(313 II 588)

(145 N.E.)

PEOPLE v. LEVIN. (No. 15714.) (Supreme Court of Illinois. Oct. 28, 1924.) Courts 219 (8)-Supreme Court cannot take jurisdiction to determine validity of statute where question not raised below.

Supreme Court cannot take jurisdiction of cause, as involving validity of statute, such as Prohibition Act, § 21, prohibiting maintenance of liquor nuisance, where record does not show that such question was presented to trial court.

Error to Municipal Court of Chicago; Harry Olson, Judge.

Hyman Levin was convicted of maintaining a common nuisance by keeping a place for sale of intoxicating liquor, and he brings error. Writ dismissed.

David T. Alexander, of Chicago (Morris K. Levinson, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and George C. Dixon, of Dixon (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

DUNCAN, C. J. Plaintiff in error, Hyman Levin, was convicted in the municipal court of Chicago of maintaining a common nuisance by keeping a place where intoxicating liquor was kept and sold, in violation of section 21 of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1923, c. 43). He was tried before the court and a jury, found guilty, and sentenced to confinement at labor in the house of correction in the city of Chicago for the term of one year, and to pay a fine of $500 and costs. This writ of error is prosecuted for a review of the

record.

This cause comes to this court on the common-law record, on which the sole error assigned and argued is that section 21 of the Illinois Prohibition Act is unconstitutional. The record discloses that no motion was made to quash the information. There is a recital in the record that a motion for a new trial was made and overruled, but there is no bill of exceptions preserving the motion for a new trial as part of the record, and the record does not even recite the grounds, if any special grounds were alleged, for such motion. There is no showing in the record whatever that the question of the constitutionality of said section of the Prohibition Act was presented to the trial court for decision. This court cannot take jurisdiction of this cause, upon the ground that the validity of a statute is involved, because the record does not disclose that such question was presented to the trial court for decision. People v. Rawson, 278 Ill. 654, 116 N. E. 123; Wennersten v.

Appeal from Effingham County Court; Barney Overbeck, Judge.

Proceeding by the People, on the relation of S. L. James, county collector, for judgment for delinquent taxes, against the Chicago & Eastern Illinois Company and others. From an adverse judgment, plaintiff appeals. Reversed and remanded with directions.

Edward J. Brundage, Atty. Gen., and Paul Taylor, State's Atty., of Effingham (Walter C. Klitzing, of Altamont, of counsel), for appellant.

Parker & Bauer, of Effingham (H. T. Dick and Robert N. Holt, both of Chicago, and L. H. Strasser, of St. Louis, Mo., of counsel), for appellees.

DUNCAN, C. J. The board of education of Altamont Community High School District No. 82, in Effingham county, as shown by its record, met on August 1, 1922, being the first Tuesday of August, for the purpose of making the annual tax levy for the following year, and all members of the board were present. The record of that meeting further shows that on motion of J. E. Rhodes, a member of the board, it was resolved that the school district levy a tax for educational purposes in the sum of $8,000 and that no tax be levied for building purposes, and that the president and clerk of the board be directed to file a certificate of

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August 4, in accordance with the facts testified to by the witnesses. The evidence showed very clearly that the two school boards met on August 1 and that the board of school district No. 50 did adjourn to August 4 for further business. It appears tnat Moll and Rhodes were members of both boards. The record or minutes of the high school board as the same appeared on the trial bore date of August 1, 1922, and had never been changed or corrected. One of the reasons for the witnesses remembering that the board of school district No. 50 met on August 1 for the purpose aforesaid is the fact that both school boards met on the same day, and the further fact that the meeting of the high school board bore date of August 1, 1922, which was the correct date of the meeting for that district. The facts that furnished the basis for the amendment of the record of school district No. 50 were not disputed by the railroad companies. It had the right, under the law, of amending its record to correspond with the facts. Turley v. County of Logan, 17 Ill. 151; County of DuPage v. Highway Comrs., 142 Ill. 607, 32 N. E. 269; Hurd's Stat. 1921, sec. 191, p. 2687.

