author: Mr. Justice Baker

text:
    The People of the State of Illinois, ex rel. McKenzie Cleland, Plaintiff in Error, v. Albert C. Barnes, Defendant in Error.
    Gen. No. 18,585.
    1. Quo warranto—what may he determined upon application for. Upon an application for leave to file an information in quo warranto it is proper for the court to determine a question of law presented which is decisive of the entire controversy.
    2. Elections—when judges to he chosen not to he classified. Where two sets of judges for the same court whose terms are to begin and end at the same time are to be elected, one set of which are to fill expiring terms of previous incumbents and the other set to assume office by reason of an act creating additional judgeships, all judges so to be chosen are to be voted for without classification and of. those voted for the ones receiving the highest number of votes are to be declared elected, regardless of whether some of them were nominated at primaries held and others by conventions.

      Quo warranto. Error to the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed May 23, 1912.
    John E. W. Wayman, Frank F. Reed and Charles A. Williams, for plaintiffs in error.
    Axel Chytraus, for defendant, in error.
   Mr. Justice Baker

delivered' the opinion of the court.

This is a writ of error sued out to reverse an order of the Circuit Court denying leave to file an information in the nature of a quo warranto to determine the right of the respondent to the office of Judge of the Superior Court of Cook County. The facts set out in the petition, accompanying affidavits and the answer to the rule are not controverted. The case is one presenting a question of law decisive in favor of the respondent if decided in his favor, and it was proper for the court to decide that question upon the application for leave to file an information.

The following is a statement of the facts sufficient for an understanding of the questions involved. Prior to June 10, 1911, there were twelve Judges of the Superior Court, the term of four of said Judges expired on the first Monday in December, 1911, and the Act of June 5, 1911, provided for the election of their successors at the November election in that year. Nominations were made by the different political parties at the April primary 1911 of four candidates for Judge of the Superior Court. The Judges whose terms expired in December were Judges Kavanagh, McSurely and Ball, republicans, and Judge Fitch, democrat. The republican nominees at the primary were Kavanagh, McSurely, Freeman and Barnes.

An Act approved June 10, 1911, increased the number of judges to eighteen and provided that the nomination for such additional offices in 1911 should be made by conventions of the precinct committeemen of the respective parties to be held September 19, 1911. At each of said conventions six candidates for Judge of the Superior Court were nominated; the relator was one of the republican nominees. The official ballots provided by the Election Commissioners in Chicago and Cicero and by the County Clerk in the rest of the County, contained under each party appellation the printed words, “For Judges of the Superior Court, 10 to be elected.” Underneath these words were, at the head of the list of candidates of each party, the four candidates nominated at the primary, followed by the six candidates nominated by the conventions, with no marks or words on the printed ballots to show which of said candidates were nominated at the primary and which at the convention, or that some of said candidates were nominated to take the places of the Judges whose terms expired in December, and others to fill "the offices created by the Act of June 10, 1911. In the number of votes received the respondent was the fifth and the relator the eleventh, receiving 12,000 less votes than the respondent. The votes were' canvassed on the theory that there was but one class of judges to be elected, and that the ten candidates who received the highest number of votes were elected.

All Acts relating to the Superior Court passed after June 26,1893, and before June 10, 1911, provided that the Judges of said court should enter upon the office on the first Monday of December after their election. Act of March 31, 1907, Laws of 1897, 216; Act of February 16, 1907, Laws of 1907, 262; Act of June 5, 1911, Laws of 1911, 284.

Section 1 of the Act of June 10, 1911, (Hurd’s Stat. 680) provides that “the number of judges of the Superior Court of Cook County be and the same is hereby increased from twelve, its present number, to eighteen.” Section 2 provides for the election of said six judges in November, 1911, and every six years thereafter, “to hold their offices for a term of six years and until their successors shall be elected and qualified.” Section 3 provides that the nominations “for said additional offices, ’ ’ shall be made under the primary law, excepting that in 1911 they shall be made by conventions and that the nominations so made, “shall be placed on the official ballot to be voted for at said election in the same manner as if said nominations had been made at a primary election. ’ ’ The County Clerk gave notice that on November 7, 1911, an election would be held for four judges of the Superior Court, in compliance with the Act of June 5, 1911, and also for six judges of said court, in compliance with the Act of June 10, 1911.

The basis of the petition- was that there were two classes of judges elected, one class to fill the vacancies caused by the expiration of the terms of four of the sitting Judges, the other to fill the six additional offices created by the Act of June 10, 1911; that the nominations at the April primary were and could be only for the offices existing at that time; that the nominations made by the conventions in September, pursuant to the Act of June 10th, were and could be only for the additional offices created by that Act, and that as respondent was the fifth in the number of votes given to primary nominees and the relator sixth in the number of votes given to convention nominees, the relator was elected and the respondent was a usurper. The contention of the respondent is that there were not two classes of judges, but ten places of one class to be filled, and that he, being one of the ten candidates receiving the highest number of votes, was elected.

The acts of June 5 and June 10, 1911, relate to the same subject and should be read together and in connection with all other acts relating to the same subject.

We do not think that it was the intention of the Legislature to create two classes of judges to be elected at the same time, each for a full term of six years, but that the intention of the Legislature was to increase the number of judges from twelve to eighteen and provide for the nomination and election of six additional judges both in 1911 and at the expiration of the terms of the judges then elected. It provided that the nominations in 1911 should be made by conventions and that the nominations so made should be placed on the official ballot in the “same manner as if the nominations had been made at a primary election. ’ ’ This we think means that the convention nominations were to be placed on the ballot in one group with the primary nominations, and gave to the officers charged with the duty of preparing the official ballot no authority to divide the nominees for Judges of the Superior Court into two classes. The ballots were prepared on the theory that ten judges were to be voted for indiscriminately for full terms, and we think were properly so prepared and that the ten candidates receiving the highest number of votes were elected. This conclusion renders it unnecessary to consider the other questions argued by counsel.

Leave to file the information was properly refused, and the order denying such leave and dismissing the petition is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Teofils Bednarski, Appellee, City of West Hammond, Appellant.
    Gen. No. 18,143.
    1. Municipal corporations—when contract enjoined. An injunction will be granted restraining the making or carrying out of a contract which increases the indebtedness of the municipality in excess of the constitutional limitation.
    2. Municipal corporations—what indebtedness considered in determining whether constitutional limit of indebtedness exists. Payments not matured are to be considered in determining whether a municipality is indebted up to its constitutional limit.
    3. Municipal corporations—what considered in determining whether constitutional limit of indebtedness esxists. A sum of money for which the municipality has been adjudicated as liable in special assessment proceedings will be considered in determining whether the constitutional limit of indebtedness has been reached.
    4. Municipal corporations—what indebtedness not considered in determining whether constitutional limit of indebtedness exists. An indebtedness or evidence thereof will not be considered if there is money in the treasury to meet the same.
    5. Municipal corporations—when bonded indebtedness and warrants do not equal constitutional limit. Held, upon the showing in this case, that the outstanding bonded indebtedness and warrants of the municipality did not reach in the aggregate the constitutional limit.
    6. Judgments—how cannot be attacked. A judgment rendered in special assessment proceedings cannot be collaterally attacked.

