text:
    Eugene Norton, Coroner, Defendant in Error, v. Herman Deuchler and T. J. Turney, Plaintiffs in Error.
    Gen. No. 5,987.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Replevin, § 106

      —when burden of proof on defendant in ao Hon on bond. In an action on- a replevin bond given in a suit which was dismissed by the plaintiff in replevin, the burden is on the defendant to show property in himself in mitigation of damages.

      Error to the City Court of Aurora; the Hon. Edwabd M. Manqan, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Statement of the Case.
    Action by Eugene Norton, coroner of Kane County for use of C. T. McBriarty, sheriff of Kane county, against Herman Deuchler and T. J. Turney on a bond given in a replevin suit.
    In a replevin suit brought by defendant Deuchler for certain property on which he held a chattel mortgage securing a note for $600, he and the defendant Turney gave the bond in question. The defendants defended under the Replevin Act, sec. 26 (J. & A. ¶ 9211), and to prove title introduced a certified copy of the chattel mortgage. Plaintiff had verdict and judgment for $1,200 debt and $272.50 damages.
    To reverse this judgment, defendant prosecutes this writ of error.
    Fred B. Shearer, for plaintiffs in error; Raymond & Newhall, of counsel.
    Charles H. Darling, for defendant in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Replevin, § 124 —when evidence offered insufficient to establish title in action on bond. Defendant in an action on a replevin bond, given in a replevin suit which he had voluntarily dismissed, sought to establish his title to the property by introducing a certified copy of a chattel mortgage which described a note secured thereby, giving its date, amount and stated that it was payable to defendant and that it was signed by the mortgagor, and gave the date of its maturity. There was no offer to show an indebtedness from the mortgagor to defendant nor any other offer to show the contents of the note than that contained in the copy of the mortgage. The only excuse for failure to produce the note was defendant’s evidence that he was unable to find it, though he had made a careful search for it. It was held that even though the proof of loss of the mortgage was sufficient under the Mortgage Act, sec. 5 (J. & A. IT 7580), it was not sufficient as a ground for secondary evidence of the contents of the note and there was no sufficient offer to prove their contents, and that the evidence offered was not sufficient to show title in defendant.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    S. A. Wright and E. P. Fleming, partners as Wright & Fleming, Appellees, v. Elsie Olson, Appellant.
    Gen. No. 5,996.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Statement of the Case.
    Action by S. A. Wright and E. P. Fleming, partners . as Wright & Fleming, against Elsie Olson to recover commissions on the sale of real estate.
    Plaintiffs claimed that the defendant agreed to pay a commission of one dollar per acre if they would sell her farm of one hundred and sixty acres at two hundred dollars an acre. Defendant denied that she had authorized them. The evidence showed that one of the plaintiffs spent much time in an effort to sell the farm, that he procured the purchaser who purchased at the agreed price.
    Abstract of the Decision.
    1. Brokers, § 93

      —when finding of fury on conflicting evidence not disturbed. In an action to recover commissions on the sale of land, where the evidence is directly conflicting as to whether or not plaintiff was authorized to make the sale, defendant also claiming that she supposed that he was acting as the purchaser’s agent, hut the evidence showing that he was not acting for the purchaser, the finding of the jury will not he disturbed.
    2. Brokers, § 85*—when testimony as to listing of land for sale admissible in action for commissions. In an action by a real estate broker to recover commissions on a sale of land alleged to have been made by agreement with the owner, evidence of plaintiff that he had listed the land on his books is admissible.
    3. Appear and error, § 1533*—when use of ordinary term in instruction not error. In an action to recover commissions on a sale of real estate claimed to have been made by plaintiff for defendant, it is not error, in an instruction to use the word “listed” in the same sense that it had been frequently used in the testimony and as it is understood in ordinary conversation.
    There was a verdict and judgment for plaintiffs in the justice court for the full amount claimed, and from the judgment defendant appealed to the Circuit Court and, on affirmance by that court, takes this appeal.
    John E. Erwin, for appellant.
    Harry Edwards and C. F. Preston, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Louis F. Strawn, Appellee, v. Nicholas Vipond, Appellant.
    Gen. No. 6,003.
    (Not to be reported in full.)
    Abstract of the Decision.
    Equity, g 425

      —when master's -findings not disturbed on appeal. In a suit to annul a judgment by confession on a promissory note and to restrain the collection of the note, on the ground that the consideration for the note was losses of the maker at gambling at defendant’s gambling house, where evidence was conflicting and the master to whom the cause was referred found for the complainant, after hearing the witnesses, his conclusion that the weight of the testimony was in favor of complainant will not be disturbed, in the absence of a showing that he erred therein.

      Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Statement of the Case.
    Bill in equity by Louis F. Strawn against Nicholas Vipond to annul a judgment by confession on a promissory note given by complainant to defendant and to restrain the collection of the note on the ground that the only consideration therefor was losses at gambling at defendant’s saloon and gambling house.
    The cause was referred to a master in chancery to . take evidence and report his conclusions;
    The master found the allegations of the bill true and recommended a decree for complainant.
    Objections and exceptions were filed and overruled by the master and the chancellor, and a decree for complainant was entered in accordance with the master’s findings and recommendations.
    From the decree, defendant prosecutes this appeal.
    A. W. Allen and McDougall & Chapman, for appellant.
    Louis F. Strawn, pro se.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Dime Savings & Trust Company, Administrator, Appellee, v. Abraham Jacobson, Appellant.
    Gen. No. 5,888.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Rehearing granted and opinion filed January 6, 1915.
    Statement of the Case.
    Action by Dime Savings & Trust Company, administrator de bonis non of the estate of Harry Olin, deceased, against Abraham Jacobson, on the latter’s note for $500, payable to Olin, and on his check No. 7592 for $525, also payable to Olin.
    Plaintiff introduced said instruments in evidence and proved that it had received them from the former administrator and also that the check had been presented for payment to the bank on which drawn and payment refused for want of sufficient funds.
    The defense was payment, which as to the note was testified to by defendant’s sister and stenographer, who was present at a conversation between defendant and deceased, and as to the check, by a witness who was present at a conversation between defendant and deceased.

      Abstract of the Decision.
    1. Witnesses, § 94

      —when survivor not competent in action by administrator. In an action by an administrator to recover on a check and note given by defendant to plaintiff’s decedent, the defendant is not competent to testify as to the defense of payment.
    2. Payment, § 29*—when evidence sufficient to show payment. In an action by an administrator to recover on a check and note given by defendant to plaintiff’s decedent, where defendant pleads payment as a defense and introduces two witnesses, one of whom téstified that plaintiff’s decedent acknowledged in conversations with defendant in her presence that defendant had paid him the note but that he could not find it and would return it as soon as he could, the other testifying to a similar conversation as to the payment of the check, and also introduces three checks drawn by defendant to plaintiff’s decedent or order, one of which had written on it “balance in full payment” of the note in question, and the two of which were marked, respectively, “% check #7592” and “in full of check #7592,” there being no evidence that these words were not placed on the checks, before they were delivered, but one witness testifying that the statement on one check was placed on it before delivery. The date and number of check mentioned were the same as those of the check in suit. No evidence was introduced by plaintiff to overcome this evidence. It was held that the payment was established by a preponderance of the evidence.
    3. Instbuctions, §. 18*—when improper as to meaning of language. An instruction which submits to the jury the meaning of language which is plain and can have but one meaning is erroneous as intimating that the court is of opinion that the jury may rightfully place upon the language some other construction.
    The jury rendered a verdict for plaintiff for $1,176. Defendant’s motion for a new trial was denied, and plaintiff had judgment.
    From the judgment, defendant appeals.
    J. A. Cameron and J. A. Weil, for appellant.
    Kirk & Shurtleff, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of County of La Salle, Appellant, v. John L. Witzeman et al., Appellees.
    Gen. Nos. 5,924, 5,925.
    1. Courts, § 141

