(146 N.E.) (315 III, 572)

bringing her to Illinois from Ohio, where PEOPLE ex rel. CLINE, State's Atty., V. she was arrested, and while she was confined KERKER. (No. 14855.)

in the jail of Champaign county, and that (Supreme Court of Illinois. Feb. 17, 1925.) she was pregnant by him; that respondent

knew the story was untrue and without any 1, Attorney and client Om53(2)—Relator in foundation in fact, and threatened to make disbarment proceedings held required to es- it public for the purpose of inducing the oftablish truth of serious charges beyond rea. ficers to dismiss the prosecution of the case.. sonable doubt.

The fifth count charges respondent with In disbarment proceedings charges that at- falsely accusing a woman mentioned with torney had been guilty of crimes should be improper relations with a married man for required to be proved beyond reasonable doubt; the purpose of extorting $500 from the woand proof of other unprofessional conduct

man for the wife of the married man, and should be clear and convincing.

that respondent knew the charges were false 2. Attorney and client 54-Commissioner's and untrue. report in disbarment proceedings held suffi- We have endeavored to condense within cient finding that respondent was not guilty. the smallest possible limits the substance

Commissioner's report, in disbarment pro- of the charges in the information. They ceedings, that proof failed to sustain the charg- were all denied by the answer. We shall es, held sufficient as against respondent's contention that he should have been specifically endeavor to dispose of this case in the brieffound not guilty; the report in effect having est possible manner, without setting out the so beld.

testimony or its substance in detail, as we

believe the public interest and good will be Disbarment proceedings on the relation of best served by that method of treating this Roy R. Cline, State's Attorney, against Har- case. ry E. Kerker. Rule discharged.

[1] The third and fifth counts, which are Roy R. Cline, State's Atty., of Urbana, for the counts relied on by relator, both involve

scandals and cannot be treated in detail relator.

without the use of the names of several Francis T. Carson, of Urbana, and Craig people who, besides the principals, were & Craig, of Mattoon, for respondent.

brought into the case by the testimony, and

we do not believe we should add to the perFARMER, J. This is an information to manency of the record of the scandalous tesdisbar, which was filed by leave of court timony by placing it in the volumes of the at the June term, 1922. A rule was entered decisions of this court. It is sufficient to requiring respondent to answer by the first say that the testimony abundantly warrants day of the October term of that year. The the report of the commissioner that the answer was filed and the cause referred to charges against respondent were not proved. the master in chancery of Piatt county, as The charges are of a most serious character commissioner, to take the testimony and -some of them crimes--and the proof would report his findings and conclusions. The be required to establish their truth beyond evidence was taken from time to time, and a reasonable doubt. In any case, whether the commissioner's report was filed to the the misconduct charged amounts to a crime October term, 1924, of this court. The com- or merely to unprofessional conduct, the missioner reported that the evidence did charge must be proved by clear and convincnot sustain the charges made in the informa- ing testimony. People v. Thornton, 228 mil. tion or either of them, and he recommended 42, 81 N. E. 793; People v. Sullivan, 218 Ill. that the rule against respondent be dis- | 419, 75 N. E. 1005; People v. Ader, 263 Ill. charged and that he should not be disbarred. ( 319, 104 N. E. 1060; People v. Baker, 311 Relator filed exceptions to the commission. 111. 66, 142 N. E. 554, 31 A. L. R. 737. The er's findings and conclusions as to the third proof in this case is not sufficient to create and fifth counts, and also some general ex- a well-founded suspicion of the truth of the ceptions to the commissioner's report in the charges. admission and rejection of testimony.


[2] Respondent excepted to the commisadmits the proof did not sustain the first, sioner's report for merely finding that the second, and fourth counts. Those counts proof failed to sustain the charges in the charged respondent with subornation of per- information, and argues that he should have jury in the trial of criminal cases. The third found specifically that the respondent was count charges that the respondent and an- not guilty. That is the effect of the commisother lawyer of Champaign county, who sioner's report when he found the charges were employed to defend Margaret O'Day, were not sustained by the proof, and we a woman under indictment for larceny, see no objection to the commissioner's reWent to the deputy sheriff and his father, port in that respect. the sheriff, and represented to them that Mar- As the interests of all parties who were in garet O'Day had told them of illicit rela- any way connected with or mentioned in tions the deputy sheriff had with her while this suit will, in our judgment, be best serv

