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rily implied from the power expressly con- f 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, 139 Am. St. Rep. 335, 20 Ann. Cas. 589; Potson v. City of Chicago, supra; Consumers Co. v. City of Chicago, 313 Ill. 408, 145 N. E. 114.

The city claims that the power to pass the ordinance in question and to license electricians and electrical work in buildings is derived from the following subsections of section 1 of article 5 of the Cities and Villages Act (Smith-Hurd Rev. St. 1923, c. 24, 8 65):

[11, 12] Subsection 61 is limited to certain kinds and features of construction and is not broad enough to include electrical work. Subsection 63 confers the power to prevent the dangerous construction of the specific things there enumerated, to regulate and prevent the carrying on of manufactories dangerous in causing and promoting fires, and to cause the buildings and inclosures there defined which may be in a dangerous state to be put in a safe condition. Even if 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."

"Sixty-First. To prescribe the thickness, strength, and manner of constructing stone, brick and other buildings and construction of fire escapes thereon."

"Sixty-Third. To prevent the dangerous construction and condition of chimneys, fireplaces, hearths, stoves, stovepipes, ovens, boilers, and apparatus used in and about any building and manufactory, and to cause the same to be removed or placed in a safe condition, when considered dangerous; to regulate and prevent the carrying on of manufactories dangerous in causing and promoting fires; *

and to

ing and promoting fires includes the power to license such manufactories, yet the licensing power would necessarily be limited to manufactories of the character specified. The authority to regulate and prevent the use of lights in stables, shops, and other places conferred by the sixty-fifth subsection can by no known rule of construction be held to include the power to license here claimed. The power given by the eighty-first subsection is to direct the location and regulate the management and construction of packing houses, renderies, tallow chandleries, bone factories, soap factories, and tanneries. The power so conferred is not general, but is lim**ited to the particular businesses specified. The eighty-second subsection can be invoked for no purpose, because it was held to be void in People v. Kaul, 302 Ill. 317, 134 N. E. 740. The authority to establish and maintain electrical appliances, granted by subsection 98, 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."

cause all such buildings and enclosures as may be in a dangerous state to be put in a safe condition."

"Sixty-Fifth. To regulate and prevent the use of lights in stables, shops, and other places.

"Sixty-sixth. To regulate the police of the city or village and pass and enforce all necessary police ordinances."

"Seventy-Fifth. To declare what shall be a nuisance, and to abate the same

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"Eighty-First. To direct the location and regulate the management and construction of packing houses, renderies, tallow chandleries, bone factories, soap factories, and tanneries within the limits of the city. *

"Eighty-Second. To control the location and regulate the use and construction of breweries,

distilleries.

"Ninety-Eighth. To establish and maintain electrical appliances in public buildings for fire and police protection * and * * in privately owned buildings for fire and police protection upon application of the own

er.

"One-Hundredth. To pass all ordinances, rules and make all regulations, proper or necessary, to carry into effect the powers granted.

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scope.

General words of description in a statute following a specific enumeration are limited to things of the same class or nature as those specified. The express enumeration of certain subjects and occupations in the several subsections over which the city is given certain power or authority is by a well-known canon of construction the exclusion of all other subjects and occupations. People v. City of Chicago, supra; Potson v. City of Chicago, supra. None of these subsections confer the power to license electricians or to exact fees for inspecting electrical construction work.

[13] Authority is given by subsection 66 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 Legissuing 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

(145 N.E.)

ers expressly given, but they are limited to that object and none other. City of Chicago v. M. & M. Hotel Co., supra; City of Marion v. Criolo, 278 Ill. 159, 115 N. E. 820; Stoessand v. Frank, 283 Ill. 271, 119 N. E. 300, L. R. A. 1918D, 685; Moy v. City of Chicago, 309 III. 242, 140 N. E. 845; People v. City of Chicago, supra; Consumers Co. v. City of Chicago, supra.

such fees is void for want of authority to enact it.

The decree of the circuit court will be reversed, and the cause remanded. Reversed and remanded.