      7. Injunctions—when right of complainant to maintain will not be determined. Whether a complainant in an action to enjoin a municipal corporation from entering into a contract is a mere dummy will not be determined finally if the showing is not conclusive upon affidavits presented in connection with the motion for a preliminary injunction.
    Bill in chancery. Appeal from interlocutory order of Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed May 27, 1912.
    Statement by the Court: This is an appeal from an interlocutory injunction of the Superior Court of Cook County in a suit in chancery brought by one Teofils Bednarski against the City of West Hammond in said Cook County, and its President, Hessler, its Clerk, Mankowski and its Treasurer, Zimmerman.
    The bill in the cause alleges that during 1911, prior to August 1st, the government of the Village of West Hamipond was legally changed into a city government and the said Village duly erected into a city; that the said Hessler, Mankowski arid Zimmerman, who .were theretofore the President, Clerk and Treasurer of said Village, respectively, have since exercised and are now exercising the powers and performing the duties of Mayor, City Clerk and City Treasurer; that the Trustees of said Village are likewise exercising the powers and performing the duties of Aldermen of the city; that before the change from the village to the city government the President, Clerk and Trustees caused to be prepared plans, etc., for all that was necessary for the street lighting of West Hammond and the erection of a transmission line from Dalton to West Hammond; that on August 5th, acting as officers of the City of West Hammond, they accepted the bid of the Inter-State Electric Company for said work, in the sum of $18,997, and entered into a contract or are about to enter into a contract with said Inter-State Electric Company for said amount for the doing of the work covered by the said plans and specifications; that neither the Trustees of the Village nor City Council of the City, during the first quarter of the fiscal year of said Village or City, which commences on May 1st of each year, made such an appropriation as is required by the City and Village Act for the work and materials covered by the said plans and specifications for said electric lighting plant and transmission line, and that no proposition to make an appropriation for such purpose has been sanctioned by a majority of the legal voters of either the City or Village by a petition signed by them, or at a general or special election duly called therefor; that the value of the taxable property within the limits of West Hammond as ascertained by the last assessment for State and County taxes previous to the making of said contract (if said contract has actually been executed) was $643,052; that on August 5, 1911, the complainant is informed and believes, the City of West Hammond was and is indebted in the aggregate in the sum of approximately $41,335, which indebtedness is made up as follows :
    Municipal bonds outstanding and unpaid issued by the Village of West Hammond in the sum of approximately.........................$ 6,000
    Electric light bonds approximately........... 1,000
    Refunding water bonds approximately........ 2,000
    Pumping station bonds approximately........ 2,335
    Warrants drawn against the Treasurer of said Village and City of West Hammond outstanding and unpaid for lack of funds, approximately .............................. 12,000
    Final judgments outstanding against said Village and City of West Hammond aggregating, approximately ....................... 18,000
    Total approximate indebtedness............$41,335
    that the aggregate indebtedness of West Hammond on August 5, 1911, was and is at the time of the filing of the bill, exclusive of the indebtedness contracted for or contemplated in said contract with said Inter-State Electric Company, more than $8,000 in excess of the amount which said Village or City of West Hammond had or has the right to incur under the provisions of the Constitution of Illinois; that the said officers of West Hammond claim the right to proceed with the contract entered into with said Inter-State Electric Company or about to be entered into with said Company, and pay out the public funds of West Hammond according to the terms of said contract in an aggregate amount of $18,997, all or at least a portion of said payments to be made during the current fiscal year of said City, and that said officers have announced and declared their intention so to do; that said payment will be unlawful, first, because no valid appropriation therefor has been made; and, second, because such payments will be the liquidation of an indebtedness incurred in excess of the limitation allowed by the constitution of Illinois; that said acts and expenditures would be to the injury of the complainant and all other citizens and taxpayers of West Hammond. The bill therefore prays an injunction against the City and Hessler, Mankowski and Zimmerman, restraining them from signing or executing any contract with said InterState Electric Company, its assigns, officers or agents, or, if such contract has already beén entered into, from carrying out the provisions thereof, or paying out any of the corporate or other public funds of the City of West Hammond on account thereof, etc.
    Teofils Bednarski, the complainant, verified this bill by swearing that the same was true in substance and in fact, except as to the matters therein stated to be upon information and belief, which things he believed to be true.
    The bill was filed on August 8, 1911. September 30, 1911, the City of West Hammond, Hessler and Zimmerman filed their joint and several answer to the bill. Their first allegation is that Teofils Bednarski, although he has, in and for several years last past, been a resident, citizen and taxpayer of the City of West Hammond, only owns in West Hammond the small house in which he lives; that the total value of his said property is not over $1,000, and that he does not pay over $12 per year taxes thereon; that he has no personal interest in this case and is a mere dummy for the Northern Indiana Gas & Electric Company, and that the bringing of the bill was instigated and brought about by the Northern Indiana Gas & Electric Company, and that they have employed and paid the attorneys and solicitors for the complainant herein, and that Teofils Bednarski has no interest whatever in this case except for the Northern Indiana Gas & Electric Company.
    The answer then admits the allegations of the bill relating to the changed and existing government of West Hammond and the plans and specifications which were prepared and on which bids were secured on August 5, 1911. It then alleges that said plans and specifications, in addition to providing for lighting West Hammond, include the necessary equipment to furnish power for the sewerage pumping station at West Hammond; that as a part of the system of sewerage and method of cleaning the same, the City of West Hammond has a sewerage pumping station operated by an eight horse power motor, and it has been operating said plant by electricity furnished by the Northern Indiana Gas & Electric Company.
    It further alleges, that prior to September, 1908, the Village of. West Hammond had been possessed of an electric lighting system plant and operating its own pumping plant in the sewerage pumping station; that it was then proposed to turn over to one Booth the said pumping station and electric lighting system; that at the September Term 1908 of the Circuit Court of Cook County, on a bill in chancery, brought by August Mayer, the Village of West Hammond, its President, Clerk and Board of Trustees were enjoined from doing any act looking to such transfer of use and control and from doing anything to remove or alter the pumps, and from purchasing new pumps and from abandoning, neglecting or refusing to use the electric lighting station and the belongings therein, and from “permitting said Booth, his heirs and assigns to use the poles, wires, arc lamps, street lamps, or other property or belongings of said Village,” and from permitting said Booth from erecting any poles or stringing any wires “over which electricity for lighting, heating or power purposes is to be used, conveyed or distributed in any street, alley or public ground in West Hammond;” that the said injunction remains in force, but that thereafter the President, Clerk and Board of Trustees entered into a contract with Booth in regard to furnishing electric current for the City of West Hammond, in violation of the terms of said injunction, and Booth assigned his rights under it to the Northern Indiana Gas & Electric Company; that in violation of the terms of said injunction the exclusive use of the plant of the electric lighting system by the Village of West Hammond was turned over to the Northern Indiana Gas & Electric Company, which since that time had been furnishing electric current to West Hammond, in violation of said injunction; that the Northern Indiana Gas & Electric Company is an Indiana corporation; that it has been furnishing gas and electric light for compensation to private consumers in the State of Illinois and doing a general business in West Hammond, and because never licensed to do business in Illinois is subject to a penalty under the statutes of Illinois.
    There are then allegations in the answer that the President of West Hammond in 1909 received a proposal from the Sanitary District of Chicago to furnish electric current for the lighting of West Hammond at a. rate which would be a large pecuniary saving to the Village, and that after the Trustees of the Village had then rejected it, it became a political issue in said Village, and a board of Trustees favorable to the arrangement was elected; that another proposition was made by the Sanitary District, for current to light the streets and operate the sewerage pumping station, which in the aggregate would save the City of West Hammond over four thousand four hundred and fifty dollars yearly, after the original investment was made; that in order to obtain the current from the Sanitary District of Chicago, it would be necessary for West Ham-' mond to construct its own feed line for about five miles from Dalton to West Hammond and to pay a certain charge of the Sanitary District for maintenance on the line from Dalton to the power house of the Sanitary District in Chicago; that it is necessary to install at the present time at least 25 more arc lights in order to properly light West Hammond; that the City owns its poles and wires and all other appurtenanees to the street lighting system except the lamps; that at the time the street lighting system was turned over to Booth the Village of West Hammond had a full set of arc lamps for all of the lighting system of said Village, all of which have been replaced by said Booth or the Northern Indiana Gas & Electric Company, his successors.
    The answer then admits that August 5, 1911, the officers and trustees acting in behalf of the City of West Hammond accepted the bid for the work covered by the plans and specifications which had been prepared for the electric light and sewerage plants of West Hammond in the sum of $18,997, and entered into a contract with said Inter-State Electric Company for constructing said feed line and fully equipping the electric lighting system and sewerage pumping station of the City of West Hammond for operation by electricity furnished by the Sanitary District of Chicago, but that by said contract they were only to pay the sum of $2,500 during the current fiscal year, the remainder of the contract price to be paid in treasury warrants or approved bonds of the Village bearing interest at six per cent, and due in one, two, three, four and five years after date.
    The answer then asserts that the Board of Trustees did, during the first quarter of the present fiscal year, make an appropriation as required by the City and Village Act of Illinois for cleaning sewers and for general expenses of the Village of West Hammond, from which payment for the work and material called for by said electric lightning plant and transmission line and sewerage plant, which were required to be paid for during the current fiscal year, can be made; that as to the allegations of the bill that the contract and payments in contemplation and sought to be enjoined thereby will be in violation of the constitution of Illinois, because the limit of allowed indebtedness has been already reached, the facts are these: That the assessed taxable property within West Hammond, as ascertained by the last assessment previous to the making of the contract with the Inter-State Electric Company was as charged in the bill $643,052, but that it is not true that on August 5, 1911, and at the present time, the City of West Hammond was and is indebted in the aggregate sum of $41,335; that the total bonded indebtedness of the City of West Hammond is $9,335, made up as follows:
    Municipal Bonds ......................... .$5,000
    Electricity Bonds ........................ 500
    Refunding Water Bonds..................... 1,500
    Pumping Station Bonds...................... 2,335
    that there is money in the City Treasury sufficient to pay all outstanding indebtedness for which warrants have been issued; that there are no judgments rendered in any court of record against the Village of West Hammond or the City of West Hammond for any sum; that the only thing that could be considered in the nature of a judgment is the amount assessed against the City of -West Hammond for public benefits in some special assessment proceedings, and that these amounts are not due; that the entire indebtedness of the City of West Hammond does not now and will not, after the issuance of the bonds provided for in the contract with the Inter-State Electric Company, exceed the amount allowed by the constitution of the State of Illinois; that therefore the officers of West Hammond desire to proceed with the contract with the Inter-State Electric Company and claim the right to do so.
    The defendants further allege that it will cost, under the operations of the Northern Indiana Gas & Electric Company, during the current fiscal year, at least $4,000 to light the City of West Hammond, and at least $1,800 to operate the pumping plant at the sewerage station at West Hammond.
    This answer was signed by the City of West Hammond, Hessler and Zimmerman by their solicitors, but was not sworn to.
    October 13, 1911, the Chancellor in the Superior Court entered an order that a writ of injunction issue ‘‘ as prayed in said bill of complaint. ’ ’
    On the hearing, which resulted in this order (from which order this appeal is taken), certain affidavits were presented and read, which appear in the record.
    Of these two were the affidavits of Hessler, President of the Village, acting as Mayor of West Hammond; the others were affidavits of Zimmerman, the Treasurer, and Mankowski, the Clerk, respectively. There were also presented and considered and incorporated into the certificate of evidence in the transcript filed in this appeal the certified copy of the contract and specifications between the Inter-State Electric Company and the City of West Hammond, the certified copy of the minutes of the meeting of the Village Board of West Hammond on July 22, 1911, and the orders of the County Court entered in special assessments Nos. 45 and 46 of West Hammond.
    The affidavits of Hessler and Zimmerman practically restated under oath all the allegations of the answer so far as the latter were not conclusions, but recited figures more specifically and added certain other matters pertinent to the controversy. Where material, any difference in form of statement will be mentioned in the opinion following.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellant.
    L. L. Bomberger and Marvin E. Barnhart, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The two points made in favor of the issuance of the injunction in this case were:

First, that the action of the defendants in making the contract enjoined was illegal because carrying the indebtedness of the City of West Hammond beyond the constitutional limit; and, second, that it was the incurring of an obligation payable within the fiscal year, for which no appropriation had or could now legally be made by the proper municipal body.

In this appeal the defendants, who are seeking the dissolution of the injunction by the reversal of the order of the Superior Court, deny both these assertions. They say that the debt limit has not been reached and will not be exceeded by the addition of such obligations as the proposed contract will make, and that an appropriation has been made under which expenditures can legally and properly be made to meet said obligations. But they take also another position, which they contend is fatal to the complainant’s case. It involves the right of the complainant to maintain his suit. If that fails, the injunctional order, immediately attacked by the appeal, of course must fall with it. Except for this last contention our decision might well rest on one division or detail of the appellee’s argument alone, but as we understand we have been especially requested to express our views on all the matters involved in the cause, for the guidance of a public body and public officers, presumably desirous only of properly executing their trust, we shall discuss them all and not merely the questions on which our final decision must turn.

First. The Constitution of Illinois provides, Article 9, Section 12, that:

“No county, city, township, school district or other municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount including existing indebtedness in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness.”

It is charged in the bill and is admitted in the answer that the last assessment of the taxable property in West Hammond before the making of the contract involved was $643,052. This makes the constitutional limit of indebtedness $32,152.60.

It is conceded that the making of the contract will be the incurring of a new indebtedness to the amount of $18,997.27. This concession is inevitable in view of the decision in Evans v. Holman, 244 Ill. 602, although the contract provides for successive annual payments instead of a lump sum.

If from the constitutional limit of $32,152.60 we deduct $18,997.27, there is left $13,154.33. The question, therefore, in this branch of the case is whether the City of West Hammond is now indebted to a greater or less amount than $13,154.33. If it is so indebted to, a greater amount, the contract cannot be legally entered into. If it is not, it may be. The complainant in his bill on information and belief alleges that on August 5, 1911, and since, the City was and is indebted in the sum of $41,335. The defendants in their answer deny that.the City was and is.indebted in that sum, and further make the general allegation that the entire indebtedness of the City “does not now and will not after the issuance of the bonds provided for in the contract with the Inter-State Electric Company exceed the amount allowed by the constitution of the State of Illinois.” In their argument, based upon the affidavits and other evidence submitted at the hearing, they assert that this indebtedness is $11,543.28.

A tabulated parallel column statement of the computations of the respective parties will show the items included by the complainant and rejected by the defendant, out of which this difference of almost $30,000 arises.

Amount of indebtedness as stated by Bill of Complaint.

1. Municipal Bonds outstanding and unpaid issued by the Village of West Hammond in the sum of approximately.. .$6,000

2. Electric Light Bonds approximately .................$1,000

3. Refunding Water Bonds approximately ............$2,000

4. Pumping Station Bonds approximately ............$2,335

Total bonded indebtedness $11,335

Amount of Indebtedness admitted by the defendants, with notes of their contentions as to items included by the complainant, but denied by them.

1. Municipal Bonds (as reported on May 3, 1911, by an auditing firm, no bonds having been since issued), ................$5,000

2. Electric Light Bonds (reported as above) ...............$500

3. Refunding Water Bonds (reported as above), ......$1,500

4. Pumping Station Bonds.$2,335

Total bonded indebtedness. ,$9;335.

Up to this point the difference of $2,000 shown is between the statements (admitted to be only approximate computations) of the complainant and the affidavit of the Treasurer of West Hammond. We may properly, therefore, take as proven fact that the bonded indebtedness to be considered amounted to $9,335, instead of the larger sum stated by the complainant. But as to the other items, listed below, there will be seen to be irreconcilable differences in the positions of the parties litigant.

5. Warrants drawn against the Treasurer outstanding and unpaid for lack of funds, approximately ................$12,000

5. Warrants drawn against the Treasurer outstanding, which there is not money in the treasury to pay ..........$2,208.28

As to this item in which there is a difference of nearly $10,000 between the computations of the parties, much more than sufficient to be decisive as to the illegality of the proposed contract if the position of the complainant is justified, there are several contentions.

It is said by the complainant, first, that there is nothing in the affidavits of Zimmerman and of Hessler (who, on this point, merely says that he has read Zimmerman’s affidavit and that it is true) which overcomes the statement of the bill made and sworn to on information and belief, that there were on August 5, 1911, when the contract was made, and August 8, 1911, when the bill was filed, approximately $12,000 of warrants drawn against the Treasurer outstanding unpaid, and which there were no funds to pay.

Treasurer Zimmerman’s affidavit shows only the condition on May 1st, 1911, and payments made since that date. On May 1st, 1911, he says there were outstanding warrants on the Treasury amounting to $13,-152.47, and that between May 1st, 1911, and August 17, 1911, (when he made his affidavit) he had paid of these $4,944.19, and on August 17, 1911, had on hand 1 ‘ over $6,000 to meet the same whenever they were presented for payment.” Non constat, it is said that the situation was not entirely different as to the aggregate amount of the warrants outstanding on May 1st, 1911, or on August 17, 1911, from that on August 5th or August 8th, and different as to the cash on hand to meet them on August 5th or 8th and on August 17th. Therefore the statement of the bill is in no respect overborne. The argument is plausible but, we do not think, sound.

The bill purports to state the amount very generally and only approximately, and to be wholly on information and belief. It is brought to prevent municipal action within the usual power of its officers, and the right to prevent it should be strictly made out. It appears from one of the affidavits of Hessler that the fiscal year of the municipality begins on May 1st and ends on April 30th. It appears from Zimmerman’s affidavit that an audit was made of the accounts of the municipality on May 1, 1911, and by fair inference it appears that for that reason that date was taken as the one on which the exact showing or figures of the outstanding warrants was given. It certainly would have been more satisfactory had a later date been taken to show the figures, but considering the indefinite statement of the bill, and the fact that the affidavits of Zimmerman and Hessler were prepared for and read at the hearing of this application, and as contravening the bill, and that no attempt was made by complainant to contradict their natural import, that they were treating substantially of the situation at the time the impugned contract was made, and considering further that the burden was strictly on the complainant to prove the illegality of the contract, we cannot give the narrow effect to them insisted on by complainant. We regard, therefore, as established, for the purposes of this case, that the outstanding warrants to be considered were, at the time of the contract $13,152.47, less $4,944.19—that is $8,208.28,—and that the Treasurer’s affidavit imports that he then had $6,000 to meet them.

But the further contention is made by complainant that the possession of this $6,000 did not in any event reduce the amount of indebtedness of the City. The warrants were indebtedness of the City, it is maintained, irrespective of the amount of cash in the treasury. To this proposition there is cited the opinion in McDonald v. The City of Chicago, 176 Ill. 404, but the warrants there mentioned were time warrants, and the decision does not apply to warrants issued, as the ones here involved seem to have been, as checks or orders upon the Municipal Treasury. In a sense in common speech they may be called evidences of municipal indebtedness, but they are not such indebtedness or evidence of it within the meaning of the constitutional limitation, if there be money in the Treasury to meet them. It has been so decided by the Supreme Court. Stone v. City of Chicago, 207 Ill. 492. And indeed, notwithstanding the contention of complainant in argument, this would seem to be conceded in his bill, for the warrants listed as a part of the indebtedness are said to be “unpaid for lack of funds.”