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ed by this brief disposition of the case, we | tember meeting, 1923, a resolution was have concluded it is not required that we adopted by the board that there be levied go into the evidence in detail. The only upon all taxable property of the county the thing we are called upon to determine in sum of $74,660, consisting of various items. this case is whether the proof sustained any On cross-examination the county clerk tesof the specific charges made against respond- tified, over the objections of appellant, that ent, and we fully agree with the commis- all the members of the board were present sioner that it did not.

at the meeting; that when the resolution The rule is therefore discharged.

was offered the chairman said, "All in favor Rule discharged.

of the motion say yea"; that they all voted
yea, and the chairman declared the motion

carried. Waiving all question as to the ad-, (315 Ill. 575)

missibility of the county clerk's testimony, PEOPLE ex rel. SMITH, County Collector, v. the evidence shows simply that the resoluCINCINNATI, I. & W. R. CO. tion was adopted by a viva voce vote, which (No. 16314.)

is not in compliance with the statute, as we

held in the case above cited, and also in (Supreme Court of Illinois. Feb. 17, 1925.) People v. Chicago & Eastern Illinois RailCounties Sw 191-Levy of county tax void as way Co., 314 Ill. 352, 145 N. E. 716, where not in conformance with statute.

the question is fully discussed. Levy of county tax against property, adopt

The judgment of the county court is reed by resolution of county board by viva voce

versed. vote, held illegal and void as not within Coun- Judgment reversed. ty Act, $ 54, as amended in 1921, requiring aye and nay vote.

(315 III. 536) Appeal from Piatt County Court; M. R. PEOPLE ex rel. ASTLE, County Collector, v. Davidson, Judge.

CHICAGO & E. I, RY. CO. Proceeding on the relation of William

(No. 16306.) Piatt Smith, County Collector, against the (Supreme Court of Illinois. Feb. 17, 1925.) Cincinnati, Indianapolis & Western Railroad Company, for judgment against real estate 1, Highways em 127(2) Additional levy for on which taxes were delinquent. Judgment

roads and bridges valid, though not consented for relator, and defendant appeals.


to until regular meeting of board of town

auditors. versed.

Additional road and bridge levy held not F. J. Goebel, of Indianapolis, Ind., and invalid because written consent of town audi. F. M. Shonkwiler, of Monticello, for appel- tors was given at regular town meeting on lant.

first Tuesday in September; the amendment to Edie & Edie, of Monticello, for appellee. Township Organization Law (Laws 1923, p.

628), providing for special meetings of town

auditors, not affecting established construction DUNCAN, C. J. The county collector of of Roads and Bridges Act, $ 56 (Smith-Hurd Piatt county applied to the county court of Rev. St. 1923, c. 121, $ 62). that county at its June term, 1924, for a judgment against real estate upon which

2. Highways cm 127 (2)-Additional levy for

road and bridge purposes held invalid for irtaxes were delinquent. The Cinncinati, In

regularity in meeting of town auditors. diana polis & Western Railroad Company filed objections to certain county taxes, Bridges Act, § 56 (Smith-Hurd Rev. St. 1923,

Levy of additional tax under Roads and amounting to $830.52. Its objections were

c. 121, § 62), held invalid, where record of overruled, and judgment

rendered town clerk showing consent of town auditors against its property for said amount, and it at special meeting did not show who called has prosecuted this appeal.

meeting or that notice was given. The sixth objection of appellant is that 3. Drains Cm76-Description of railroad propthe report of the finance committee recom- erty insufficient to sustain levy by drainage mending the appropriations and levy was district. not adopted by the county board at its Sep

Attempted levy by drainage district of tember meeting by an aye and nay vote, as special assessment and annual repair tax required by section 54 of the County Act as against property of railroad would not support amended June 24, 1921 (Smith-Hurd Rev. St. judgment against property, where assessment 1923, c. 34, $ 55), and that the county tax roll did not describe property so that it could levied and assessed against the property of be located by surveyor. appellant is illegal and void. The evidence in this record is substantially the same as

Appeal from Kankakee County Court; that in People v. Wabash Railway Co., 314 Henry F. Ruel, Judge. Ill. 386, 145 N. E. 642. The record of the Proceeding by the People, on the relation board of supervisors shows that at its Sep-1 of Charles B. Astle, County Collector, against

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(146 N.E.) the Chicago & Eastern Illinois Railway Com- , tion heretofore given section 56 of the Roads pany to enforce special assessments. From and Bridges Act (Smith-Hurd Rev. St. 1923, a judgment sustaining in part and in part c. 121, § 62) that consent to the levy of an overruling' objections, both parties appeal. additional town road and bridge tax may be Judgment affirmed.

obtained at the regular meeting of the board Anker C. Jensen, of Kankakee, for the Peo- of town auditors on the first Tuesday in Sepple.

tember, provided such consent is given prior W. R. Hunter and Eva L. Minor, both of to the levy of the tax. These cases are de

cisive of the question concerning said taxes. Kankakee, for Chicago & E. I. Ry. Co.