levy in that amount. The certificate of levy, of taxes aforesaid and then adjourned to for the district was dated August 11, 1922, and it was filed by the county clerk August 14, 1922. The board of directors of school district No. 50, in Effingham county, as shown by its record, met on August 1, 1922, all members being present. That meeting was the regular meeting, and on motion of Rhodes, seconded by Siebert, members of the board, it was unanimously voted that the board levy the sum of $15,000 for educational, and $6,000 for building, purposes for the following school year. The certificate of levy was dated August 4, 1922, and was filed with the county clerk August 14, 1922. On application to the county court of said county for judgment for delinquent taxes for said school districts, the Chicago & Eastern Illinois Railroad Company, the Chicago, Paducah & Memphis Railroad Company, and the Wabash Railway Company appeared and filed objections to the taxes levied by both districts. The objections were in substance the same for all three of the objectors, that the levies for the two school districts were not made and certified by the town treasurer on or before the first Tuesday in August, 1922, as required by the statute. It was stipulated that each objection was heard upon the same evidence and that the same points were presented and argued to the court; that the objections were consolidated and tried by the court as one case, and that an order and judgment were entered by the court sustaining the objections and abating the taxes; that one record and a bill of exceptions shall be filed for the three cases, and that in case of appeal the causes shall be treated as consolidated and a judgment may be entered in the Supreme Court applying to all objections; and that on trial in the county court the county collector made a prima facie case showing a right of recovery for all the taxes.

[1] The evidence on behalf of the community high school district, and of the other school district, shows that both boards met on the same day, August 1, 1922, for the purpose of levying taxes for the following school year; that both districts made the levies for taxes as already stated, and that both of the certificates of levy were made and filed on the respective dates above stated. The evidence shows, as to school district No. 50, that the secretary of the board was not present on the day of this meeting, and that at the close of the meeting on August 1, 1922, there was an adjournment of the board for further business to August 4, 1922.

In writing up the minutes or record of the meeting of August 1, the regular secretary, who was not present at that meeting, showed the date of the meeting for levying the taxes as of August 4. On the hearing of the objections the record of school district No. 50 was amended so as to show that the board met on August 1, and made the levy

[2] Section 190 of the School Law provides that the board of directors or board of education of each district shall ascertain as nearly as practicable, annually, how much money must be raised by special tax for educational and for building purposes for the ensuing year, and that such amount shall be certified and returned to the township treasurer on or before the first Tuesday in August, annually, and that the certificate shall be signed by the president and clerk or secretary. It further provides that the township treasurer shall return the certificate to the county clerk on or before the second Monday of August, and that a failure by the school board to file its certificate, or of the treasurer to return it to the county clerk in the time required, shall not vitiate the assessment. The certificate of levy required by section 190, as amended in 1909 (Laws 1909, p. 394), is the evidence of the board's action and the authority of the county clerk to extend the tax, but is not itself the levy, as it is the action of the board in ascertaining how much money must be raised by special tax for educational or building purposes which constitutes the levy. People v. Cox, 301 Ill. 130, 133 N. E. 705. As section 190 expressly provides that a failure by the school board to file a certificate of the special tax levy or of the treasurer to return it to the county clerk in. the required time shall not vitiate the assessment, and as the taxes here complained of were shown to be levied by the school boards on the first Tuesday in August, the county court was not justified in denying judgment for the taxes. The record of

(145 N.E.)

school district No. 50 was properly amended | tion signed by more than 50 voters residing under the evidence.

The judgment of the county court is reversed and the cause is remanded, with directions to enter judgment for both school districts for the taxes in question. Reversed and remanded, with directions.

(313 Ill. 204)

in the territory of the school district (describing the same) was received by the county superintendent of the county, praying that an election be called for the purpose of voting for or against organizing the territory into a community high school district; that the superintendent ordered and gave notice of the election, which was held; that the majority of the votes cast were in favor of

PEOPLE ex rel. SCHOLL et al. v. FREY et al. the district; that the superintendent num

(No. 15122.)