It is, however, further contended that the affidavits do not show that there is any money in the treasury available to meet the $8,208.28 warrants admitted by the affidavits to be outstanding, and indeed that it appears affirmatively that there was not. This position contradicts the express language of the Treasurer’s affidavit, which is that “he now has on hand to meet said warrants that have been issued, over $6,000 whenever the same are presented for payment. ’ ’ The argument of complainant, however, is that the affidavit must be taken in connection with Hessler’s concerning the appropriation bill for the fiscal year, beginning May 1, 1911, as meaning only that the Treasury contains that amount of money, of which only $3,055.81 is available to meet the warrants, leaving $5,142.47 of indebtedness on this item, instead of $2,208.28 only, as maintained by the defendants. This is material, for while $2,208.28 added to the bonded indebtedness still leaves a margin of constitutional ability sufficient to include the proposed contract, $5,142.47 so added carries the indebtedness beyond the $13,154.33 which we have above noted as the limit which leaves such a margin. The computation of complainant is made as follows: An affidavit of Hessler shows the appropriation for the fiscal year from May 1st, 1911, to April 30, 1912, “for paying unpaid village warrants” to be $8,000. The affidavit of Zimmerman states that since the first day of May, 1911, he has paid on outstanding warrants $4,944.19. Therefore only $3,055.81 of this appropriation or of the City’s money remains available to pay on the warrants, and can be “on hand to meet them.’’ The vice of this reasoning seems to us to be that it assumes that the payment of $4,944.19 was made altogether from the appropriation for the fiscal year—1911-12. This does not appear from the affidavits, and no justifiable inference seems to us possible from them to overcome the Treasurer’s statement that he has the $6,000 he mentions “on hand to meet said warrants that have been issued whenever the same are presented for payment.” The payments, or a portion of them, spoken of may well have been made from the appropriation of the fiscal year 1910-11.

We therefore conclude that the complainant has not shown that by the bonded indebtedness and the warrants the indebtedness has been carried to a point forbidding the contract enjoined.

But complainant insists that it is so carried beyond this point by many thousands of dollars by the sixth item listed in his bill. The contentions as to this item are as follows:

6. Final judgments outstanding against said Village and City of West Hammond, aggregating, approximately .........$18,000

6. Judgments against the said City and Village......Nothing

The affidavits presented at the hearing contain on this point only the statement of the Treasurer, Zimmerman, that “he does not know of any judgment that has ever been rendered in any court against the Village of West Hammond or City of West Hammond for any sum whatever, that he is informed and believes that there are some special assessments for local improvements, in which some portion has been assessed against the Village of West Hammond, but that the same are not due and will not be for a considerable period of time.”

But two orders of the County Court of Cook County entered July 10, 1911, one in special assessment of West Hammond No. 45, and one in special assessment of West Hammond No. 46, were presented as evidence of the judgments alleged. The material matters contained in them are that they recite that the Village of West Hammond, through its Board of Local Improvements has applied for approval of its certificates “filed in compliance with Section 84, Chapter 24, ’Revised Statutes of Illinois,” (by which incorrect description it may be presumed is meant Section 84 of “An Act concerning Local Improvements, Approved June 14, 1897,” as amended by Act approved May 14, 1903), for the paving of certain streets and alleys in said village; that objections thereto have come to be heard; that the contractors for the work and the holders of bonds issued by the Village of West Hammond, anticipating the collection of the assessment and the Village of West Hammond and the objectors are before the Court; that the Court finds in each case that if the work “has” been constructed as therein provided there would be a rebate coming to each of the property owners of 20 per cent, of the total amount of the assessment made against his property; and that they then decree that the assessment as confirmed to each item of property shall be reduced 20 per cent., and that (it appearing that the first installment of said assessment is in the hands of the collector) the reduc-' tion of the total amount of the assessment shall be spread over the installments from the 2nd to the 10th inclusive; that in detail the reductions shall be made as set forth in the order as to the 280 lots named which were assessed; and that (it appearing that some of the property owners in said assessment have paid all of the said assessments levied against their said property in full) upon exhibition of receipt of any payment on said assessment by any property owner, the Village authorities of West Hammond shall immediately pay to said property owners 20 per cent, of the amount of the assessment originally confirmed against the said property, that (it appearing that certain sums were expended by the Board of Local Improvements and the Trustees of the Village of West Hammond, and 'by the Trustees of the Village of West Hammond in relation to the construction of the local improvement involved and improperly charged against the property assessed in said roll, but that the expenditure of said sums was authorized by the Board of Local Improvements, and that the Village of West Hammond is liable therefor;) the deficiency of twenty per cent is made a charge against the Village of West Hammond; that said .Village is decreed to pay the legal holders of any bonds that have been issued, and, if bonds have not been issued, to the contractor who did the work 20 per cent of the assessment as confirmed, and that judgment be and is entered against the Village of West Hammond in the sum of $8510.65/100 divided into nine yearly installments of $851.85 each in special assessment 45 and of $9036.72/100 divided into nine yearly instalments of $1004.08/100 each in special assessment 46—to meet said deficiency, and that as modified “the petition of the petitioner, together with cost of improvement” (the certificate of the Board of Local Improvements f) be “approved and confirmed.”

There is also in the record an affidavit of Mankowski, the City Clerk, showing that for the Improvement 45 Special assessment bonds and contractors’ vouchers had been issued to various persons amounting to $29807.55, and for Improvement 46 similar bonds and vouchers to the amount of $30209.89.

On the face of the record there certainly appears to be judgment indebtedness against the City of West Hammond to the amount of $17547.37, far more than enough, added to the other admitted indebtedness, to make the contract liability involved in this case illegal and inadmissible.

The defendants, however, maintain that under the authority of Jacksonville Railway Company v. City of Jacksonville, 114 Ill. 562, and of Stone v. City of Chicago, 207 Ill. 492, these judgments, because for public improvement and connected with a special assessment for such improvement, are not to be considered in computing the constitutional limit.

■ We are unable to assent to this view. Neither of the cases cited is like the present. The implications of the Jacksonville case rather tend against than in favor of the contention, as we think, and in the Stone case •no such proceeding or judgment as is involved here existed.

As we construe the judgment orders of the County Court, the situation in West Hammond was this:

Through its Board of Local Improvements it had constructed an improvement under an ordinance, duly passed. A special assessment had been levied and confirmed. Vouchers payable from the first instalment and bonds from subsequent ones had been issued to contractors. The improvement had been completed. Under Section 84 of the “Act concerning Local Improvements,” the Board of Local Improvements filed a certificate as required, with the County Court, stating that the said improvement conformed substantially to the requirement of the ordinance, and made “application to the court to determine whether or not the facts stated in said certificate were true. ” Objections were filed; the Court, under the provision of the Section that it shall “hear and determine the same in a summary manner and enter an order according to the fact, ’ ’ determined that the Village, by its Trustees and Board of Local Improvements had charged in the assessment sums which they had spent, hut had no right so to charge; that the Village was liable for those sums either as represented in the bonds or vouchers or otherwise, and that if any property owner had paid his proportion of them to the Village he had a claim for a rebate from it; and a formal judgment was entered against the Village in favor of the bond holders and voucher holders and in favor of any property owner entitled to such a cash rebate.

Whether all this was regular and authorized under Section 84 aforesaid, is not a question before us. Not even a collateral attack is made on these judgments; they are merely alleged not to be evidence of indebtedness under the constitutional provision. But a collateral attack ‘we could not consider here if it were made.

It seems to us that these judgments are even more clearly indebtedness to be considered than was that discussed in The People v. Chicago & Alton Railway Company, 253 Ill. 191 (an opinion handed down by the Supreme Court since this case was argued before us), where the improvement bonds themselves, issued for the construction against the amount due from the municipality and unreduced to any judgment, were held indebtedness under the constitutional provision; the Jacksonville and Stone cases being carefully distinguished in the same sense that the argument of complainant distinguishes them here.

Because of the indebtedness evidenced by these judgments, therefore, we hold that the constitutional limit had been passed by the City of West Hammond before the contract in question was made, and.that the making of said contract was illegal.

This holding renders it, as we have before indicated superfluous to discuss the question whether, a legal appropriation was made by the legislative body of the municipality in apt time, to which the expenditures under the proposed contract to be made in the fiscal year 1911-12 could be charged. We will content ourselves, therefore, with saying that we are of opinion there was not.

Neither the appropriation of $2000 “for cleaning and repairing of sewers, ’ ’ nor the general appropriation of $4000 “for expenses not otherwise provided for” seems to us sufficient. Certainly they do not meet the purpose stated in Railway Co. v. The People, 225 Ill. 463, to be the chief one of the statutory provision of Section 2 of Article 7 of the City and Village Act, namely “to apprise the tax payers and all others interested as to what the public funds are to be used for.”