[2] The court also properly sustained obo

jections to the road and bridge tax of the DUNCAN, C. J. The county collector of Kan- town of Yellowhead. The supervisor, town kakee county applied to the county court of clerk, and one justice of the peace of that. that county at its June term, 1924, for judg: town, purporting to act as the board of town ment against real estate for which taxes auditors, met on August 29, 1923, and gave were delinquent. The Chicago & Eastern Il- their consent in writing to the highway comlinois Ralway Company filed objections to missioner for the levy of 16 cents additional the road and bridge tax of the towns of tax for road and bridge purposes. The record Yellowhead, Momence, Ganeer, and St. Anne, of the town clerk does not show that said and of Spring Creek drainage district spe- meeting was called by any person or that any cial assessment, $313.50, and Spring Creek notice of the meeting was given to any perdrainage district special assessment for an son, as required by the act authorizing spenual repair tax, $4.27. Its objections were cial meetings. The board therefore acted sustained as to the road and bridge tax of without jurisdiction, and its act was void the town of Yellowhead and as to the taxes and conferred no authority for the levy of or special assessments as to Spring Creek such additional tax. People v. Chicago & drainage district and were overruled as to Eastern Illinois Railway Co., 314 Ill. 352, 145 the road and bridge taxes as to the towns of N. E. 716. Momence, Ganeer, and St. Anne, and judg- [3] Spring Creek drainage district attemptments were rendered against its property for ed to levy a special assessment and an anthe taxes of said towns for $531.01, $234.63, nual repair tax against the property of appel. and $279.16, respectively. The railroad com- lant for drainage purposes, as aforesaid. In pany has appealed from the judgments for the assessment roll the property of appellant the road and bridge taxes for the last three was described as follows: named towns, and the county collector has

“Amount apportioned and assessed against appealed from the judgments sustaining the Chicago & Eastern Illinois Railroad Company, objections as to all of the other taxes. The whose railroad tracks run through sections 2, appeals will be considered together.

| 11 and 14 and across said drainage district, The facts were stipulated, and it was also

its proportion of the costs and expenses to stipulated the objections were in proper form pay for the cost of removing the rock in the to raise the question herein presented and drainage district, for benefits which will ac

ditch and cleaning out the main ditch in said that the People made a prima facie case. crue to said railroad company by reason of

[1] The court properly gave judgment for the said rock being removed in said main ditch the road and bridge taxes of the towns of and cleaning of the same in said district, damMomence, St. Anne, and Ganeer. The ob- ' ages allowed deducted." jection was as to the additional 16 cents levy for road and bridge tax in those towns, The acreage or further description of the which was levied after consent in writing property was not given. The court held said had been given for the levying of the same by description insufficient to sustain the levy the boards of town auditors of said towns at upon any property of the appellant. The a regular meeting held in each on the first property of a railroad company denominated Tuesday in September, 1923. The objection "railroad track” should be so described that of the railroad company to these taxes is it may be located by a competent surveyor, that legal consent could not be given by the This is a proceeding in rem and not in perboard of town auditors in each of said towns sonam. Judgment for taxes is to be given at a meeting held on the date aforesaid, and against the property, and when such a judgthat is the sole objection to these taxes. This ment is given against railroad property that court held, after a full consideration of that is so indefinite in its description that it canquestion, in the case of People v. Illinois Cen- not be located, and it is assessed by such a tral Railroad Co., 314 Ill. 339, 145 N. E. 719, description, the court is without jurisdiction and also in the case of People v. Illinois Cen- to render a tax judgment. People v. Chicago, tral Railroad Co., 314 11. 373, 145 N. E. 731, Burlington & Quincy Railroad Co., 256 11. that the amendment of the Township Organ- 353, 100 N. E. 231. ization Law in 1923 (Laws 1923, p. 628), pro- The judgments and orders of the county viding for special meetings of the board of court are affirmed. town auditors, does not affect the construc-l Judgment atlirmed.