(314 III. 286)

MARSHALL et al. v. PFEIFFER.
(No. 16024.)

(Supreme Court of Illinois. Oct. 28, 1924.
Rehearing Denied Dec. 5, 1924.)

[14] No relation, legally speaking, is perceived between the abatement of nuisances authorized by subsection 75, or the doing of acts and the making of regulations necessary or expedient to promote health or to sup-1. press disease permitted by subsection 78, and the licensing of electricians and the imposition of fees for the inspection of electrical construction work. Subsection 100, which confers the power to pass ordinances and make rules and regulations, is by the express terms of the subsection limited to carrying into effect the powers granted. It presupposes the grant of authority with reference to the particular subject or occupation, and it merely authorizes the passage of ordinances and the making of rules and regulations to make such authority effective.

[15] The question of what powers may be exercised by a municipality is for the General Assembly and not for the courts. Yeadon v. Clark, 276 Ill. 424, 114 N. E. 1023. The question here is whether the Legislature has, in fact, delegated to the city the power which it seeks to exercise, in direct terms or as necessarily incidental to some power expressly granted. The propriety of examining and licensing electricians we are not called upon to determine. It may be admitted that electricity is a dangerous agent, that fires often originate from crossed wires and defective insulation, and that the regulation of electrical construction work and the licensing of electricians is not only salutary but necessary. Regulations of a similar character have been sustained in other jurisdictions. Collins v. District of Columbia, 30 App. D. C. 212; Caven v. Coleman (Tex. Civ. App.) 96 S. W. 774; Singer v. State, 72 Md. 464, 19 A. 1044, 8 L. R. A. 551; Electric Improvement Co. v. City and County of San Francisco (C. C.) 45 F. 593, 13 L. R. A. 131; City of Louisville v. Coulter, 177 Ky. 242, 197 S. W. 819, L. R. A. 1918A, 811; People v. Warden, 144 N. Y. 529, 39 N. E. 686, 27 L.

R. A. 718.

Dedication 19(5)—Implied agreement between all vendors and vendees of parts of tract that streets remain open for use as platted.

Original owner of tract, having complied with legal requirements in platting it, arrangement of streets was part of consideration of purchase of each block or part, not only as between original owner and purchasers from him, but as between all subsequent vendors and vendees; law implying mutual agreement by all that streets shall always remain open for use as platted.

2. Easements

30(1)-Easement appurtenant to lot in tract because of plat and sales with reference to it cannot be lost merely by nonuser.

Easement appurtenant to each lot in tract because of plat and sales with reference thereto is private property, which cannot be lost merely by nonuser without adverse possession. 3. Easements

32-Requisites of adverse possession of parts of streets stated.

To constitute adverse possession of parts of legally platted streets possession must have

been hostile in inception, adverse, actual, visi-
ble, open, notorious, exclusive, continuous, and
under claim of ownership.
4. Easements

vacate streets
not hostile.

32-Joinder in proceedings to evidence that possession was

That one in possession of part of street marked on plat joined with others in seeking to have streets vacated is evidence that he did not then claim to be owner, but was merely using street subject to public right to have it opened when convenience of traveling public required.

5. Estoppel 70(1)-Doctrine of estoppel in pais inapplicable in suit to enjoin obstruction of platted streets by adjoining owners.

Doctrine of estoppel in pais held not to apply as against town lot owners suing to enjoin obstruction of platted streets by adjoining owners, where the possession and use of the latter, though long continued, was suffered by plaintiffs only until changing conditions required opening of streets.

Farmer, Dunn, and Thompson, JJ., dissent

[16] The Factory Inspection Law of this state is limited to the inspection of wires and apparatus in factories and cannot be invoked to sustain the ordinance in questioning. here. The General Assembly has not granted to a city or village the power to license electricians or to impose fees for inspecting electrical construction work, hence the ordi- Suit by C. P. Marshall and others against nance 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

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

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complainants, and named defendant appeals. I owner of the block he 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.

Murray & Niehoff, for appellees.