Holding, as we do, that the contract enjoined in this case was one clearly without the power of the defendants to make, we should deem, it rather unfortunate than otherwise if we were compelled to the conclusion on the record before us that the complainant herein has no standing to maintain this bill. However, while we do not think it necessary to discuss the contention involved at length, we have given it much consideration. The affidavit of John Hessler clearly enough, shows, if it is to be taken as establishing the facts sufficiently for a final decree, a strong motive for an attempt by the Northern Indiana Gras and Electric Company to prevent the performance of the contract sought to be enjoined. It also shows a public saving of a very considerable amount which would come to the municipality of West Hammond by its execution and performance. It shows also a very trifling interest in the taxes of West Hammond and the expenditure of the money of West Hammond' on the part of the complainant (a fact which by itself would be no bar to his maintaining his bill), and asserts that this affiant is informed and believes that the complainant has no personal interest in this case, and that he is merely a dummy for the Northern Indiana Gras & Electric Company. The affidavit also lends further color to the correctness of this belief by the included statement that the “notice of motion for injunction in this case was served upon affiant by John Kamradt, who claims to be assistant manager of the Northern Indiana Gas & Electric Company, that at that time the affiant told said Kamradt that Bednarski would find it difficult to give a bond on an injunction, and that Kamradt told affiant, ‘You know the Gas Company can give a bond.’ ” The affidavit, if to be taken as establishing the fact for a final adjudication, also shows that the Northern Indiana G-as & Electric Company would not have such “clean hands” as would enable it, in pursuance of the motive indicated by the affidavit, even were it itself a tax payer of West Hammond, to maintain this bill in its own name. It seems, as viewed in the light of the allegations of the affidavit we are discussing, to be itself engaged in a contract for lighting the municipality forbidden both to it and to the municipality.

We are not prepared to assent to the sweeping proposition of the complainant that if all this matter urged by the defendants were taken as established, it would be no defense. For this position he relies on the authority of the City of Rock Island v. Huesing, 25 Ill. App. 600. Apart from the consideration that an appellate court decision in another district is for us authority only in a very limited sense, we think that the distinction pointed out by the defendants between their contention and that of the defendants in the Huesing case is well taken. The contention in this case is based on the position that the real mover of the litigation, for which the complainant is but a name, is without standing to maintain this bill; that of the defendants in the Huesing case contained, so far as can be seen, no such element.

We think that as a general- proposition it is true that a court of equity can look through shadows to substance and through a party who is a dummy to the real party in interest, and decide whether the real party can be allowed relief. For this, we think that The People v. The General Electric Company, 172 Ill. 129, and many other well considered cases in various jurisdictions, are authority.

But neither are we prepared to assent to the position that in an appeal from an interlocutory injunction pendente lite, on an ex parte affidavit made on information and belief as to one material matter, and involving in other respects material matter of record, of which it cannot, by the nature of things, be the best evidence,—we should, by holding untrue the sworn statement of the complainant’s bill that he brings the bill in behalf “of himself and all other residents, cit-zens and taxpayers” of the municipality similarly situated, practically finally decide the litigation on contested questions of fact.

The interlocutory injunction seems to us to have been properly allowed, and the order of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice F. A. Smith

text:
    The German-American Savings Loan & Building Ass’n et al., Defendants in Error, v. Joseph Schlenker et al., Plaintiffs in Error.
    Gen. No. 16,826.
    Appeals and errors—effect of disclaimer. A decree will be affirmed as to a party who repudiates the only instrument from which he could acquire title or interest in the subject-matter of the litigation where such decree imposed no burden or charges of costs upon him.
    Foreclosure. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.

      Matthew J. Huss, for plaintiffs in error.
    W. J. Lavery and Charles B. Stafford, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The German-Ameriean Savings Loan & Building Association and Henry C. Bartling, liquidator thereof, as complainants,.filed a bill in the Circuit Court of Cook county against Joseph Schlenker and Louise Schlenker, his wife, as makers of a trust deed, Ernst Ammon as trustee, Alexander Klappenbach, as successor in trust, Andreas Decker as grantee of Joseph Schlenker, and Mrs. Andreas Decker as wife of Andreas Decker.

All the defendants except Andreas Decker and wife were defaulted for want of answer, while the Deckers by their answer filed put in issue all the material allegations in the bill of complaint.

The case was referred to a master, who reported his findings of fact. The defendants Decker interposed their objections to the report, which were overruled by the master, and by- order of the circuit court the objections were allowed to stand as exceptions in court. The court overruled the exceptions and entered a decree in conformity with the master’s findings in favor of the complainant. To reverse the decree the defendants Decker sued out of this court a writ of error.

The German-Ameriean Savings Loan & Building Association was incorporated in 1889 under the Building & Loan Association Act, and was doing business under its charter until about September 8, 1902, at which time the Association went into voluntary liquidation in conformity with the statute of this state. Henry C. Bartling was appointed its liquidator, and has been acting as such from the time of his appointment.

It appears from the record that the defendant, Andreas Decker, testified that he never obtained a deed for the property in question of Joseph Schlenker, nor did he instruct Joseph Schlenker to make him a deed. ■ He says he was in Germany when Schlenker made the deed; the deed was never. delivered to him; that he never knew anything about the clause in the deed, namely, “subject to a certain trust deed of $4,400.00 made and given July 18th, 1896, by said Joseph Schlenker and Louise his wife to Ernst Ammon, which the party of the first part assumes and agrees to pay,” for he was in Germany at that time; he never collected any rent from the property, and did nothing in reference to the property after the date of this deed; he did not receive any deed from Schlenker when in Germany; that he returned from Germany in 1901, and never had any talk with Schlenker when he returned; when in Germany he received a letter from Bartling, which he sent back to his brother-in-law. On the back of the letter he wrote that he should tell Mr. Schlenker that he had nothing to do with the letter. Schlenker never sent him any paper of any sort at any time giving him any interest or claim against the property mentioned in the mortgage, nor did Schlenker to his knowledge give any paper to any person at any time.

-The court entered a decree which, after finding the amount due upon the Building Association loan, orders that if the defendants or some of them do not pay to the complainant, the German-Ameriean Savings, Loan- and Building Association, within three days from the date of the decree, the sum of $5,611.41-, with lawful interest thereon from October 1, 1909, until paid, and also the costs of the suit, including $100, solicitor’s fees, and the master’s fees on the reference, taxed at $66, the premises should be sold.

It seems unnecessary for this court to consider and discuss in this opinion any of the questions assigned for error and urged in Decker’s brief. The only plaintiff in error, Decker, in his answer to the bill, sets up no claim or title to the property, and in his testimony disavows and disclaims all interest therein. He distinctly repudiates the deed from which alone, he could acquire title or interest. The decree complained of imposes no burden or act of omission or commission upon him and charges him with no costs. In Gage v. Dupuy, 134 Ill. 132, it is said:

“It follows necessarily that plaintiff in error, not having set up in his answer any claim of interest in or title to the premises in controversy, cannot be prejudicially affected by the decree. Having no interest to be cut off or affected by the decree, he is in no position to complain. It has béen so repeatedly held in chancery as well as in common law proceedings that a party cannot complain of error that does not affect him, that citation of authority is unnecessary.”

Counsel for plaintiff in error nowhere set up or claimed in their brief any title, or what title or interest Decker has or claims, and while he relies upon a number of particular errors set forth in his brief and enumerates them and discusses them, he nowhere suggests a single decision of any court in support of any position he takes, nor a possible point of contact or relativity between any error urged and any right or interest of the plaintiff in error.

Inasmuch as the plaintiffs in error show no interest in their answer and disclaim all interest in the testimony offered in support of their answer, they cannot now he permitted to prosecute this writ of error and seek a reversal of the decree. It is immaterial to. them whether the decree is perfect or erroneous, and we must decline to discuss any of the questions raised at the instance of parties who are in no wise interested in or affected by such questions.

The decree of the circuit court is affirmed.

Affirmed.


text:
    William H. Chadwick, Plaintiff in Error, v. Morris & Company, Defendant in Error.
    Gen. No. 16,853.
    1. Instructions—when peremptory should not be given. A peremptory instruction should not be given where there is any evidence which, with all reasonable inferences and intendments to be drawn therefrom, fairly tends to prove the plaintiff’s case.
    2. Contracts—what does not establish contract of employment for definite period. “I told him that the least I would go for was fifteen hundred a year and he said ‘all right,’ ” does not establish a hiring for a year.
    3. Statute of frauds—when contract within. A contract of employment not to be fully performed within a year is within the Statute of Frauds.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Uourt at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    William H. Chadwick, plaintiff in error, pro se; Charles S. Knudson of counsel.
    West & Eckhart, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the municipal court against William H. Chadwick, plaintiff in error, who sued Morris & Company, defendant in error, to recover the balance of a yearly salary of $1,500. The plaintiff claimed that he had been discharged by the defendant without fault on his part. The trial court instructed the jury for the defendant, and entered judgment on the verdict.

We recognize the law to be as contended by plaintiff that a peremptory instruction should not be given where there is any evidence, which, with all reasonable inferences and intendments to tie drawn from it, fairly tends to prove plaintiff’s case. (Libby, McNeill & Libby v. Cook, 222 Ill. 206; Clark v. C. R. I. & P. R. R., 231 id. 549; Waschow v. Kelly Coal Co., 245 id. 516.) But the difficulty with plaintiff’s case is that in our opinion the evidence of the plaintiff does not tend to prove a yearly employment. We do not think plaintiff’s testimony tends to prove a definite hiring for a year at $1,500 or that the contract was so understood Toy both parties. The plaintiff testified: “I told him (Borders) that the least I would go for was fifteen hundred a year; and he said ‘all right’.” This can in no way be construed into a definite hiring for one year. (Bunnel v. Rosenberg, 126 Ill. App. 196; Pfund v; Zimmermann, 29 Ill. 269.) The evidence shows that the minds of the parties met only as to the amount or rate of compensatiqn.