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(315 111. 428)

in loading coal in a mine. That occupation SCRANTON & BIG MUDDY COAL & MIN. at the time of the hearing on the petition ING CO. V. INDUSTRIAL COMMIS. for review would have yielded him $8.99 per SION et al. (No. 16183.)

day. After his injuries he returned to the (Supreme Court of Illinois. Feb. 17, 1925.)

mine as a trapper at $4 per day until Decem

ber 22, 1920, when he was elected by the 1. Master and servant 419 Decrease of loaders of his local union as check weighman disability not established by proof of increas- at a daily wage of $9.50, plus an additional ed earnings.

day for each six days actually employed. On review of award sought by employee un

The record shows that a check weighman der Workmen's Compensation Act, § 19, subd. (h), evidence that mine workman, before injury is subject to removal or discharge at any a coal loader, is earning more since injury at time, that trapping is lighter work than different work, is not establishment of decrease loading coal, and that the duties of a check of disability, though under section 8, subd. (d), weighman require less physical exertion than earning capacity is element in original fixing of either of the other occupations. Irwin tes. award.

tified that after he suffered his injuries he 2. Master and servant 419–Burden on par.

was unable to load coal. There was no evity asserting change in disability since award. dence on the part of the plaintiff in error

Upon review of award under Workmen's in support of its claim that the disability of Compensation Act, $ 19, subd. (h), burden is Irwin had diminished, except that his com- . upon one asserting increase or decrease of dis- pensation as check weighman exceeded the ability to establish that fact.

wages he had received prior to his injuries.

[1, 2] The compensation received by a Error to Circuit Court, Williamson Coun- workman, who, after receiving injuries in ty; D. T. Hartwell, Judge.

a certain employment, engages in a differPetition by the Scranton & Big Muddy ent occupation, is not the only test of his Coal & Mining Company for a review of an physical ability or disability. The only ques. award made under the Workmen's Com- tion open for consideration on a review of pensation Act in favor of Joseph C. Irwin. this character is an increase or decrease of The prayer of the petition was denied by the his physical disability as previously deterIndustrial Commission. The circuit court mined, and this fact cannot be ascertained confirmed the decision of the Commission, by the consideration of some other question. and the petitioner brings error. Judgment Stromberg Co. v. Industrial Com., 305 III. affirmed.

619, 137 N. E. 462. The inquiry is whether Ed. M. Spiller, of Marion (A. P. Wodroska, ished, or ended, as the contention may be,

the disability has recurred, increased, dimin. of St. Louis, Mo., of counsel), for plaintiff in since the award was made. Bloomington, A. W. Kerr, of Chicago, and George R. Board, 276 111. 120, 114 N. E. 511; Casparis

Decatur & Champaign R. Co. v. Industrial Stone, of Marion, for defendants in error.

Stone Co. v. Industrial Board, 278 n. 77,

115 N. E. 822; Squire-Dingee Co. v. IndusDE YOUNG, J. Joseph C. Irwin was in- trial Board, 281 Ill. 359, 117 N. E. 1031. jured on September 9, 1919, while in the under paragraph (d) of section 8 of the act employ of the Scranton & Big Muddy Coal (Smith-Hurd Rev. St. 1923, c. 48, § 145), the & Mining Company, by falling coal, which average amount which the applicant earns struck him in the back. On November 18, or is able to earn in some suitable emplos. 1920, an arbitrator awarded him $12 per ment or business after the accident is a week for 5434 weeks-the period of tempora-proper element to be considered in determin. ry total incapacity—and the further sum of ing the compensation, if any, to which he $8.11 per week for 351 weeks for partial will be entitled in the first instance; but permanent incapacity. The employer paid that method of arriving at compensation the installments due under the award until | does not, alone, determine whether there April 6, 1921, when it filed its petition for has been an increase or decrease of the review under paragraph (h) of section 19 physical disability previously shown. Ridge of the Workmen's Compensation act as Coal Co. v. Industrial Com., 314 III, 509, 145 amended (Smith-Hurd Rev. St. 1923, c. 48, 8 N. E. 643. It does not follow as a proposi. 156), claiming a decrease of disability. A tion of law that because an employee earns hearing was had before the Commission, more at the time of the hearing on review which resulted in a denial of the prayer of than he earned at the time he was injured the petition. On review by writ of certiorari his disability has or has not been reduced. the decision of the Commission was con- Williams Co. v. Industrial Com., 303 Ill. 352, firmed by the circuit court of Williamson 135 N. E. 758. The burden is upon one as county. A further review is sought by this serting that there has been an increase writ of error.

or a decrease of the disability to establish When Irwin was injured he was employed that fact. Springfield District Coal Co. v.


l'oi o her cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) Industrial Com., 303 Ill. 312, 135 N. E. 790., which date he issued a writ of election to The character of the testimony here intro- ! All the vacancy, naming November 4, 1924, duced did not show that the disability of as the date of the election. On March 5, Irwin had decreased at the time of the hear. 1924, the Democratic county committee of ing on the review.