      —when statutes and decisions not binding on. Constitutional and statutory provisions regulating the salaries of clerks of courts of record for the performance of duties imposed upon them by the laws of the State and the construction placed hy the courts upon such provisions are not necessarily decisive of the rights of such clerks to fees for performance of duties imposed upon them by the Federal Naturalization Act.
    2. Aliens, § 13*—when Federal regulation of naturalization exclusive. U. S. Const, art. I, § 8, clause 4, gives Congress the power to establish uniform rules of naturalization, and this jurisdiction, when exercised, is exclusive and repeals former laws hy which the states naturalized citizens and fixed the fees and their application.
    3. United States, § 1*—when enforcement of Federal act not obligatory upon State court. Congress possesses no power to compel a State court to enforce the Federal Naturalization Act.
    4. United States, § 1*—when naturalization expenses not obligatory upon State or county. The State is not hound to pay for the clerical services required in the naturalization of aliens in State courts under the Federal Naturalization Act, nor is the county hoard hound to make the clerk any allowance for a clerical force or other expenses incidental to such proceedings.
    5. Aliens, § 13*—how expenses to be met. It is the purpose of the Federal Naturalization Act that the expenses of clerical assistance necessary to carry out the requirements of the act should, in the State courts, he met hy the fees fixed by the act and not borne hy the State.
    6. Clerks of court, § 14*—when entitled to fees fixed by Federal act for naturalization services. The county has no claim to fees collected hy its Circuit Court clerk for performing services and fixed in accordance with the Federal Naturalization Act, especially where the county has not provided or paid for any clerical assistance.
    Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stouqh, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.

      W. E. Redmon and W. I. Hibbs, for appellant.
    Duncan & O’Conor, for appellees.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

The county of LaSalle brought two actions of debt upon the official bonds of John L. Witzeman, its circuit clerk, -one upon the bond given for the official term beginning on the first Monday of December, A. D. 1904, and the other upon the official bond given for the term beginning the first Monday of December, A. D. 1908. The sureties on each bond were the same, so that all the parties to each case were the same. In each case a proper declaration was filed, alleging three breaches of the bond. The first and third breaches assigned bore no relation to the subject-matter of this opinion. They were afterwards dismissed. The second breach in each declaration charged that said circuit clerk had received, during the term of office covered by that bond, fees for the naturalization of aliens, and had not reported the receipt of said fees to the chairman of the * county board, and had not paid said fees to the county treasurer, but had converted said moneys to his own' use. Demurrers were filed and sustained to each of said second breaches. As the first bond took effect as of the first Monday of December, 1904, and the present Naturalization Act was not approved until June 29, 1906, and did not go into force until ninety days from its passage, there might have been naturalization fees received by this clerk under former and very different naturalization laws, under which the State fixed and controlled the fees for naturalization, and if such fees had not been duly accounted for, there might be a liability under this bond therefor; but counsel for both parties, in argument, have assumed that the only matter here litigated is the naturalization fees received by the clerk under said Federal Statute of 1906, and therefore we will confine our discussion to the meaning and effect of that act. After said demurrers were sustained there was a judgment for costs in each case, and an appeal therefrom to this court. We dismissed those appeals in People v. Witzman, 186 Ill. App. 216, because there were no final judgments in the record. Thereafter, final judgments were entered in the court below, and these appeals are prosecuted to this court. As the cases are the same except as to the period covered by the bond sued on, one opinion will dispose of both cases.

The Federal Act of June 29,1906, establishes a complete code for the naturalization of aliens, and practically annuls substantially all previous statutes upon that subject. It confers exclusive jurisdiction to naturalize aliens as citizens of the United States upon certain Federal courts, and upon all courts of record in any State or territory having a seal, a clerk and jurisdiction at law or equity in which the amount in controversy is unlimited, which in this State includes the Circuit Courts. Section 13 of said Act requires the clerk of each court exercising jurisdiction in naturalization cases to charge, collect and account for the fees therein specified. The fee for receiving and filing a declaration of intention to become a citizen, and issuing a duplicate thereof, is fixed at $1. The fee for making and filing and docketing the petition of an alien for admission as a citizen of the United States and for the final hearing thereon is fixed at $2, and the fee for entering the final order and the issuance of a certificate of citizenship thereunder is fixed at $2. The clerk is therein authorized to retain one-half of the fees collected by him in such naturalization proceedings, and to account for the remaining one-half in his quarterly accounts required to be rendered to a certain department of the Federal government, and he is required to pay over to that department, within thirty days after the close of each quarter of each year, the one-half of the fees so received, and that sum is required to be deposited in the treasury of the United States. The petitioner for naturalization is also required to pay to the clerk a sum sufficient to cover the expenses of subpoenaing and paying the legal fees of any witnesses for whom the petitioner may request a slipcena, and when the proceeding for naturalization is ended the clerk is required to pay the witness’ fees from such sum, and return the residue, if any, to the petitioner. It is also provided that when the one-half which the clerk is permitted to retain shall reach the sum of $3,000 in any one fiscal year, all feés received by such clerk in naturalization proceedings in excess of such amount in said year shall be paid over to a department of the Federal government. That section also provides that the clerk of a court exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by that act upon such clerk from fees received by him in naturalization proceedings, and that if such clerk in any one year collects fees in excess of $6,000,—that is, if the one-half retained by the clerk exceeds $3,000,—then the secretary of Commerce and Labor may allow such clerk, from the money which the United States shall receive, additional compensation for the employment of additional clerical assistance, if, in the opinion of such secretary, the business of said clerk warrants such allowance.

Section 9 of article X of the Constitution of 1870 of the State of Illinois provides that the clerks of all courts of record shall receive, as their only compensation for their services, salaries, to be fixed by law, and paid only out of the fees of the office actually collected, and that all fees, perquisites and emoluments above the amount of said salaries shall be paid into the county treasury, and that the number of the deputies and assistants of such officers shall be determined by" rule of the Circuit Court, to be entered of record, and their compensation shall be determined by the county board. Section 10 of said article requires the county board to fix the compensation of all county officers, and the amount of their necessary clerk hire, and their expenses, and where fees are provided for said compensation shall be paid only out of them, and shall in no instance exceed the fees actually collected, and that all fees or allowances by said clerks received in excess of their said compensation shall be paid into the county treasury. Section 51 of chapter 53 of the Revised Statutes is intended to carry into effect these constitutional provisions and requires each county officer to keep an account of all his fees and emoluments earned, and all payments received, and to account therefor, and to report the same twice each year to the chairman of the county board, and to pay over to the county treasurer the balance in his hands after deducting his salary and such expenses as the county board may allow. There are numerous cases in this State strictly enforcing the foregoing constitutional and statutory provisions, and holding’ that even the imposing of new duties upon such an officer after he has entered upon his office will not permit him to receive, or the Legislature to confer upon him, any additional compensation therefor. These provisions and decisions, however, were enacted and announced with reference to duties imposed upon him by the laws of the State, and we do not consider them as necessarily decisive of the question here involved.