This was later replaced with a hedge fence at the same location. After some years the hedge fence was cut out and about five years ago a barb-wire fence was erected. A fence was also built by Pfeiffer, together with the adjoining proprietor, in or near the center of the strip described as Clinton street, extending from South Third to South Fourth street, which fence existed for many years. The portions of Clinton and Fayette streets adjoining appellant's premises have been used part of the time for garden and part of the time for pasture, but at no time have any permanent structures or improvements been erected thereon.

HEARD, J. In the year 1861 Charles Floyd Jones and Madison Miller, who were then the owners of a certain tract of land located in section 13, township 1 north, range 1, west of the third principal meridian, in Clinton county, Ill., caused said tract to be surveyed and platted as a town site, the same being known as the town of Western Addition. The plat complied with all the statutory requirements. The plat was divided into eight blocks, and six strips of land were shown thereon as streets, three running east and west and designated as South Third, Fourth, and Fifth streets, respectively, and three running north and south, and designated at Fayette, Clinton, and Bond streets, respectively. Fayette and Bond streets were each shown as 60 feet in width and Clinton street as 64 feet in width. Block 3 is between Clinton and Fayette streets. Western Addition adjoins the city of Centralia on the west. It has never been incorporated or taken into the city. The original proprietors sold off the eight blocks designated on the plat, each in its entirety. By separate warranty deeds from Jones and Miller, dated May 11, 1866, and June 6, 1866, Martin Pfeiffer, the father of the appellant, acquired title to all of block 3. On September 10, 1868, he executed a deed of the block to Nicholas Saul, and the same day Saul and his wife executed a deed thereof to Eleanora Pfeiffer. On October 28, 1869, Eleanora conveyed the property to Martin Pfeiffer. Pfeiffer died about 1888. March 8, 1912, the master in chancery of the circuit court of Clinton county, as the result of a sale growing out of the partition of land own-ment of the suit all the transfers of real esed by Pfeiffer, conveyed the same to appellant. Pfeiffer and his successors in title occupied block 3 from 1866 to the time of the commencement of this suit.

When the town of Western Addition was laid out it was prairie land. The east and west streets were opened to the public without delay in order to give access to the city of Centralia, but at that time there was no particular necessity for travel to the north and south in the town. The town and the surrounding territory for a number of years were sparsely settled, and the public highway authorities did not immediately take over Bond, Clinton, and Fayette streets. Thereupon each adjacent owner of the blocks extended his dominion to the center of the north and south street adjoining his property, and for many years some of the land owners have had these streets fenced, so that they had the appearance of being the property of the adjacent lot or block owner. Shortly after Martin Pfeiffer became the

In 1884 the owners of all the blocks in the addition joined together and employed an assistant county surveyor to take the necessary steps to have Fayette, Clinton, and Bond streets vacated and a proper record thereof made, but he did nothing toward that end. In May, 1899, the owners of block 8 in the town began selling off lots 71 feet wide and 180 feet long off the south end of that block. In October, 1914, Ben Michael, who had become the owner of block 6 in the town, subdivided the south half of the block, and a plat thereof was filed in the office of the recorder of deeds of Clinton county. Thereafter portions of the block were sold and are now owned by different parties. In September, 1921, the Merchants' State Bank, which had acquired title to blocks 4 and 5 in the town, subdivided the two blocks into 32 lots, calling the same Pullen's subdivision of blocks 4 and 5 of the town of Western Addition, and several lots therein were sold to various parties. From the time the town was platted to the time of the commence

tate therein which were made were made by lots or blocks with reference to the plat, and no conveyance was ever made covering any portion of Bond, Clinton, or Fayette street. No taxes were ever paid on any portion of said streets after the same were platted.