(Supreme Court of Illinois. Oct. 28, 1924.) 1. Schools and school districts 42(2)-Community high school district held validated by statutes, if compact and contiguous. Laws 1921, pp. 797–799, validated community high school district No. 215, in Ogle county, subject only to limitation that territory must be compact and contiguous in constitutional sense. 2. Schools and school districts 42(2)-Finding that community high school district was compact and contiguous held warranted.

Evidence held to warrant finding that community high school district was compact and contiguous in constitutional sense.

bered the district 215 and called and gave notice of an election of a board of education, which was held and resulted in the election

of appellees as members of such board; that the election to organize was not held under the Australian ballot system; that women voted at the election, but had no effect whatever in carrying it. It alleged and relied on the passing and approval of the two curative acts of May 10, 1921 (Laws 1921, pp. 797799); that within 10 days after their election the members of the board organized and determined by lot the time each was to serve; that appellees are the duly qualified members of the board of education of the district; and that by that warrant they exercise the

Appeal from Circuit Court, Ogle County; liberties and privileges of such board, as Franklin J. Stransky, Judge.

Proceeding by the People, on the relation of J. Fred Scholl and others, against David J. Frey and others, as members of Board of Education of Community High School District No. 215, in Ogle county. Judgment for -defendants, and relators appeal. Affirmed.

James L. McDowell, State's Atty., of Oregon, Ill., and H. A. Brooks and Elwin M. Bunnell, both of Dixon, for appellants.

Robert L. Bracken and Robert M. Brand, both of Polo, for appellees.

they have a right to do.

It was stipulated by the parties that the issuable facts of the plea are true and its allegations are evidence of such facts; that this suit be tried by the court without a jury; that each side may examine six witnesses in open court and produce as many affidavits as they desire, which shall be competent evidence to be considered by the court; that the case be tried as if all necessary and proper pleadings were filed; and that the parties may introduce any competent evidence under any competent and proper plea.

DUNCAN, C. J. The circuit court of Ogle [1] Under the validating acts and the decounty found appellees not guilty of usurp cisions of this court, the district in question ing the offices of members of the board of is a legal and valid district, subject only to education of community high school district the limitation that the territory of the disNo. 215, in said county, and rendered judg-trict must be compact and contiguous in the ment for costs against the relators. constitutional sense, as defined by the deThe petition for leave to file the informa- cisions of this court. People v. Young, 301 tion was presented to the judge in vacation | Ill. 67, 133 N. E. 693; People v. Opie, 301 Ill. by the state's attorney, on the relation of J. Fred Scholl and others, voters and taxpayers in the territory of the alleged district, and leave to file the information was granted. The petition and the information both charge that the proceedings to organize the territory into a community high school district were invalid, and that the territory of the alleged district is not compact and contiguous, within the meaning of the state Constitution as construed by the decisions of this court.

Appellees waived service of process, and entered their appearance at the June term of the court, 1922, and filed a plea of justification. It alleged, in substance, that a peti

11, 133 N. E. 689; People v. Benton, 301 Ill. 32, 133 N. E. 700; People v. Chynoweth, 301 Ill. 65, 133 N. E. 699; People v. Edvander, 304 Ill. 400, 136 N. E. 693. Appellants offer no good reason for the overruling of these decisions, and we hold that the court properly decided for appellees on their plea.