The fourth clause of section 8 of article I of the Constitution of the United States gave to Congress the power to establish uniform rules of naturalization. Undoubtedly that jurisdiction, when exercised, is exclusive, and operates to repeal former laws by which the States naturalized citizens of the United States, and fixed the fees therefor, and controlled the application of said fees; and numerous decisions which were made under those former laws are no longer authority. When Congress confers jurisdiction upon a Federal court, such act binds the Federal court, and it is compelled to perform the duty so imposed upon it. Congress possesses no power to compel a State court to entertain proceedings for the enforcement of Federal statutes such as this. It has been said that such an act as • this confers upon the State court permissive' jurisdiction; that is, the State court is permitted to act, but cannot be coerced into doing so. Robertson v. Baldwin, 165 U. S. 275; State v. Judges of Common Pleas Hudson Co. (N. J.) 30 L. R. A. 761 and notes. It was said in Commonwealth of Kentucky v. Dennison, 24 How. (U. S.) 66, page 108, that Congress may authorize a particular State officer to perform a particular duty, but if he declines to do so it does not follow that he may be coerced. The court there referred to laws which have been passed authorizing State courts to entertain jurisdiction in certain proceedings by the United States, and said that these powers were for some years exercised by State tribunals readily, and without objection, until, in some States, it was declined because it interfered with and retarded the performance of duties which properly belonged to them as State courts. The Court there said that in these cases the co-operation of the States was a matter of comity, which the several sovereignties extended to one another for their mutual benefit, but was not regarded as an obligation imposed by the Constitution, and that the Acts of Congress conferring jurisdiction merely gave the power to the State tribunals and left it to the States to exercise such power or not, as might best comport with their own sense of justice and their own interest and convenience. In the matter of admitting aliens to become citizens of the United States, there are Federal courts in each State entirely competent to do all of that work, but there are only a few such courts in each State, and many aliens are located far distant from the place where such courts are held, and it would be a great burden to compel them to attend with their witnesses at the place where such courts are held, and it is therefore a matter of great convenience to them to have this jurisdiction conferred upon the State courts. The jurisdiction so conferred upon State courts, however, is not compulsory. No doubt the Legislature of any State might forbid its courts to devote any time to this work. Probably any particular court of the State might lawfully refuse to turn aside from its other business to naturalize aliens. Indeed we are advised that certain courts in this State refuse to take jurisdiction in naturalization proceedings under the Federal statute. Undoubtedly the clerk of the court would not be permitted to decline to perform this work so long as he is not forbidden by the Legislature or by the court of which he is the clerk. We regard it as entirely clear that the State is not bound to pay for the clerical services required in the naturalization of aliens in the State courts, nor is the county board bound to make the clerk any allowance for a clerical force or other expenses for such service.

It may be instructive to ascertain from said Naturalization Act what duties are required of the clerk of the court in naturalization proceedings. The government of the United States furnishes to each such clerk blank forms and all records and documents required in the naturalization of aliens. The alien must file, at least two years prior to his application for admission, a declaration of his intention to become a citizen. The law does not say that the clerk shall do the clerical work of filling up the blank form of such declaration, which has been furnished him by the United States, but it is a matter of common knowledge that he must do so in substantially all cases, because the alien seldom has the ability to fill up such a declaration correctly and completely, and the construction put upon the language of such a declaration by the officers controlling the naturalization department of the government is such that extreme care and accuracy is required, or the applicant to be naturalized must finally fail. The clerk who fills up this form must ascertain and set forth the name and age and occupation of the applicant, and must insert in such declaration his personal description. Each of the forms prepared and furnished by the department for use in naturalization proceedings requires the insertion of the color, complexion, height in feet and inches, weight, color of the hair, color of the eyes, and other visible distinctive marks of the applicant. There must also be inserted in said petition the place of birth of the applicant, and the form prescribed requires the date of his birth. There must also be inserted in said petition the date of the arrival of the applicant in the United 'States, the name of the vessel in which he came, and the forms prescribed require the clerk to ascertain and insert the character of the conveyance or the name of the transportation company by which .the applicant arrived, if he did not come upon a vessel; and it must state also his last foreign residence and his present place of residence in the United States. There must be prepared a duplicate of said declaration of intention. When the time has arrived at which the applicant can apply to become a citizen a petition therefor must be filed. This the clerk, from the necessities of the case, must prepare, upon the forms furnished him, and must ascertain from the applicant his full name, his place of residence, with street and number, his occupation, the date and place of his birth, the place from which he emigrated, the place of his arrival in the United States, the name of the vessel ón which he arrived; and the forms furnished require that, if he did not arrive by vessel, then the character of the conveyance by which he arrived or the name of the transportation company shall be given, and also the time when and place where and the name of the court where he declared his intention to become a citizen. The clerk must ascertain if the applicant is married, and if so, must insert Ms wife’s name, and where she was born. There must be inserted the number of his children, and the name of each child, and the date and place of its birth, and the place of residence of each. The petition must be made to state the time when he arrived in the State where the application is heard, and where he resided prior to that time, if in the United States, and if he has previously petitioned for citizenship which has been denied, the petition must state the name of the court in which said application was made, and the date when and the reason why the same was denied. To this petition must he annexed an affidavit of the petitioner and of two witnesses; and the name and occupation and place of residence of each witness must be given, and the length of time which each witness has known the petitioner, and other details. Certain particular days of the court must be set aside by order of court as naturalization days, and the petition must be set down for hearing by the clerk for a particular naturalization day, and upon the filing of the petition the clerk must post in a public and conspicuous place in his office, or in that building, a notice giving the name, nativity and residence of the alien, the date and place of his arrival in the United States, the date fixed for the final hearing of Ms petition and the names of the witnesses, and if requested, the clerk must issue a subpoena for said witnesses. He must attend the hearing on naturalization day, and swear the witnesses, and admimster the oath of allegiance to the petitioner who is admitted, and must then issue to him a certificate of naturalization, in wMch the clerk must give the new citizen’s age, his height in feet and inches, his color, his complexion, the color of his eyes, the color of Ms hair, and his visible distingMshing marks, the name, age and place of residence of Ms wife and of each of his minor children, and must fill in the name of the citizen and his residence, and the term of the court and the day of the term at which he was admitted, and a copy of the order admitting him. The clerk must also fill out a stub of said certificate, containing these details, and the number of the certificate and the number of the stub must correspond. On the first working day of each month the clerk must send to the department at Washington duplicates of all declarations of intention, petitions for naturalization and certificates of naturalization filed or issued during the preceding month, and must send therewith a report showing the number of such papers filed or issued during the preceding month, and in the case of petitions for naturalization he must report to the department the approximate days of the final hearings. He also is required, within thirty days after each final hearing, to report to the department the name of each alien who is denied naturalization. He is also subject to the direction of said department, and must send to the department certified copies of such other proceedings arid hearings instituted in or issued out of his said court as affect or relate to the naturalization of aliens, and as may be required from time to time by' the department. Numerous rules and regulations are adopted by the department controlling the naturalization of aliens, and these are changed from time to time, and they must be studied and obeyed by the clerk. The government not only requires great particularity in the declaration of intention, but also in the petition for naturalization, and these details must be carefully ascertained and correctly inscribed in the petition, or great danger arises that the application may be denied because of the incorrectness or incdmpleteness of the statements therein made. In counties composed of rural communities, where residences are rarely changed and immigrants seldom locate, the work imposed upon the clerk of such court by naturalization proceedings during any one year will be slight. Where there is a large foreign population and many manufactories and industrial works inviting foreign labor, the duties of such a clerk in naturalization proceedings may be very great.