The term of employment was at will, and if the defendant was in good faith dissatisfied with the plaintiff and his work it had the right to discharge the plaintiff even though its dissatisfaction was not founded in reason. (Alexis Stoneware Mfg. Co. v. Young, 59 Ill. App. 226; Gray v. Wulff, 68 id. 376; Griffin v. Domas, 22 id. 203.)

If the testimony can be considered as showing a meeting of the minds of the parties on the question of a yearly employment and that the contract was one to employ the plaintiff for a certain definite time, the proof carries the contract within the statute of frauds'. The conversation occurred on September second. The plaintiff told Borders that he would like to have ten days to close up his work, meaning his legal practice. Plaintiff was placed on the pay-roll September 8th when,he began his services. No written contract or memorandum was shown. This brings the contract within the statute. (Haynes v. Mason, 30 Ill. App.. 85.)

The judgment is without error and is affirmed.

Affirmed.


text:
    People of the State of Illinois, Defendant in Error, v. Robert Hummel, Plaintiff in Error.
    Gen. No. 16,867.

      Assault—when judgment of conviction sufficient. A judgment of conviction in a prosecution for assault with a' deadly weapon, etc., is sufficient notwithstanding it does not find or state that the assault was made where no considerable provocation appeared, or under cireumstances showing an abandoned and malignant heart.
    Error to the Municipal Court of Chicago; the Hon. Hugh B. Stewabt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    J. Gray Lucas, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An information was filed in the municipal court of Chicago, charging the plaintiff in error with assault with.a deadly weapon with intent to do bodily injury, etc. A jury was waived by the plaintiff in error, and the court on the trial found the plaintiff in error guilty and pronounced sentence upon him. It is sought by this writ of error to reverse the judgment, (1) for insufficiency of the jury waiver; and (2) because there is no valid and sufficient judgment.

There is no bill of exceptions preserving the evidence in the record. No motion for new trial, or in arrest óf judgment, or to set aside the judgment was made.

In our opinion the instrument waiving the right to a trial by jury is in due form, and having" been filed in the cause is in full compliance with the statute.

The information is in one count, and is conceded to be sufficient. It charges the offense in the language of the statute. The contention is that the judgment is insufficient because it does not find or state that the assault was made where no considerable provocation appeared, or under circumstances showing an abandoned and malignant heart.

In our opinion the judgment is sufficient. In People v. Murphy, 188 Ill. 140, the sentence does not mention murder or other crime, and it was held to be a good judgment, the court saying at page 148: “It is, however, well settled ' that all parts of the record are to be interpreted together, effect being given to all, if possible, and a deficiency at one place may be supplied by what appears in another. ’ I Bishop on Grim. Proc. Secs. 1347, 1348.”

In Pointer v. United States, 151 U. S. 396, cited in the above case, the court held the objection here made to be technical rather than substantial, and that the record showed everything necessary to justify the punishment inflicted. This is true in this case.

The judgment is affirmed.

Affirmed.


text:
    Jane C. Vansant et al., Appellees, v. Alvida A. Rose, Appellant.
    Gen. No. 18,468.
    1. Injunctions—what ordinarily prerequisite to issuance. As .a general rule a writ of injunction will issue only where there is an unquestionable right and irreparable injury will be suffered and there is no adequate remedy at law, but this rule is not applicable to eases where an injunction is sought to enforce the performance of express negative covenants by prohibiting their breach.
    2. Easements—what not essential to enforcement. It is no.t necessary that the right preserved or the restriction imposed be an easement appurtenant to other land, though that situation frequently occurs, and such easements are protected, but in Illinois the right to enforce the contract made by the covenants of the deed does not depend upon whether there is a dominant estate. Eights in gross w.ill be protected in equity and an injunction will be granted without reference to any injury to the complainants.
    Appeal from the Circuit Court of Cook County, the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed April 19, 1912.
    Lee & Lee, for appellant; Albert M. Kales, of counsel.
    Hollett, Sauter & Henkel and Wilson, Moore & McIlvaine, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal from an interlocutory order granting an injunction to restrain appellant upon a bill supported by affidavits from a breach of covenants or restrictions in a deed through which she acquired title.

John C. Vansant, Marcellus E. McDowell and the Guaranty Trust and Savings Deposit Company as executors and trustees under the last will and testament of Marcellus E. McDowell, deceased, filed a bill in the Circuit Court of Cook county against Alvida A. Rose, appellant, to enjoin the defendant from erecting a flat building at the southwest corner of Kenmore and Glen Lake avenues in Edgewater, and from placing the flat building on the lot lines of the premises, in alleged violation of a covenant in the deed of conveyance from appellees, the complainants in the bill, to defendant’s grantor. The court granted an injunction pendente lite on the giving of a bond by appellees in the sum of $5,000.

From the averments of the bill it appears that December 16, 1904, appellees were the owners of the twc lots, now owned by appellant, at the southwest corner of Kenmore and Cien Lake avenues. On that day appellees conveyed to appellant’s husband, Frank A. Rose, the two lots by a deed containing the following restrictive covenants:

“It is hereby expressly covenanted and agreed that neither said party of the second part nor his heirs, executors, administrators, or assigns shall erect any fence, enclosure or obstruction to view on said lots within thirty (30) feet of the front or side street line of said lots for a period of ten years from the date hereof, and shall not build any wall of any building erected on said lots within said thirty feet of the front or side street line of said lots for a period of twenty years from the date hereof without the written consent of said parties of the first part * * * It is hereby expressly covenanted and agreed that neither said party of the second part nor his heirs, executors, administrators or assigns shall build or cause to be built on said lots any building known as a flat or. a tenement building, hereby covenanting to erect there-* on only a single private dwelling house (excepting the stable as aforesaid), for a period of twenty years from this date.”

This deed was duly recorded and subsequently the title of Frank A. Rose passed to his wife, the appellant, by conveyances. It is the breach of the above covenants in the deed from appellees to Frank A. Rose that appellees seek to enjoin.

• The bill nowhere alleges that the complainants own any land in the vicinity of the land conveyed to Frank A. Rose with the restrictions above set forth, nor is there any averment in the bill that appellees now own any land in Edgewater or the city of Chicago or elsewhere which would be affected in the slightest degree by the enforcement or breach of the covenant in question. Appellees rely simply and solely upon the fact that they' are the promisees in the covenants of the grantee Frank A. Rose in the above deed, and in legal effect say that they are entitled to enforce that contract specifically in equity solely on the- ground that they are parties to it, and that it makes no' difference whatever that they own no real estate in the vicinity which will he affected in any way by the enforcement or the violation of the covenants.

Appellant contends that the bill is fatally defective because it does not show that complainants have any right to the beneficial interest in the land affected by the covenants, or in adjoining lands, which will confer upon complainants a property interest in the enforcement of the covenants, and cite in suport of her contention High on Injunctions, 4th Ed., Vol. 11, page 1137; Los Angeles University v. Swarth, 46 C. C. A. 647, 307 Fed. 798; Graves v. Deterling, 120 N. Y. 447; Rector v. Rector, 114 N. Y. Supp. 623; and Dana v. Wentworth, 111 Mass. 291.

In support of this contention and under the above authorities it is urged by appellant that the law is that a complainant has no standing to file a bill to enforce a restrictive covenant as to the use of land, unless he has a right or beneficial interest in the land affected by the covenant, or in adjoining land which will I confer upon the complainant a property interest in theJ enforcement of the covenant.

On the other hand, it is contended by appellees that the covenants above set forth in the deed constitute a •valid, legal contract, and that its obligatory force is co-extensive with its terms and stipulations; and the theories upon which they predicate the right to the injunction granted by the court are as follows:

First, the theory of a mere negative covenant sustained by adequate consideration, just and reasonable in itself, and without ambiguity, its nature being such that it can be enforced only by injunction;

Second, the theory of a reserved -right or interest in the property conveyed, that is to say, the grantors owning the property in fee conveyed it subject to restrictions which are in the nature of encumbrances pro tanto, the purchaser acquiring only a part of the property and the vendor remaining the owner of the rest. The interest thus reserved may be large or small, but, if it is a right in or over the premises in question it is property; the covenant is a property right which the grantor reserves. This theory admits the application of a rule, which seems to embarrass some courts, that such a covenant is in the nature of an easement and must inhere in reserved property to be enforced; and,

The third theory is that the purchaser, having acquired the property at a low price by reason of the restrictions, has received, if the- restrictions are not binding, property of the vendor which he ought not to retain., except- on the terms of the -conveyance; so the denial of a remedy is taking a vendor ’s property without compensation.