[2] This community high school district is located in a fairly level country and contains 86 miles of macadam and stone roads and 35 of patroled roads, the county having adopted the patrol system in September, 1921. The evidence in the record shows that the dirt roads of the district are ordinarily in fairly good condition for travel, and with the

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facts. The testimony is generally to the effect that the roads are impassable in their part of the district, and that it is not possible for the pupils to attend the school during a great part of the winter and spring by reason of such impassable condition of the roads. The statements of these witnesses in their affidavits and in their testimony were overcome by the many witnesses for appellees, who were from all parts of the district and who locate their residences, so that it can be known from what part of the district they come. A great number of appellees' witnesses were pupils from all parts of the district, who were actually attending high school at the times the witnesses for appellants say that the roads were impassable, and that it was not possible for high school pupils to attend school at, Polo without boarding at or near such center. Other witnesses for appellees were pupils living out of the district, and residents of the district who were in the habit of going to and from Polo from one to three or more times a week. The testimony of appellees shows conclusively that it was not only possible for high school pupils to attend this high school from all parts of the district with reasonable convenience and comfort to themselves, but that the high school pupils who were disposed to do so did actually attend, and that they attended from out of the district with reasonable convenience and comfort, and that they made good average attendance, were scarcely ever tardy, and lost only a very few days during any term.

exception of one extraordinary winter the most generally state conclusions rather than territory of the district and the community center have been easily accessible to all the pupils of the district ever since the district has been organized and for several years prior thereto; that even during the bad winter there were quite a number of high school pupils from all parts of the district and from out of the district who attended the high school almost every day, and were tardy very few times while attending school. The district is not square, there being quite an amount of the territory wanting in all four corners thereof to make it square. It therefore has two corners on the southeast, two on the southwest, two on the northwest, and two on the northeast part of the district. Polo, the community center, is situated in the center of the territory and contains a population of about 2,000. The greatest linear distance from the center of the district to the most remote parts thereof does not exceed 64 miles, it being approximately 64 miles from the center of the district to one of the northwest corners and to one of the southwest corners thereof, the most remote points from such center. The school has an attendance of 220 high school pupils, many of whom are not residents of the district, and the attendance has gradually increased for the last few years. It is very much in need of a high school building, but none has as yet been built. The assessed value of the territory of the district was over $4,000,000 for 1921. For that year the board levied for educational purposes $20,000 and $5,000 for building purposes. The evidence shows that it has all the requisites for a successful and efficient high school district, and that the territory of the district and the community center are reasonably accessible to all the pupils of the district, and that the high school is becoming more and more accessible to the pupils by reason of the fact that the condition of the roads continues to improve. The foregoing facts were established by the testimony of the 6 witnesses examined for appellees and by about 85 affidavits of parties who were thoroughly familiar with the conditions in the district and the facts to which they testified. In addition to the 6 witnesses testifying for appellants, there were about 48 affidavits filed by other parties living in the district. About 20 of those making affidavits for appellants lived in Lincoln township, in the north part of the district, and appeared to be very much interested in the small village of Haldane, in that township, which has a population of about 100. Only a few of the remaining parties who made affidavits for appellants make it known by their affidavits what particular part of the district they live in, but simply state that they live so many miles from Polo. The affidavits and witnesses for appellants

The circuit court was warranted in finding that the district was compact and contiguous in the constitutional sense as defined by this court, and the judgment of that court must be and is affirmed. Judgment affirmed.

(313 III. 351) (No. 15544.) Oct. 28, 1924.)

PEOPLE v. QUINN. (Supreme Court of Illinois. 1. Rape 51(1)-Evidence held sufficient to sustain conviction.

tion.

Evidence held sufficient to sustain convic

2. Criminal law 1112-Facts shown in record cannot be overcome by affidavits.

Facts shown in record, such as that the prosecuting witness was duly sworn, cannot be overcome by affidavits of witnesses. 3. Criminal law 957(1)—Jurors cannot impeach their own verdict.

Statements of jurors, either sworn or unsworn as to their misconduct, or their incompetency, cannot be considered for purpose of impeaching their verdict.

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(145 N.E.)

4. Criminal law 1172(2)-Conviction will not be reversed for giving of number of instructions on reasonable doubt.

Conviction will not be reversed for giving of several correct instructions on reasonable doubt, where not numerous.

her as his reason therefor that her father was at his house. When they arrived at his home, he informed her for the first time that her father was not at his home, and that what he told her was all a sham, to get her down there. She tried to yell, but he put his hands over her mouth. She released her

Error to Circuit Court, Jefferson County; self from his grasp and started to move Charles H. Miller, Judge.

away from him, and he took a gun out of

Earl Quinn was convicted of rape, and his pocket and told her to be quiet and to brings error. Affirmed.