It is obvious that Congress had no power to impose the burden of this clerical work upon the State, nor upon the county where the naturalization- is had. It seems to us equally clear that Congress had no such intention. This seems plain from the general scope and structure of the Naturalization Act; and also from the following language in section 13 thereof: “The clerks of the various courts exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by this act upon the clerks of courts, from fees received by such clerk in naturalization proceedings.” These are specific directions by Congress to the clerks to expend these fees in paying all additional clerical force required to perform the duties imposed upon the clerk by this Naturalization Act. How can the State or the county be heard to require the clerk to disobey these directions by Congress in a matter over which Congress has exclusive control, and instead to pay the fees to the county, and to accept such clerical assistance in naturalization matters as the State or county authorities may choose to allow! Congress says the additional clerical force required for naturalization shall be paid by the clerk from these fees. Can the State command that the clerk pay these fees into the county treasury, and depend upon the county board to determine what sum, if any, is needed for additional clerical aid! The supremacy of Congress over the entire subject of naturalization seems to imperatively require a negative answer. It seems to us, after a fair consideration of all the language of the act, that the conclusion is justified that the sums which the clerk is thereby allowed to retain were intended not merely nor not chiefly to pay the clerk himself for his additional labor, but to enable him to procure all the necessary clerical assistance to do the work which the act imposed upon him. Of course, when the court and the clerk are acting under this law, they are governed by this law and not by the State statutes. The act requires that one-half the fees shall be remitted' by the clerk to the United States government, and by no possibility can the county have any right to require the clerk to pay that money to it, although it is made up of fees paid to the clerk by virtue of his office. If the total received by the clerk in any one year for naturalization exceeds $6,000, then the act requires him to remit all beyond that to the United States government. The act provides that if the clerk has so received more-than $6,000 in any one year, and has remitted $3,000 to the United States government, and also the sum in excess of $6,000, the department may allow such clerk, from the money which the United States shall receive, additional compensation for the employment of additional clerical assistance, if, in the opinion of said department, the naturalization business of such clerk warrants such further additional assistance; but that in no event shall the whole amount allowed a clerk of a court and his assistants exceed one-half the gross receipts of the office of such clerk from naturalization fees during said fiscal year. There is a further provision that if the business of the clerk for any fiscal year indicates, in the opinion of the department, that' the naturalization fees for the succeeding year will exceed $6,000, the department may authorize the continuance of the allowance for additional clerical assistance, until such time as the remittances indicate to the department that the fees of the then current fiscal year will not be sufficient to allow such additional clerical assistance, and that the payments for such additional clerical assistance shall be in the manner and under such regulations -as the department may prescribe. If, when the Act of 1906 went into effect, the duties of this circuit clerk imposed upon him by the laws of this State had been such that his own services and those of the clerical force which had been allowed to him by the laws of the 'State were just sufficient to accomplish the work of the office required by the State, and he had applied to the county board for an allowance for additional assistance to perform the naturalization work, the county board would have been under no compulsion to allow it. It might very reasonably say to him that he had an allowance out of the naturalization fees, which was intended to pay for all such help as the naturalization work might require. Suppose the county board refused to make him any additional allowance; would he still be required to pay one-half of the fees to the county board? Suppose that in that contingency, or even without having consulted the county board at all, he hired an additional clerk to perform the naturalization work, and agreed to pay him his one-half of all the fees paid in from naturalization sources, and he did so pay the money to the additional clerk so hired, could the county board still require him to pay that money into the county treasury? Would his official bond still be liable therefor? Suppose the clerk receives for his one-half over $3,000, and pays the surplus to the United States government, and thereafter applies to the department for additional clerical assistance, and is authorized by the department to pay from said fees a certain sum for additional clerical assistance, and that sum is returned to him by the United States government or is paid by him out of the fees in his hands, must he be compelled to pay to the county treasurer the money which the United States has so furnished expressly for additional clerical assistance ? It seems to this court that the answers to these questions must be in the negative. The declaration now before us does not charge that this county board made any allowance to this clerk for clerical assistance to do the naturalization work, or that the clerical assistance which had been furnished him by the county board was sufficient to enable him, with that force, not only to perform the duties devolving upon him under the State law but also to do the naturalization work. This declaration is to be construed most strongly against the pleader, and we think we may fairly assume that the county board had made him no allowance for clerical assistance to do this work, especially as it is clear that no duty rested upon the county board to make any such allowance. We draw the conclusion, from this Naturalization Act, that Congress intended that the State should not bear the burden of the clerical assistance necessary to do this work, but that it intended that the clerk should use these fees for that purpose.

This question has been before the courts of several other States, and in most of those States provisions similar to our own exist, requiring the clerk to perform his official duties for a fixed salary, and to turn his fees into some local treasury. The question first arose in Eldredge v. Salt Lake County, 37 Utah 188It was there held that the State courts in acting in naturalization cases under this act are merely agencies of the national government; that the powers conferred and the duties imposed by said act upon State courts and the clerks thereof are not such as adhere to the office, and are not ex officio powers and duties belonging to and devolving upon the office as such, and that the duties which the clerk of the State court shall render in naturalization proceedings are not duties which are imposed on him nor services which are rendered by him as a part of the county office, to which he was elected, and of which he, is an incumbent, and that the salary which he received as compensation for discharging the duties of his county office was not intended to and did not constitute compensation for the extra official services he rendered as an agent of the general government in discharging the powers conferred upon him by the Act of Congress, for which services the fees in question were allowed him by the national and not by the State government. In Inhabitants of Hampden County v. Morris, 207 Mass. 167, the same question was presented to the Supreme Court of Massachusetts, where there was a statute passed after this Naturalization Act went into force, requiring that all fees received by the clerk in naturalization cases, except sums expended for additional clerical assistance, should be paid to the county treasurer. It was held that that statute conflicted with the Federal statute, and must yield to the latter. It was there •held that if the courts or Legislature of the State elected to exercise the jurisdiction conferred by the Federal statute, they must exercise it upon the terms and with the limitations stated in that statute, and if they chose to exercise jurisdiction in, naturalization cases, they might not depart from the statute in any particular upon which it is within the constitutional power of Congress to legislate; that the amount of the fees to be charged and the disposition of the fees are proper subjects for congressional legislation; that is, that Congress might properly require a part of those fees to be paid into the treasury of the United States to aid in the payment of the expenses of maintaining the naturalization department, and that the State cannot take those fees away from the United States. It was there further said: “Congress well might think that the elaborate proceedings required by the statute impose such duties upon clerks of the courts that the interests of the public will be promoted by giving them special compensation to be taken from the fees. As this is the policy of the law under which the court is acting, the Legislature cannot nullify the statute by enacting that the clerk shall pay all the money to the county treasurer.” It was there held that it was beyond the power of the Legislature to deal with the fees received under the law of the United States. This question was next before the Supreme Court of New York, and is reported in In re Beyer, 72 Miso. 443. That court followed the decision of the Supreme Court of Massachusetts, but said but for that decision it would have been inclined to hold that the Federal statute was simply designated to reimburse the office for the clerical force required, rather than to provide for the personal and independent emolument of the incumbent of the office. In Fields v. Multnomah County, 64 Ore. 117, the clerk of such a court sought to compel the county commissioners to pay his statutory salary, which they refused to do because he had collected certain fees under this naturalization law1, and had appropriated them to his own use, and had refused to account to the county therefor. That court held that the compensation provided for such clerk by the laws of the State was for the performance of the duties devolving on him under those laws; that if the State courts exercised the jurisdiction conferred by this Federal statute, the duties of the clerk in those matters were in addition to those imposed by the State; that in naturalization proceedings the clerk acts as the agent of the United States, and that the State cannot direct what the compensation of an agent of the general government, acting under a law of Congress, shall be; and that the clerk was entitled to receive and retain those fees, and was not required to pay them to the county. In State v. Quill, 53 Ind. App. 495, this question was before the Appellate Court of Indiana. There a Statute of 1895 fixed the fees for naturalization, and required them to be turned over to the county. It was held that these provisions were repealed by the Naturalization Act of Congress of 1906, and that since the enactment of the latter act it constitutes the only law on the subject of fees in naturalization cases. It was held that Congress might properly regulate not only the amount of the fees but also the disposition of them; that the State court, when it assumes jurisdiction in naturalization cases, must exercise it in conformity with the Federal statute, and derives no authority from any other source. It is there said: “It becomes a Federal court for the purpose of naturalizing aliens, or at least an agency of the Federal government, and the officers of the court are necessarily the officers of the Federal government in that behalf.” It was held that the county could not recover from the clerk the one-half the fees collected by him in naturalization proceedings. On the other hand in Barron County v. Beckwith, 142 Wis. 519, it was held .that the services performed by clerks of the Circuit Court in proceedings to naturalize aliens under this statute are performed in their official capacities as such clerks, and they are not permitted to hold such fees, as against the counties, where they are on a salary basis, although the court there conceded that it found the question by no means easy of solution. In City and County of San Francisco v. Mulcrevy, 15 Cal. App. 11, it was held that the disposition of the fees received by the county clerk as ex officio clerk of the Superior Court, which had jurisdiction of naturalization proceedings under the Federal statute, did not concern the United States government, but was a matter solely between the clerk and the city and county of San Francisco, and that it was the official duty of that clerk under the charter of said city and county to pay such fees into the treasury of the city and county within twenty-four hours after they were received by him. In that case, the court sets out as important the salary of the. county clerk fixed by the charter, and also the sums allowed him for the various clerical assistance he required. It is stated there that the total salary list so fixed and allowed for his office amounted to $58,600 per annum, but a computation of the amounts fixed by the charter for the salaries of his forty-nine assistants, as stated in the opinion, shows that he was allowed for clerical assistance $71,400 per year, besides his own salary, and the court there said that it concluded that that clerical allowance by the charter was intended to cover all the services that might he required of that clerk, and to pay all the deputies and employees that might be necessary in performing such services. There was also a provision of the law governing such clerk, that if he needed additional deputies, clerks and employees he should apply to the mayor therefor, and, if the mayor found the same necessary, he could take steps to authorize such appointments and provide for additional compensation. This case had been first appealed to the Supreme Court of California, and had been by that court sent to said Appellate Court under a provision of the State Constitution, and after the decision of the Appellate Court an application was made to the Supreme Court to hear the cause, and that application was denied. Thereafter, the case was removed to the Supreme Court of the United States, where it is reported as Mulcrevy v. City and County of San Francisco, 231 U. S. 669. That court accepted the construction of the charter of the city and county which had been put upon such charter by the State courts, as, indeed, it was bound to do. It stated the great amount of clerical assistance given said clerk by said charter, and the provision requiring the clerk to apply to the mayor for additional assistance if needed. The State court had held that the provisions of the charter were meant to provide for all services which could be required of the clerk, and for all employees he might need in performing all such services. The Supreme Court of the United States accepted that construction as correct. There are things said by the latter court which do not harmonize with what was held by the courts of Massachusetts, Utah, Oregon and Indiana. It seems to us, however, that what was actually decided was that the Naturalization Act did not purport to deal with the relations of the clerk to his State; that to so construe it might raise serious questions of power which should be avoided; and that the Naturalization Act could be satisfied without putting the clerk in antagonism with the laws of his State, by leaving the clerk one-half of the fees to such disposition as might be provided by the State law. The State court had held that the clerk had been provided with sufficient clerical assistance to do all the work, or provided means to obtain additional assistance, which the clerk was required to resort to if needed; and had held that his contract with the city and county required him to turn his fees into its treasury every twenty-four hours. The Supreme Court of. the United States, finding that the work had been done, and that the State court had determined that a sufficient clerical force had been provided by the city and county, refused to interfere with the decision of the highest court of the State as to the meaning of the contract between the clerk and the municipality. We think it obvious, from the tenor of the decision, that if the State courts had decided the other way, that decision would have been equally approved. The real point of the Federal decision is that the clerical force having been provided and paid for by the city and county, the United States will not interfere with the conclusion of the highest State court as to the disposition to be finally made of the one-half of the fees retained by the clerk. The Federal court does not discuss the question of the duty and right of the clerk to obtain additional clerical assistance out of his half of the fees if the county authorities refuse or fail to furnish him with the clerical assistance needed to do the naturalization work.