In support of this bill appellees cite Hayes v. St. Paul M. E. Church, 196 Ill. 633. At page 635 of the opinion it is said:

“It is not denied that the purchase from John A. King, and the acceptance of the conveyance subject to the provision contained in it, created a valid personal obligation to him. An owner has a right to sell his property upon -such terms and conditions as he may see proper, and if the terms are accepted by the grantee, and are not" objectionable in law, they will be enforced at the suit of the one in whom the right is vested. (Frye v. Partridge, 82 Ill. 267.) If a subsequent owner has taken title with notice, either actual or constructive, of a binding agreement between his grantor and the original owner establishing a building restriction, he will be bound to abide by it and equity will enforce it. In this case there is no dispute that the defendant had notice of the building restriction from the recorded conveyance to the First Methodist Episcopal Church, and if it was imposed in favor of complainant’s house and lot, and for the benefit of the same, complainant would have a right to enforce it. The question is whether by the agreement between King and his grantee, this lot was burdened with the restriction for the benefit of the complainant’s lot, so that she can enforce the agreement. The restriction was imposed by John A. King and the agreement was with him. Complainant was a stranger to that transaction and there is no covenant or agreement between her and the defendant or its grantor. Her right to enforce the agreement must depend upon her making it appear that it was entered into for the benefit of her lot. In making his conveyance John A. King had a legal right to impose the condition from any motive, and it is immaterial what the motive was, and he could impose it in favor of property which he did not own and which belonged to complainant, if he saw fit to do so. When he executed his deed he did not own any other property in the block or in that vicinity. He did not own the lot or house south of the premises which he conveyed, and had no interest in either. * * * The defendant took the premises bound by the agreement, and can be. restrained from violating it at the suit of any one having the interest.”

In that case the court was dealing solely with the right of one not a party to the contract to enforce it. The opinion appears to concede that if the father of the complainant, namely the grantor, had filed a bill, his standing in equity as a party to the contract which created the personal obligation to him, could not be questioned.

One of the most pertinent decisions of the Supreme Court of this state to the question under consideration, was rendered in Wakefield v. Van Tassel, 202 Ill. 41. It was an action in ejectment to recover propertunder a condition contained in the deed. The effect of the condition is stated at page 44 of the opinion as follows:

“The condition as expressed in the deed is plain and unambiguous and needs not the aid of a court to construe its meaning. Parties háve a right to make deeds and insert therein such conditions as they see fit, and contracts entered into freely and voluntarily must be held sacred, and be enforced by the courts. As the parties make their deeds and contracts so the courts must take them; and yet they must not be such contracts as are in contravention of the paramount principle of public good. So long as the beneficial enjoyment of an estate conveyed in fee simple is not materially impaired by restrictions and conditions contained in a deed, such restrictions and conditions as to the mode of its use, are held valid. The enforcement of these conditions by the courts arises from a principle of law that every owner of the fee has the legal right to dispose of his estate either absolutely ór conditionally, or to regulate the manner in which the estate shall be used and occupied, as the grantor may deem best and proper. Just so long as the conditions and restrictions are not violative of the public good or subversive of the public interests they will be enforced.”

It is to be conceded that the general rule is that a writ of injunction will issue only where there is an unquestionable right and irreparable injury will be suffered and there is no adequate .remedy at law, but this rule is not applicable to cases of this kind for courts of equity interpose by injunction and thereby indirectly enforce the performance of express negative covenants by prohibiting their breach, regardless of whether there is a remedy at law, or whether their violation will occasion any substantial injury. Andrews v. Kingsbury, 212 Ill. 97. And it has been held by the courts of this jurisdiction that a grantor may convey to his grantee upon such terms and with such restrictions as he sees fit. By accepting the deed containing the restrictions a valid contract is consummated which is enforceable against the grantee and his successors, in title and equity will enjoin the breach. Frye v. Partridge, supra; McDougall v. Burrowrs, 154 Ill. App. 375; Wakefield v. Van Tassel, supra.

It is not necessary that the right preserved or the restriction imposed be an easement appurtenant to other land, though that situation frequently occurs, and : such easements are protected, but in Illinois the right to enforce the contract made by the covenants of the deed does not depend upon whether there is a dominant estate. Bights in gross will be protected in equity. Frye v. Partridge, supra; Willoughby v. Lawrence, 116 Ill. 11; Wakefield v. Van Tassel, supra; Eckhart v. Irons, 128 Ill. 568.

In our opinion the negative covenants in the deed to Bose subjected the lots in question to a lien in the nature of an easement in gross or a personal servitude. When the property was transferred to his wife, appellant,- she had notice of the servitude, knew that complainants had not conveyed the entire estate to her husband, and that complainants had restricted the use of the lots and reserved in themselves certain rights or interests therein. She therefore took the lots bound by the covenants, and in our opinion may be restrained from violating the covenants. Wien Bose accepted the deed from complainants he did not acquire absolute and unqualified dominion over the lots. On the contrary it was part of the title which he accepted that he should be limited and restricted in the use of the lots, in important particulars, and such restrictions partake of the nature of an encumbrance upon the lots.

In Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, there was involved a covenant in a conveyance of coal underlying certain lands, and leasing certain portions of the land for access to the coal. The instrument contained specific restrictions as to the use of the property. The action was brought by the vendor, and it may be observed parenthetically that while the complainant had other lands the bill was not filed for their protection; it was filed to restrain the use of the land actually leased for mining and removing coal produced on other lands derived from other parties. There was no question of an easement nor of injury to the remainder of the property involved. It was a case like the case at bar of an injunction sought by the vendor to compel a compliance with covenants made by the vendee. At page 378 the court said:

“It seems to be well settled that while there is an express negative covenant, courts of equity will entertain bills for injunction to prevent their breach, although the same will occasion no substantial injury, or though the damages, if any, be recoverable at law. This is upon the principle that the owner of land selling or leasing it, may insert in his deed of contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land. As said in Stewart v. Winters, 4 Sandf. Ch. 587: ‘He is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury himself, and the party contracting with him must abide by the definition. ’ * * * In this latter class of dases the court proceeds upon the glound that the grantor or lessor having expressly stipulated that the grantee or lessee shall not do the particular thing complained of, the latter is° bound to refrain, and the former is not required to submit to the opinions of others as to whether he will or will not suffer substantial injury.”

To the same effect are, Star Brewing Co. v. Primas, 163 Ill. 652; Hutchinson v. Ulrich, 145 Ill. 336; Anheuser-Busch Brewing Association v. Dwyer, 150 Ill. App. 315; Southern Fire Brick Co. v. Sand Co., 223 Ill. 616; High on Injunctions, 2d Ed. Sec. 1153; Pomeroy’s Equity Jurisprudence, 3d Ed. Secs. 1541, 1542.

In Kerr on Injunctions, 4th Ed. 370, the learned author says:

“In restraining by injunction the breach of a negative covenant the interference of the court is in effect an order for specific performance. * * * ‘If there is a negative covenant,’ said Lord Cairns in Dohert v. Allen, ‘the court has no discretion to exercise. If parties for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity is to do is to say by way of injunction that the thing shall not be done. In such case, the injunction does nothing more than giye the sanction of the process of the court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damages or injury, it is the specific performance by the court of that negative bargain which the parties have made, with their eyes open, between themselves. ’ ”

On page 357 the same author says:

“In all cases where a specific performance can be decreed, the jurisdiction by injunction will attach as a matter of course, but it is not confined to such cases, but will be exercised in all cases when it can operate to bind men’s consciences as far as they can be bound to a true and literal performance of their agreements.”

To the above cases may be added, Lewis v. Collner, N. Y. Court of Appeals, 29 N. E. 81; Tuck v. Moxhay, 1 Hall and Tw. 105; Haines v. Einwachter, 55 Atl. Rep. (N. J. 38); Bayard v. Bancroft, 62 Atl. Rep. 6; McClure v. Otrich, 118 Ill. 320; Fowler v. Fowler, 204 Ill. 82.

In view of the foregoing authorities of this state we do not deem it necessary to review the cases in other jurisdictions cited on behalf of appellant, nor do we deem it necessary to discuss the applicability of the cases in detail to the question here involved. We must be governed by the authorities of this state, and we think they uphold clearly that the contract contained in the deed by which appellees conveyed the property was a valid binding contract, not only upon the grantee in the deed, but upon his heirs and assigns, and that the remedy for a violation of the restrictive covenants is by injunction even though a recovery at law might be sustained. But where, as in this case, there can be no adequate recovery at law, the remedy is clearly by injunction. In our opinion, the authorities further sustain the proposition that an injunction will be granted without reference to any injury to the complainants, and that it will be granted although there is no easement in favor of adjacent property to protect and no injury proved, and whether complainants own property in the immediate neighborhood or not which would be injuriously affected by a violation of the restrictive conditions contained in the deed.

We are of the opinion, therefore, that the order granting the injunction upon the bill and affidavits was proper, and it is affirmed.

