme penalty for murder.

for supper.

Defendant claims that after Where extreme penalty for murder is fixed, in addition to proof of guilt being reasonably supper, somewhere around 9 o'clock, he

took Martin in his Ford runabout to Monticlear, there must be no prejudicial error committed during trial, if reviewing court is justi-cello; that Martin said he had agreed to fied in affirming judgment.

meet some parties there; that when they

arrived in front of Russel's barber shop two Error to Circuit Court, Piatt County ;) men were standing on the sidewalk near a George A. Sentel, Judge.

Ford car parked at the curb, and Martin George Opal Arthur was convicted of mur- said, “There they are now,” jumped out of der, and brings error, Reversed and re

the car, and defendant drove home. manded.

There is no evidence of Martin having

been seen alive by any one but defendant Grover C. Hoff, A. F. Miller, and W. F. after he went home with defendant early Gray, all of Clinton (C. D. Bradley, of Chica- in the evening. His body was found Thursgo, of counsel), for plaintiff in error. Edward J. Brundage, Atty. Gen., and Burl at the Croninger bridge, about 13 miles

day, January 5, 1922, in the Sangamon river, A. Edie, State's Atty., James L. Hicks, and

southwest of Monticello. It was weighted Charles F. Mansfield, all of Monticello, for down with a piece of stone in a gunnysack, the People.

fastened to the body with wire. The arms

and legs were bound up with wire. There FARMER, J. Plaintiff in error, George were bullet holes in the head and the skull Opal Arthur (hereafter called defendant),

was badly crushed, showing conclusively has sued out this writ of error to review a

that Martin had been murdered and his body judgment of the circuit court of Piatt coun- thrown into the river so weighted and ty on a conviction for murder and inflicting bound that it would not rise again. Sunday the death penalty.

afternoon, January 1, Martin's sister, Mrs. Defendant is a single man about 30 years Rudisill, called the Arthur home by teleold and lived with his parents on a rented phone and inquired if defendant knew anyfarm about 274 miles south of Monticello, thing of the whereabouts of Martin, who the county seat. He had served overseas with had not been seen since Friday evening. Dethe American Expeditionary Forces, and fendant got in his car, drove to the Martin was discharged in August, 1919, after the home, and talked with Mrs. Martin and her close of the World War, and returned to daughter, Mrs. Rudisill. He told them of his parents' home. He was employed by: J. Martin being at his home Friday evening P. Kratz, owner of a considerable amount of and of their oyster supper there, and said farm land, as choreman at the Kratz home- he then drove Martin to town to meet some stead, which was about midway between parties he said he had an appointment with, his father's home and Monticello. Charles and told Mrs. Martin and her daughter about Martin, the deceased, was about 20 years where Martin got out of the car, of two old, single, and the son of David B. Martin, men on the sidewalk, and what Martin a stock buyer, who resided in Monticello. said as he saw them and of his getting out Martin and defendant were intimate friends of the car. Apparently Mrs. Martin and her and associates. At the time of his death, daughter suspected defendant of either and for considerable time prior thereto, Mar- knowledge of or responsibility for the distin was employed as an automobile mechan- appearance of Martin. Mrs. Martin asked ic at the garage of his brother-in-law, George defendant if he would mislead one of her Rudisill. Defendant's father's family con- children, and said she did not trust any sisted of the father, J. W. Arthur, his wife, one and would not trust defendant. He two daughters, and defendant. December | denied knowing anything about what became

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

« ForrigeFortsett »