The decision of the Supreme Court of the United States in the Mulcrevy case, supra, throws doubt upon what we would otherwise regard as clear; yet in view of the fact that it had there been determined by the court of last resort' in the State that the necessary clerical force had been provided by the city and county, and that the nature of the contract between the clerk and the municipality had been construed by the court of last resort on that subject, and in view of the language we have quoted from the Naturalization Act, commanding the clerk to pay, from the fees received by him in naturalization proceedings; all additional clerical force required to perform his duty on naturalization cases, and that this and similar language of the act is not discussed by the Supreme Court of the United States, we conclude that the courts of Illinois are left entirely free to decide the question here presented in such manner as our courts conclude is most consonant with the language and purposes of the Federal act and of our constitution and laws. It is our conclusion that the provisions of our Constitution and laws requiring clerks of courts to pay the fees received by them into the county treasury were intended to legislate only concerning services performed by such clerks under the statutes of this State; that the provisions of the Federal laws in behalf of clerks of courts were intended to enable them to procure such clerical assistance as they might require in performing their duty under the Naturalization Act without casting any burden upon the county or the State, and that the county has no claim upon such money, and especially so in this case, where the pleader has not alleged that any clerical force for the work of naturalization had been provided or paid for by the county, but the liability is alleged to exist solely because the clerk re- , ceived said fees and did not pay them into the county treasury.

The judgments are therefore affirmed.

Affirmed.


text:
    Mary Vail, Appellee, v. North American Union, Appellant.
    Gen. No. 5,954.
    , 1. Evidence, § 48

      —when burden of proof on defendant. Where a defendant pleads the general issue and special defenses, the burden of proving the special defenses is on defendant.
    2. Insurance, § 891*—when statement of attending physician as to cause of death competent evidence. In an action to recover upon a certificate of insurance issued by a beneficiary society, a sworn statement as to the cause of the death by the physician attending the deceased, made in response to interrogatories made by the society and filed with the proofs of death, is competent evidence for defendant.
    3. Insurance, § 842*—when alcoholism defense to action on certificate of life insurance. Where the laws of a beneficiary society provide that any member who shall use intoxicating liquors to such excess as to endanger his life or materially to affect the risk on his life, shall forfeit all benefits from the society, and if his death is caused by or due directly or indirectly to such use of intoxicating liquors, all claims which his beneficiaries might otherwise have had upon the society shall be null and void, in order that the use of such liquors by deceased shall be a defense, it must appear that his death was caused directly or indirectly by such use of intoxicating liquors as endangered his life or materially affected the risk upon it.
    4. Insurance, § 890*—what effect to be given statement in proof of death. The beneficiary in a certificate of life insurance, issued by a beneficiary society, in making the proofs of death signed a form which contained the statement that the proofs had been executed at her special instance and request and that the statements therein were adopted by her and agreed to as the basis of the claim. It was held that the statement was not to be construed as a waiver of claim and an acknowledgment that the claim is void, but should be liberally construed in her favor.
    5. Insurance, § 907*—when alcoholism of insured not established. Evidence as to excessive use of intoxicating liquor by insured examined and held to be sufficient to warrant a finding by the jury in favor of plaintiff, in action on insurance certificate.
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabband, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 31, 1914.
    Rehearing granted and opinion filed January 6, 1915.
    Arthur G. Harris and William H. Winn, for appellant.
    Henry S. Dixon and George C. Dixon, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

The American Stars of Equity, a beneficiary society, issued a certificate on the life of John Vail, payable to his wife, Mary Vail. He died and proofs of death were furnished and the claim was not paid. Thereafter the business of the American Stars of Equity was transferred to the North American Union, and the latter assumed the liabilities of the former. Thereafter, Mrs. Vail sued the North American Union upon said certificate and filed a proper declaration. Defendant filed an amended plea of the general issue, with an amended notice of two special defenses. There was a jury trial. Plaintiff introduced the certificate and the proofs of death and proved the assumption of the liabilities of the former society by the defendant and the amount due and made a case under the general issue, and there was no contrary evidence under the general issue. There was a verdict for plaintiff for $781.39, and answers to special interrogatories requested by defendant. 'These questions were whether, at the time Vail made application for membership, he was an habitual user- of spirituous liquors, whether prior to such application he had been an immoderate user of spirituous liquors, and whether his death was due directly or indirectly to the excessive use of. intoxicating liquors. These questions were answered “No.” A motion by defendant for a new trial was denied and plaintiff had judgment and defendant appeals. The burden was upon defendant to prove its special defenses, and the only question on this subject is whether the jury should have found the other way on either of those defenses.