Affirmed.


author: Mr. Justice Clark

text:
    Louisa County Savings Bank, Appellee, v. John Claney et al., Appellants.
    Gen. No. 18,246.
    Appeals and errors—how joint prayer for appeal must he perfected. If an appeal be jointly prayed it must be jointly perfected. A several appeal cannot be predicated upon a joint prayer and an irregularity in perfecting such an appeal cannot be corrected in the Appellate Court.
    Appeal from the Municipal Court of Chicago; the Hon. J. C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Appeal dismissed.
    Opinion filed March 26, 1912.
    W. O. Robinson, for appellants.
    Jeffry & Campbell, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

In this case a joint appeal was prayed for by John Claney and W. P. Dickinson. The bond, however, required to be filed was made by John Claney alone as principal. A motion is made by appellee to dismiss the appeal on this ground. A counter motion is made by Claney and Dickinson, as appellants, for leave to file another bond which shall comply with the statute.

The cross motion cannot be entertained, and the motion to dismiss must be allowed, under the authority of Ellison v. Hammond et al., 189 Ill. 470. An order will be entered dismissing the appeal.

Appeal dismissed.


text:
    Mary A. Lavender, Appellee, v. Edward B. Crawford, Appellant.
    Gen. No. 16,902.

      Liens—statute providing, in favor of attorneys construed. After a confession of errors by the appellee and a motion to reverse by the appellant, the Appellate Court has no power other than to reverse irrespective of the fact that the attorney for the appellee may have had an assignment of an interest in the judgment involved.
    Appeal from the Circuit Court of Cook County; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and dismissed.
    Opinion filed April 10, 1912.
    Benson Landon and Robert N. Holt, for appellant.
    Seth F. Crews and George F. Ort, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

A motion is made in this case by the appellee to reverse the judgment and dismiss the case, upon the confession of error filed by her. The motion is resisted by the attorneys for appellee, who claim a lien upon the judgment recovered in the Circuit Court. The judgment in that court, from which an appeal was taken, was for the sum of $4,000, the suit being an action on the case for slander.

The attorneys for appellee had a contract with her, in and by which one of the attorneys was to receive one third and the other one sixth of the amount recovered. After the appeal was perfected to this court appellee desired to surrender her rights under the judgment and dismiss the case. Her attorneys objected, and she afterwards entered a remittitur in this court of $2,000, apparently with the understanding that what was left of the judgment if the case should be affirmed should belong to the attorneys.

The appellee’s attorneys served notice upon the attorneys for appellant of their claim for lien, which is based upon a statute enacted in 1909, being section 55, chapter 82, Revised Statutes of 1909. By that statute attorneys at law are given a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, fo.r the amount of any fee which may have been agreed upon, or in the absence of agreement, for a reasonable fee. The act provides that the lien shall attach to any verdict, judgment or decree entered; that upon petition filed by such attorneys or their clients, any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien, etc.

The matter is brought be-1 re us on affidavits and counter affidavits. The ques' n is whether the appellee may now control the case ' I confess error and dismiss the cause, notwithstan g the claim interposed by her attorneys.

In Lesher v. Lesher, 250 Ill. 582, the Supreme Court of this state had before it ; ,ase wherein an appeal had heen taken to the Appellate Court from an order dismissing a bill for a separate maintenance, brought by appellant against the appellee, the lower court having found that no marriage existed between the parties. Appellee filed a confession of error, after which a motion to reverse was entered. The Appellate Court, however, refused to reverse, for the reason that to do so would, as shown by the record, injuriously affect third parties claiming title to lands which had been conveyed to them by the appellee as a bachelor, and for the further reason that these parties had agreed with appellee to pay the costs of resisting the appeal. The third parties referred to appeared by their attorney as amicus curiae. The decision of the Appellate Court was reversed by the Supreme Court, which used the following language:

“Courts will not occupy themselves with moot cases and cases which do not involve the establishment of a right which may be the subject of controversy between the parties. Here the plaintiff in error alleged the decree to be erroneous and the defendant in error confessed it. The plaintiff in error was entitled to judgment on the pleadings, and the Appellate Court had no other duty to perform than to enter the judgment required by law, reversing the decree and remanding the cause.”

It will be noted that by the statute no assignment of the judgment is made, but merely a lien created. In North Chicago St. R. R. Co. v. Ackley, 171 Ill. 100, it was held that any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreements foster and encourage litigation. The case last referred to was decided before the statute of 1909 was enacted.

The courts of New York and Tennessee have had occasion to pass upon the question. In Moorehouse v. Brooklyn Heights Railroad Co., 89 N. Y. Supp. 232, it is said:

“An attorney for the plaintiff formerly had a lien on the judgment only, but now he is given by a statute a Ken on, the cause of action itself. Code Civ. Proc. Sec. 66. But his Ken whether on the cause of action or on the judgment is necessarily subject to his client’s right to settle. The right of a client to settle always was, and it is, absolute. He cannot be compelled to go on with the action by his attorney; and if he obtain a judgment and the judgment debtor be insolvent, or if there be an appeal, he has the right to settle. He can no more be compelled by his attorney to take the risk of an appeal than to take the risk of a trial. In a word, and to repeat, the lien of an attorney, whether on the cause of action or on the judgment, is subject to the absolute right of the client to settle, and the attorney can not go on with the action after it is settled, unless the settlement be collusive and fraudulent against the attorney, in which case he will be permitted to prosecute the action to judgment in order to foreclose his Ken, if that course be necessary to frustrate the fraud, for in the case of fraud all ordinary rules give way. It is useless to pick phrases out of opinions on the subject. The matter is too plain for argument. The lawyer is not the principal and the cKent his subject or subordinate, but the reverse is the case. The litigation of this state has not been turned over to our profession as common barrators and strife-makers. Lawyers are subject to the instructions and wishes of their clients. Forgetfulness of this one thing has caused much confusion.”

The case was affirmed by the Appellate Division in 102 App. Div. 627.

In Tompkins v. N. C. & St. L. Ry. Co., 110 Tenn. 157, it was held that a statute giving attorneys a Ken on the cause of action for their fees in suits instituted by them, does not deprive the plaintiff of the right to dismiss the suit against their will, or entitle them to be made parties with the right to prosecute the action to protect their own interests.

In the case before us, the appellee having filed a confession of error, and having made a motion to dismiss the case, it would seem, in the language of the court in Lesher v. Lesher, supra, that this court has no other duty to perform than to reverse the judgment and dismiss the case, which will accordingly be done. The order entered herein on March 16, 1912, denying a similar motion will be set aside.

Motion of appellee to reverse the judgment and dismiss the case allowed.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas England, Jr., Plaintiff in Error.
    Gen. No. 16,390.
    1. Municipal Court—when preliminaries essential to filing information waived. By appearing and submitting to trial any preliminaries essential to the proper filing of an information are waived.
    2. Municipal Court-—when defects in information are waived. A defendant waives defects in an information by failing to make a motion to quash.
    3. Municipal Court—when has jurisdiction of criminal offense. The Municipal Court has jurisdiction of the offense of pandering, the same being punishable by either fine or imprisonment in the county jail or both.
    Error to the Municipal Court of Chicago; the Hon. Hugh R Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    W. G. Anderson, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Otto B. Schram, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error, Thomas England, Jr., was convicted of pandering. A jury was waived and the court found him guilty of the charge and imposed upon him a fine of $600, with confinement in the county jail for one year.

The first point urged for reversal by the plaintiff in error is that section 27 of the Municipal Court Act was not complied with; that as the information was presented by a person other than the attorney general or state’s attorney, it was necessary that one of the judges of the Municipal Court examine the information and examine the person presenting the same, and require other evidence, and satisfy himself that there was probable cause for filing the same. This point was undoubtedly waived by the defendant by his appearance and the submission of his case to trial by the court without a jury. The record shows also that the information was presented to a judge of the court, and on a motion made that leave be granted to file it, that the judge examined the information and the person presenting the same, and heard evidence thereon; that he became satisfied that there was probable cause for filing the same, and so endorsed it. The statute, we think, was complied with.

The second point is that the information charged no offense and that it was repugnant to and at variance with the finding of the court. The information alleges that the plaintiff in error did “procure, persuade and encourage a female inmate, to-wit Marie Thiel, for a house of prostitution.” The language of the statute is “who shall procure a female inmate for a house of prostitution.” No motion to quash the information was made, and if it be admitted that the information was defective, it did not affect the real merits of the offense. Section 9, Division XI of the Criminal Code (Chapter 38), provides that all exceptions which go merely to the form of an indictment shall be made before trial, and no motion for arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the indictment. We see no reason to reverse the finding of the court for the alleged error in the information. Bruen v. People, 206 Ill. 417; McKevitt v. People, 208 Ill. 460.

The third ground urged upon us for a reversal of the case is that the Municipal Court did not have jurisdiction. In The People v. Glowacki, 236 Ill. 612, after discussing the constitutional question at considerable length, the. court held that the Municipal Court of Chicago has jurisdiction to try, on information, all violations of criminal laws punishable by fine or by imprisonment otherwise than in the penitentiary, or by both fine and such imprisonment. If the offense is one that tnay be punished either by fine or by imprisonment in the penitentiary, or both by fine and imprisonment in the penitentiary, then it can only be prosecuted under an indictment. The act making pandering an offense provides for either a fine or imprisonment in.the county jail, or both. It does not provide for imprisonment in the penitentiary. The Municipal Court undoubtedly had jurisdiction, and the judgment of conviction must be affirmed.

Affirmed.