Prior to the bringing of this suit additions to the city of Centralia were laid out and built up to the north and south of the town of Western Addition. The subdivisions made in the town resulted in the erection of a number of residences therein, and a necessity arose for finding ways to the north and south for the residents of the town and for the general public. A demand was made by several of the property owners in the town upon the commissioner of highways of the town of Brookside, in which the addition in question is situated, to cause the three streets in question to be opened. The commissioner then served notice on the parties who were in possession of said streets to remove the fences which they had erected on such streets, but

(145 N.E.)

the fences were not removed. Appellant and other defendants refusing to allow the streets to be opened, complainants, who are all owners of real estate in the town, filed a bill in chancery against appellant and the other persons who were encroaching upon the streets to enjoin them from obstructing the same and from preventing the same from being opened up for the use of complainants and the general public. Appellant filed an answer to the bill, in which he claimed that the strips of land in question had never been used or opened to the public as streets, and claimed title thereto by prescription. A trial was had before the court, which resulted in a decree for complainants, finding that appellant had no right or title in and to the portions of land in question, and decreed that Bond, Clinton, and Fayette streets as they appear upon the plat of the town of Western Addition be opened to public travel, and that all persons then maintaining any obstructions upon said streets remove the same and surrender up the streets to the commissioner of highways of the town on or before the 1st day of July, 1924. From this decree appellant alone has perfected an appeal to this court.

The sole question involved in this case is whether or not the appellant, August M. Pfeiffer, who is the owner of block 3 of Western Addition, in the township of Brookside, Clinton county, Ill., can be required to open for use as a street a certain strip of ground 37 feet in width, extending north and south along the west side of the block, and another strip 30 feet in width along the east side of the block.

The bill of complaint as filed proceeds upon two theories: First, that the public has acquired rights in said strips by virtue of their dedication as streets by the original proprietors; and, secondly, that the complainants, as owners of lots and blocks in Western Addition, purchased their property on the faith of the original plat of Western Addition and for said reason have the right to have all of the streets shown on the plat forever kept open for their use and for the use of the public.

for use as platted. Clark v. McCormick, 174 Ill. 164, 51 N. E. 215; Corning & Co. v. Woolner, 206 Ill. 190, 69 N. E. 53; Wattles v. Village of McHenry, 305 Ill. 189, 137 N. E. 114.

[2-5] The easement which was appurtenant to each lot by reason of the existence of the plat and the sales with reference to it was private property. It could not be lost merely by nonuser where there was no adverse possession (Swedish Lutheran Church v. Jackson, 229 Ill. 506, 82 N. E. 348), and to constitute adverse possession such possession must have been hostile in its inception, adverse, actual, visible, open, notorious, exclusive, continuous, and under claim of ownership. There is no evidence in the record that the possession of appellant's father of the portion of the street in question was hostile in its inception or that his possession was under claim of ownership, but the fact that in 1884 he joined with others in seeking to have the streets in question vacated is evidence that he did not then claim to be the owner of such streets but was merely using the same subject to the right of the public to have the streets opened when the convenience of the traveling public required the same to be opened. There is no evidence in the record that either the possession of appellant or of his father was under claim of ownership. The doctrine of estoppel in pais does not apply to the facts of the present case.

The decree of the circuit court is in accordance with the facts and the law applicable thereto, and is therefore affirmed. Decree affirmed.

FARMER, DUNN, and THOMPSON, JJ., dissenting.

(314 Ill. 296)

PEOPLE v. ARTHUR. (No. 15954.) Oct. 28, 1924. (Supreme Court of Illinois. Rehearing Denied Dec. 4, 1924.)

I. Criminal law 126(1)-Denial of change of venue for local prejudice held error.

It was error to deny a motion for change of venue for local prejudice, where public feeling was such that sheriff deemed it wise to remove accused from the county for a time. 2. Criminal law 814(11)-Error to charge on alibi, where there was no such defense. It was error to instruct jury on subject of alibi, when no such defense was made. 3. Criminal law 516-"Confession” limited to acknowledgment of guilt of crime, or facts necessarily implying it.

[1] The original owner of the tract of land in question having complied with the requirements of law in platting the same, the arrangement of streets formed a part of the consideration of the purchase of each block or part thereof, not only as between the orignal proprietor of the plat and those who purchased from him, but also as between all subsequent vendors and vendees. Jones and Miller, the original proprietors, sold to their vendees the rights and privileges of the streets, and each subsequent vendor passed 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.]