The laws of the Order provided that any person who obtained membership therein by false statements or misrepresentations in his application for membership should forfeit all benefits which he or his beneficiaries might otherwise be entitled to recover. In the application by Vail for this certificate were the following questions to which he made .the following answers:

“Do you use any spirituous or distilled liquors? No.
“Have you ever used any spirituous liquors? Yes.
“To what extent? Moderate.
“State which you have used. Whiskey.”

The amended notice under the general issue alleged that these were false statements and misrepresentations and that John Vail did at the time use spirituous and distilled liquors and had prior thereto used such liquors immoderately. The application was made on March 14th, and the certificate was issued on March 16, 1905.

Defendant proved that in 1902 Vail- had pleaded guilty to the charge of drunkenness on two or more occasions and had pleaded guilty to a like offense on two or more occasions in 1906. Various witnesses testified that they had seen him intoxicated at different times. They did not give any date, and each may have been testifying to a different event or several of them may. have been testifying to the same occasion. No one testified that this was in the year 1905. Plaintiff produced witnesses who were closely acquainted and associated with Vail in 1905, by whom it was shown that he was not drinking at all in that year. Defendant introduced a bill for divorce, filed by plaintiff against her husband on August 28, 1908, wherein she stated under oath that she was married to Vail in 1882 and that a few years after said marriage he commenced the excessive use of intoxicating liquors, and that for more than two years last past he had been guilty of habitual drunkenness. Two years before the filing of this bill would be August 28, 1906, and this does not prove that he was in the habit of using intoxicating liquors in March, 1905. Many witnesses testified that Vail was a hard-working laboring man, whose services were worth more and brought more than those of an ordinary laboring man, and that he sometimes drank liquor. Many of them testified that he never drank it to excess to their knowledge. Some of them had seen him intoxicated on remote occasions. By his application he revealed to the Order that he had used' whisky in moderation. Obviously what would be such moderation is a matter upon which people would differ. It is worthy of note that the laws of the Order provided that, upon credible information being received that a member is using intoxicating liquors to such an excess as to endanger his life or to materially affect the risk upon his life or to materially bring discredit upon the Order, an investigation should be made and, if the charge was found to be true, the offending member should be suspended.

Various officers of the local society testified, and it appeared from their evidence that they knew, that Vail drank liquor to some extent or they had smelled it upon his breath. They never caused such an investigation to be made, but took dues from him to the end of his life. The officer who received the dues knew that he drank to some extent. The fact that the Order did not suspend him or conduct an investigation, but continued to receive his dues, tends to show that its officers did not consider that he had obtained his membership by false statements or was drinking to an extent which endangered the risk.

The laws of the Order provided that any member who shall use intoxicating liquor to such excess as to endanger his life or to materially affect the risk on his life shall forfeit all benefits from the society, and if his death is caused by or due directly or indirectly to such use of intoxicating liquors, all claims which his beneficiaries might otherwise have had upon the Order shall be null and void. Defendant claims that the death of Vail was due to alcoholism and that by reason thereof plaintiff cannot recover, and also that that fact is conclusively established by the affidavit of the attending physician, filed with the proofs of death. The proofs of death were upon forms provided by the society for that purpose and, among other things, the society required answers to numerous interrogatories by the attending physician. In his certificate that physician stated that the remote cause of the death of Vail and predisposing cause was gastritis and passive congestion of the lungs. He was asked if there was any special cause, direct or indirect, for the death in the habits, occupation or residence of the deceased and he answered “Alcoholism.” He was asked if deceased used alcoholic beverages of any kind and he answered “Yes.” He was asked: “If so, to what extent?” and he answered, “Drinks whiskey, sometimes to excess; not a steady drinker; periodical; sometimes months without drinking. ’ ’ He was asked: “With what, effect?” He answered, “As stated,” with a reference following to the answer about his drinking whisky. On another form, furnished and required by the society, Mrs. Vail was made to say that these proofs of death had been executed at her special instance and request and that the statements therein contained were adopted by her and agreed to as the basis of the claim. The sworn statement by the physician was competent evidence for the defendant. The physician was not called as a witness. The only times when he ever saw deceased, so far as that statement shows, were from February 12 to February 15, 1913, and Vail died on February 16,1913. He gave both the immediate cause and the remote cause of Vail’s death as gastritis and passive congestion of the lungs. There is nothing to show that he had ever seen Vail at any other time. His statement as to the habits of Vail may have been based upon his own knowledge or it may have been obtained from inquiry which he made of others to enable him to answer these questions. To what extent alcoholism was the special cause of his death and whether it was the direct or indirect cause is not revealed. No opportunity was offered plaintiff to cross-examine him and ascertain the grounds of his conclusions. In order to avoid the certificate on the grounds above stated, it must appear that his death was caused directly or indirectly by such use of intoxicating liquors as endangered his life or materially affected the risk upon his life. The affidavit of the physician did not state that deceased had made such a use of intoxicating liquors. It is obvious that plaintiff, in stating that the various affidavits con- ■ nected with the proofs of death had been executed at her instance and that she adopted the statements therein as the basis of her claim, did not mean to waive her claim upon this policy. If she meant that she thereby conceded that this policy was void, she would not have executed any proofs of death at all. She was attempting to assert a valid claim, and we think she should not be conclusively defeated by the affidavit of the physician merely because of the printed words which the society required her to sign in order to present a claim. We think that the language of Mrs. Vail in these printed forms furnished by the society, and by no means decisive against her, should be liberally construed in her favor under the familiar principles referred to in Zeman v. North American Union, 263 Ill. 304. There was no other direct proof that Vail died of alcoholism. Other physicians testified for defendant that gastritis and passive congestion of the lungs were attributable to various causes and, among others, to alcoholism. There was positive proof that for three months and more before his death, and while he was able to be about and at work, he drank no intoxicating liquors, and that his death was caused by pneumonia, preceded by a hard cold.

The jury decided these issues for the plaintiff. The trial judge, who saw the witnesses and heard them testify, approved those findings. We are unable to say that the jury should have found the other way or that the trial judge should have granted a new trial.

The judgment is therefore affirmed.

Affirmed.


text:
    Annie E. Stephenson, Appellee, v. Francis G. Porter et al. William A. Rogan, Appellant.
    Gen. No. 5,980.
    1. Pleading, § 321

      —when verification of cross-bill sufficient. An affidavit to a cross-bill which states that the contents thereof are true, “except as to those matters therein stated to be on information and belief, and that as to those matters he verily believes the same to be true,” is an absolute verification of all the allegations of the cross-bill, except such as are expressly stated to be on information and belief.
    2. Mobtgages, § 515*—how application by cross-complainant for appointment of receiver supported where evidence not offered. Where, on a bill to foreclose a trust deed, a defendant files a cross-bill to foreclose a second trust deed and moves for the appointment of a receiver of the rents and profits and offers no evidence in support of his application, it must be supported only by those allegations of fact in his bill which are not therein stated to be on information and belief.
    3. Mobtgages, § 514*—when receiver of rents and profits not appointed in action to foreclose. The application for the appointment of a receiver of rents and profits, made by a cross-complainant who has filed a cross-bill to foreclose a second trust deed in a proceeding to foreclose a trust deed on the property, will not be granted, even though the second trust deed, which secures a principal sum of $3,000, with interest, pledges the rents and profits for the debt, where the evidence shows that the value of the property is over $20,000, that there is an existing offer of over $19,000 for the property and furniture, to secure the performance of which $6,000 has been deposited, and that the liens proven to exist are only $13,000 and about one year’s interest.
    Interlocutory appeal from the Circuit Court of Lake county; the Hon. Chakles Whitney, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed January 16, 1915.
    Elbridge Hanecy and John F. Gavin, for appellant.
    Parker H. Hoag and Frederick Ullmann, Jr., for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Annie E. Stephenson filed a bill in equity against Francis G. Porter and others to foreclose a trust deed of real estate, securing a debt for the principal sum of $10,000 with interest. George L. Miller, a defendant, answered and filed a cross-bill to foreclose a second trust deed of said real estate, securing a debt for the principal sum of $3,000 with interest. He then moved for the appointment of a receiver of the rents and profits. The application was heard. William A. Bogan, who had become the owner of the equity of redemption and was a defendant to both bills, resisted the application. A receiver was appointed and a proper bond for the cross-complainant and proper bond of the receiver were each approved and filed. Bogan preserved the evidence by a certificate and appeals from the order appointing the receiver.