William H. Green and Albert Watson, both of Mt. Vernon, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Frank G. Thompson, State's Atty., of Mt. Vernon, and Virgil L. Blanding, of Springfield (Neil H. Thompson, of Mt. Vernon, of counsel), for the People.

remain there. She sat in the buggy while he unhitched his horses, and after unhitching them he put them in the barn, without taking the harness off them and without feeding or watering them. They then went into the house and into the living room. She sat down in one of the chairs, and he tried to take her coat and hat off, and finally she moved away from him and sat on the bed. He then pushed her over and had sex

DUNCAN, C. J. Plaintiff in error, Earl Quinn (herein called defendant), was con-ual intercourse with her against her convicted in the circuit court of Jefferson county before the court and a jury for the crime of rape and was sentenced to the penitentiary for the term of 2 years. He has sued out this writ of error to review the judgment. The prosecuting witness, Maggie Kniffen, of the age of 20 years and weighing about 100 pounds, is a sister of the defendant's wife, and at and previous to the commission of the crime charged was employed in a knitting factory at Mt. Vernon, Ill. She was boarding and lodging with Mrs. George Harvel, rooming with another girl employed at the same factory, Grace Payne. The defendant lived on a farm in the southeast part of Jefferson county, weighed about 145 pounds, and was about 25 years of age. His fatherin-law, Frank Kniffen, lived about a mile north of the defendant, and the defendant's wife was staying at her father's at the time herein mentioned, and was in a family way and in a delicate condition of health. defendant was the father of another child about a year old.

The

sent, and she only gave her consent because she was afraid to resist him. They remained there until about 5 o'clock the next morning, when they started for Mt. Vernon in the same buggy they had used the night before, but by a longer and different road, which the defendant traveled, as he explained to her, for the purpose of delivering her at the Wabash depot at Mt. Vernon, so she could go from there to her boarding place, and that the people might believe that she had come to Mt. Vernon from Belle Rive on the 10 o'clock train. The defendant left her at the Wabash depot, and told her to remain there until the train arrived, and to say when she got to her boarding place that she had returned from her home on the train. After he left her she went to her boarding house. She did not tell Mrs. Harvel about what had happened to her, but did that day tell her roommate, Miss Payne, and another young woman, Ruby Melton. Her folks at home were notified about it, and her father came to Mt. Vernon that evening, and the defendant was at once arrested upon this charge. She further testified that it was a very cold night when these things happened, and that she did not take off her clothes or go to bed with the defendant.

The prosecutrix testified, in substance, to the following: Late in the afternoon of January 16, 1923, she was called from her work in the knitting factory by the defendant, who told her that her father was very sick, and that she was wanted at home, and The defendant admitted that he did all the that he would take her there in his buggy. things in Mt. Vernon to get the prosecutrix She agreed to go with him, and they drove to go with him that she said he did, and to her boarding house, where the defendant further testified, in substance, as follows: told Mrs. Harvel that the witness' father He bought a bottle of medicine, and showed was very ill, and that they needed her at it to her and others for the purpose of makhome. The defendant and the prosecuting ing the other people believe that her father witness left her boarding house about 5 was really sick and that he bought the medio'clock p. m. and drove south towards her cine for him. He testified that the trip to home, stopping on the way at a store, where his home had been planned by himself and the defendant purchased some bread, bologna, | the prosecuting witness, and that previously and candy. When they came to the point in they had agreed between themselves that he the road where it divided, one road leading should do substantially as he had done, and toward her father's home and the other to- tell the prosecuting witness and the others ward defendant's farm, the defendant took the things he told them in Mt. Vernon, so as the one leading toward his farm, giving to to give her an excuse to go with him to his

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