"Confession" is limited to acknowledgment of guilt of crime or of facts which directly and necessarily imply it, and there is distinction between confessions and admissions of fact tending to establish guilt.

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

4. Criminal law 516-Statements of defend-1 24, 1921, all the family except defendant ant held not confessions.

Statements of defendant, "I shot him," "I killed him," "They say I killed him," were not confessions, where name of no person was mentioned and witnesses did not know whether what was said by defendant referred to person

or not.

[blocks in formation]

went to visit friends some distance away, leaving defendant at the home alone, and did not return until 2 o'clock in the tin visited defendant at the Arthur home afternoon of Saturday, December 31. MarFriday afternoon, December 30. Gibson, a witness for the people, testified he was at the Arthur home at the time, and that the relations of defendant and Martin were the neighborhood of 7 o'clock, defendant friendly. The same evening, somewhere in drove to Monticello in his Ford runabout, got Martin, and the two drove to the Arthur home. Before leaving town they, or one of them, bought milk and oysters, which they took to the Arthur home, cooked, and ate for supper.

Defendant claims that after

supper, somewhere around 9 o'clock, he

took Martin in his Ford runabout to Monticello; that Martin said he had agreed to 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.

George Opal Arthur was convicted of murder, and brings error, Reversed and re

manded.

Grover C. Hoff, A. F. Miller, and W. F. Gray, all of Clinton (C. D. Bradley, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., and Burl A. Edie, State's Atty., James L. Hicks, and Charles F. Mansfield, all of Monticello, for the People.

FARMER, J. Plaintiff in error, George Opal Arthur (hereafter called defendant), has sued out this writ of error to review a judgment of the circuit court of Piatt county on a conviction for murder and inflicting the death penalty.

Defendant is a single man about 30 years old and lived with his parents on a rented farm about 24 miles south of Monticello, the county seat. He had served overseas with the American Expeditionary Forces, and was discharged in August, 1919, after the close of the World War, and returned to his parents' home. He was employed by J. P. Kratz, owner of a considerable amount of farm land, as choreman at the Kratz homestead, which was about midway between his father's home and Monticello. Charles Martin, the deceased, was about 20 years old, single, and the son of David B. Martin, a stock buyer, who resided in Monticello. Martin and defendant were intimate friends and associates. At the time of his death, and for considerable time prior thereto, Martin was employed as an automobile mechanic at the garage of his brother-in-law, George Rudisill. Defendant's father's family consisted of the father, J. W. Arthur, his wife, two daughters, and defendant. December

Ford car parked at the curb, and Martin said, "There they are now," jumped out of the car, and defendant drove home.

There is no evidence of Martin having after he went home with defendant early been seen alive by any one but defendant in the evening. His body was found Thursat the Croninger bridge, about 13 miles day, January 5, 1922, in the Sangamon river, southwest of Monticello. down with a piece of stone in a gunnysack, It was weighted fastened to the body with wire. The arms and legs were bound up with wire. There were bullet holes in the head and the skull was badly crushed, showing conclusively that Martin had been murdered and his body thrown into the river bound that it would not rise again. Sunday so weighted and afternoon, January 1, Martin's sister, Mrs. Rudisill, called the Arthur home by telephone and inquired if defendant knew anything of the whereabouts of Martin, who had not been seen since Friday evening. Defendant got in his car, drove to the Martin home, and talked with Mrs. Martin and her daughter, Mrs. Rudisill. He told them of Martin being at his home Friday evening and of their oyster supper there, and said he then drove Martin to town to meet some parties he said he had an appointment with, and told Mrs. Martin and her daughter about where Martin got out of the car, of two men on the sidewalk, and what Martin said as he saw them and of his getting out of the car. Apparently Mrs. Martin and her daughter suspected defendant of either knowledge of or responsibility for the disappearance of Martin. Mrs. Martin asked defendant if he would mislead one of her children, and said she did not trust any one and would not trust defendant. He denied knowing anything about what became

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

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