The affidavit to the cross-bill states that the contents thereof are true, “except as to those matters therein stated to be on information and belief, and that as to those matters he verily believes the same to be true.” Appellant contends that this affidavit puts all the allegations of the cross-bill upon information and belief. The cases which he relies upon were where the words “to be” in the first part of the above quotation were absent. The one form refers the court to the language of the bill itself to ascertain what is therein stated to be on information and belief. The other form requires a search into the mind of the pleader or of the affiant to learn what lie intended to state on information and belief. Of many cases holding the first form positive and sufficient and the second form uncertain and insufficient, we refer to Stirlen v. Neustadt, 50 Ill. App. 378; Christian Hospital v. People, 125 Ill. App. 631; and Von der Leck v. Baldwin County Colonization Co., 178 Ill. App. 93. We regard it as settled that this affidavit is an absolute verification of all the allegations of the cross-bill, except where the cross-bill states expressly that the allegation is on information and belief.

Cross-complainant offered no evidence in support of his application for a receiver. It must therefore be supported, if at all, only by those allegations of fact in his bill which are not therein stated to be on information and belief. The existence of these two incumbrances for a total of $13,000 and interest is so established. The first instrument was dated May 1, 1913, and this application for a receiver was heard on May 9,1914, so that the interest is not a large amount. There are allegations in the cross-bill of various notices for mechanic’s liens for various amounts, but these are all alleged on information and belief and must be disregarded. Appellant proved against the application, by several witnesses, that the property was then worth more than $20,000 and that it was at that very time under an offer to buy the same, and furniture in the dwelling house valued at $1,000 for over $19,000, and that the proposed purchaser had deposited $6,000 with the Chicago Title & Trust Company' upon his offer to purchase the same. It is clear that the second trust deed pledged the rents and profits for this debt. The principles governing such a case are sufficiently laid down in First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76; and Ball v. Marske, 202 Ill. 31. The Bagley case, supra, however, shows that though- the fact that the trust deed gives a lien upon the rents and profits is to be considered in determining whether the power of the court to appoint a receiver should be exercised, yet the court is not bound to enforce it where it is not necessary for the security of the debt. We conclude that in this case, where the property is not only proven by several witnesses to be worth over $20,000 but ah existing offer is shown to pay therefor (with furniture) over $19,000 with a substantial sum deposited to secure its performance, and the liens proven to exist are only $13,000 and about one year’s interest, the court should not have appointed a receiver, and that it was not necessary to do so in order to make the cross-complainant entirely secure.

The order appointing the receiver is therefore reversed.

Reversed.


author: Mb. Justice Dibell

text:
    Minnie Hull, Appellant, v. James D. Hull, Appellee.
    Gen. No. 5,984.
    Marriage, § 29

      —when false representations by husband as to his chastity not ground for annulment. False representations by a man before marriage, made to Ms intended wife, as to Ms not having had intercourse with other women are not ground for annulment of the marriage by the wife.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Walter C. Schneider, for appellant.
    James L. Dougherty and Savary & Ruel, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Justice Dibell

delivered the opinion of the court.

On October 25, 1913, appellee married appellant. On November 28,1913, appellant left her husband, and on December 8, 1913, she filed this bill against her husband to annul the marriage. A demurrer to the bill by defendant was sustained, and complainant elected to abide by her bill, and it was dismissed at her costs. This is an appeal by her from said decree.

In the bill appellant alleged that she was chaste when she married appellee; that her consent to the marriage was procured by appellee by material false and fraudulent representations, in this, that he represented to her that he was a chaste person and had never had sexual intercourse with other women, and that a woman named Hall was charging him with being the father of her unborn child in order to cause him to marry her, but that he had never had sexual intercourse with said woman and was not the father of said unborn child. The bill averred that appellant made due inquiry regarding said statements, and that appellee repeatedly affirmed that he was innocent of said charge, and that she believed and relied upon his representations, and in reliance thereon married him; that in fact said statements were untrue, and that he had had frequent sexual intercourse with said woman named Hall, and that said Hall woman is and was at the time of said marriage pregnant with a child of which appellee is the father, and that appellee well knew these facts when he made said representations and knew that they were untrue; that the relatives of said Hall woman have threatened to prosecute him for bastardy and that appellee will be forced to pay her large sums of money under the laws of this State, and that he is a poor man and will be unable to pay such sums and also support appellee and appellant, and that since said marriage she has been informed and believes and charges the fact to be that he is the father of divers other illegitimate children, and that he fled from his former home in Kentucky to avoid prosecution for such acts. The bill further alleged that she did not know of the falseness of these representations until November 28, 1913, and she then immediately left bim and ever since remained away from him; and that if she had known that appellee was the father of said unborn child and had been unchaste she would not have consented to marry him; and that he married appellant merely to protect himself against the charges of said Hall woman.

The argument for appellant is that, under the law, if a man marries a woman who is pregnant by another man, and she has concealed that fact from him, and he has not had intercourse with her before the marriage, the marriage may be annulled; and that there ought to be the same law for a man as for a woman; and that, if that rule is applied to this case, this marriage should be annulled. We concur with appellant that the law should apply equally to the man and to the woman, and we hold that it does so apply equally. But the cases supposed by the argument to be the same are radically different. When a man marries a woman, not his paramour, at a time when she is pregnant by another man, which fact she has concealed from her intended husband, different courts have given two reasons why the marriage shall be held voidable. One is, that by the fact of existing pregnancy the woman is incapable of bearing a child to her husband at that time, and is unable to fully perform the contract implied in marriage. The other, and, we think, the true ground for holding the marriage voidable, is that thereby there is brought into the marriage relation, and into the home of the husband and wife, an infant which is in fact not the child of the husband, but which is presumed by the law to be his child until the contrary is established. He must suffer the child to be considered his own, though begotten by another man before marriage, or he must begin proceedings by which shame will brought upon his wife. The husband is not bound to support such a child, and its presence in the home is likely to produce great discord. This is held to be a fraud, the results of which are of the gravest character. Reynolds v. Reynolds, 3 Allen (Mass.) 605. If, however, some other woman is pregnant by the husband, the child is not born into the family nor brought into the home of the husband and wife, and no question of its legitimacy and right to inherit the property of the husband is involved. It is well settled in nearly all of the States of the Union that concealment or misrepresentation concerning the party’s health, character, wealth, social position, previous history or habits, does not furnish sufficient cause for the annulment of the marriage, and that false representations as to the previous chastity of either party to the intended marriage are not ground for annulling it. Tiffany on Domestic Relations, 10; 19 Am. & Eng. Encyc. of Law (2nd Ed.) 1183-1188; 26 Cyc. 899-907. These principles are laid down in numerous cases cited in the foregoing authorities, and they are equally applicable whether the false representations of chastity were made by the man or by the woman. The consequences of the birth of a bastard child outside the marriage relation are so different from the consequences of the birth of such a child within that relation that the same legal results to the marriage relation should not follow from the one as from the other. If, as is held in the authorities above cited, the fact that a woman concealed from her intended husband that she had been a prostitute would not authorize an annulment of the marriage at the suit of the husband, when he discovers that fact, no reason is perceived for the claim that the man and the woman are not, in this • respect, treated equally before the law.

The decree is affirmed.