Cook county notified the secretary of state The judgment of the circuit court will be that a convention had been called by that affirmed.

party for April 4, 1924, to nominate a candiJudgment affirmed.

date for judge of the superior court of Cook county to fill such vacancy, and thereafter, on May 3, 1924, a certificate of nomination

was filed with the secretary of state, in (315 Ill. 349)

which it was stated that the relator had been PEOPLE ex rel. KELLY V. ERICKSON, Clerk nominated as a candidate to fill such vacan

of Superior Court. (No. 16210.) cy. The clerk of the county court thereafter (Supreme Court of Illinois. Feb. 17, 1925.) gave notice of an election to fill such vacancy

to be held June 2, 1924, and certified relator's Judges & Special election for election of name to the board of election commissioners judge of superior court to fill vacancy, not of the city of Chicago as the Democratic canofficially called by Governor, held void.

didate. The election commissioners also gave Election of judge of superior court to fill notice of the election more than 15 days privacancy created by resignation of incumbent, or to June 2, 1924. June 2, 1924, was the day held pursuant to notice of election given by clerk of county court and by board of election fixed by statute for the regular judicial eleccommissioners of the city, but before Gover- tion to elect a judge of the Supreme Court in nor bad officially declared a vacancy, and had the Seventh judicial district, of which Cook. called an election to fill it, held void.

county is a part. Relator's name was printed

on the official ballot and at that election he Mandamus by the People, on the relation received 103,757 votes. No other candidate of John J. Kelly, against Samuel E. Erickson, was nominated to fill the vacancy and no Clerk of the Superior Court. Writ denied. votes were cast for any other candidate. The

ballots cast in the city of Chicago were tabMcCormick, Kirkland, Patterson & Flem. ulated and canvassed by the election coming, of Chicago (Weymouth Kirkland and missioners for the city and those cast outside William H. Symmes, both of Chicago, of of the city were canvassed and tabulated by counsel), for petitioner,

the clerk of the county court. The county Robert E. Crowe, State's Atty., of Chicago clerk thereupon issued a certificate of elec(William H. Duval and William H. Gruver, tion to the relator and he took the oath both of Chicago, of counsel), for respondent. of office. The county clerk transmitted the

certificate of election and oath of office to the DUNCAN, C. J. The people, on the rela- secretary of state, but the Governor did not tion of John J. Kelly, by leave of this court, issue a commission to the relator. The counfiled this petition for a writ of mandamus to ty clerk also certified the returns of the eleccompel Samuel E. Erickson, clerk of the su- tion and tabulation of the votes to the state perior court of Cook county, respondent, to canvassing board. That board did not tabuput relator's name on the pay roll of the late the vote for relator, and did not projudges of the superior court of Cook county. claim his election, and refused to tabulate the The answer to the petition does not deny vote or certify his election. The respondent any of the facts alleged in the petition, and is the clerk of the superior court of Cook! the case is submitted upon the petition, an- county, and it is made his duty by law to swer, and briefs, and the only questions pre- make up a pay roll of the judges of the susented for decision are questions of law. perior court on the 1st and 15th of each

The facts are substantially as follows: On month and transmit it to the county board December 5, 1923, Charles A. McDonald, a of Cook county for its approval. Relator judge of the superior court of Cook county, requested respondent to place his name on transmitted his resignation as such judge to the payroll to be made up on June 15, 1924, the Governor. The unexpired term of the but he refused to do so. This petition prays office for which he was elected was more than for the writ of mandamus, directed to the one year and the vacancy could only be filled respondent, to place relator's name on that by a special election. On February 21, 1924, pay roll. the respondent, Samuel E. Erickson, as clerk The relator contends that he was legally of the superior court, notified the Governor elected judge of the superior court of Cook of the vacancy caused by the resignation of county at the election held June 2, 1924, notJudge McDonald. The Governor made no withstanding the fact that the Governor had official declaration that a vacancy in the of- issued no writ of election for an election on fice existed and he did not call an election that date. The question for determination to fill the vacancy until August 11, 1924, on is whether or not the relator was lawfully

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