Affirmed.


text:
    Frederick B. Townsend, Appellant, v. A. D. Gash et al., Appellees.
    Gen. No. 5,994.
    1. Appeal and error, § 1137

      —what effect of denial of motion to dismiss appeal because State real defendant. Even though a motion in the Appellate Court to dismiss an appeal on the ground that the State is the real defendant be denied, the denial does not remove the question from the case.
    2. Courts, § 83*—when Circuit Court has jurisdiction of suit against State officers. The Circuit Court has jurisdiction ■ of a bill by a taxpayer to declare void a contract by the State Highway Commission for the purchase of cement for the construction of State aid roads and to enjoin the Commission from purchasing material for the construction of such roads.
    3. Appeal and error, § 208

      —when appeal in cases involving revenue lies to Appellate Court. A suit by a taxpayer to declare void a contract of the State Highway Commission for the purchase of cement for the construction of State aid roads, and to enjoin the Commission from purchasing material for the construction of such roads, does not involve the revenue directly but only indirectly, and the indirect reference to the revenue does not authorize an appeal direct to the Supreme Court.
    4. Appeal and error, § 219*—when lies to Supreme Court in proceeding in which State directly interested. Where a suit is brought by a taxpayer to declare void a contract of the State Highway Commission for the purchase of cement for the construction of State aid roads and to enjoin the Commission from purchasing any material for the construction of such roads, the State is directly interested and the appeal therein lies directly to the Supreme Court and not to the Appellate Court.
    Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1914. Transferred to Supreme Court.
    Opinion filed January 6, 1915.
    Faissler, Fulton & Roberts and Knapp & Campbell, for appellant; John B. Cochran, of counsel.
    P. J. Lucey, Attorney General, George P. Ramsey and Duncan & O ’Conor, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. ,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

On June 20, 1914, Townsend, a citizen and taxpayer of DeKalb county, filed a bill in equity, and after-wards an amended bill, against the State Highway Commission and the Marquette Cement Manufacturing Company. The amended bill alleged that said Commission advertised for bids for furnishing all the cement required in the construction of all State aid roads in this State during 1914; that the Marquette Cement Manufacturing Company was the lowest bidcler, and that the contract therefore was made with it; that said Commission directed the preparation of specifications for the construction of State aid roads, requiring cement in such construction, and providing that the State shall furnish such cement at certain prices specified, and advertised for bids in many counties of the State for the construction of such State aid roads and for the furnishing of all materials, except cement, required therefor, and intends to let contracts thereunder and will expend about $400,000 for cement in 1914, and will purchase all said cement of said Marquette Cement Manufacturing Company for the year 1914, and will compel the use of the same. The amended bill further alleged that the statute does not authorize said Commission to purchase such cement for the construction of State aid roads, and that such- contract is void for want of authority in the Commission to make the same, and that said Commission, Unless restrained, will.purchase large quantities of cement under said contract and will issue orders to the auditor of public accounts for warrants on the State treasurer for payment for such cement out of the State funds derived by taxation upon the property of the complainant and all other taxpayers, and if such orders are issued and such warrants are drawn and paid, this will constitute an unlawful expenditure of public funds. The prayer was that said contract be declared void, that the State Highway Commission be enjoined from purchasing cement or any other material for the construction of State aid roads, and from issuing any order authorizing the auditor of public accounts to draw his warrant upon the State treasurer for the payment of any public moneys for cement so purchased. ' The specifications and the contract are exhibits to the bill. The defendants filed a special demurrer. It was stipulated that the court should hear the cause upon the amended bill and the demurrer thereto and the motion by complainant for an injunction and should enter a final decree, either granting a permanent injunction or dismissing the bill for want of equity. The court sustained the demurrer and complainant elected to stand by the amended bill and it was dismissed for want of equity, and the complainant appealed to this court.

Appellees moved to dismiss the appeal and to transfer the cause to the Supreme Court. These motions were inconsistent, but we entertained them both. The motion to dismiss the appeal was based upon the contention that the State is the real defendant and that for that reason the suit cannot be maintained. We denied that motion, but the question is still in the case, for if the State is the real defendant then no court can acquire jurisdiction of this cause, under section 26 of article IV of the Constitution, which provides that “The State of Illinois shall never be made defendant in any court of law or equity.” We are of opinion that the Circuit Court had jurisdiction of the cause against these State officers, under the principles laid down in Joos v. Illinois Nat. Guard, 257 Ill. 138, and Burke v. Snively, 208 Ill. 328.

The motion to transfer the cause to the Supreme Court we took with the case. It was based upon the contention that the appeal lies to the Supreme Court and not to this court, under section 118 of the Practice Act of 1907 (J. & A. ¶ 8655), which provides for appeals from the Circuit Court to the Supreme Court, among other cases, “in all cases relating to revenue or in which the State is interested as a party or otherwise.” It is decided in many cases that in order to require an appeal to the Supreme Court on the ground that a case relates to revenue, the revenue must be directly and not indirectly involved. Among other cases are Reed v. Village of Chatsworth, 201 Ill. 481; People v. Turnbull, 256 Ill. 532, and cases there cited. This 'case does not directly involve the revenue. If the appeal should have been to the Supreme Court direct it must be on the ground that the State is interested, otherwise than as a party. The provision above quoted from the Practice Act of 1907 has been a part of the statute since it was incorporated into section 88 of the Practice Act in 1879 (Laws of 1879, p. 222). After that amendment, section 8 of the Act establishing Appellate Courts (J. & A. ¶ 2968) was amended and in terms provided what cases should be taken to the Supreme Court and did not include cases relating to the revenue or in which the State is interested. It was held in Dement v. Rokker, 126 Ill. 174, that said last-named act was applicable only to Appellate Courts, and that it did not affect the jurisdiction conferred upon the Supreme Court by said amended section 88 of the Practice Act. That was a suit for a mandamus against the commissioners of State contracts and the auditor of public accounts to compel said commissioners to certify the accounts of certain printers to the auditor of public accounts, and to compel said auditor to draw his warrant in favor of the printers upon the State treasurer for a certain sum, payable out of a certain appropriation, and commanding the treasurer to pay the same. The Supreme Court there took jurisdiction of an appeal direct from the Circuit Court, after consideration of. the question. That court did not expressly state upon what clause of the statute it based its jurisdiction of a direct appeal from the Circuit Court. Apparently it was not upon the ground that the suit related to the revenue, but must have been upon the ground that the State was interested, and it must have been upon the ground that the State was directly and substantially interested, for it is elsewhere held that the interest which authorizes such an appeal must be a direct and substantial interest. Hitchcock v. Greene, 252 Ill. 519; People v. Rodenberg, 259 Ill. 78. Dement v. Rokker, supra, must therefore be considered as holding that that was a case in which the State was directly and substantially interested. In Canal Commissioners v. Sanitary Dist. of Chicago, 191 Ill. 326, the canal commissioners filed a bill in the Circuit Court against the sanitary district to compel specific performance of a contract between the said bodies and for an injunction. There was a decree, not satisfactory to either party. The sanitary district appealed to the Appellate Court and the canal commissioners appealed to the Supreme Court, and the sanitary district moved to dismiss the latter appeal. That motion was denied on the ground that the State was directly interested in that suit. It was shown that the State was the owner of the canal, and that the canal commissioners were acting in their official capacity; that the canal was maintained by the State, which made up all deficiencies in the revenue and maintained a board of canal commissioners, with their equipment and employees, to operate the canal as a State enterprise. In the case at bar the State Highway Commission was acting under the first four articles of the codified Road and Bridge Act of 1913. (Laws of 1913, pp. 521-534.) There was thereby created a State Highway Department, whose officers were the State Highway Commission, the chief State highway engineer, and the assistant State highway engineer, appointed by the Governor and serving for a term of years under salaries paid by the State, with the expenses of the department. That act provided that public highways should be selected throughout the State, to be constructed and improved at the joint expense of the State and of the county in which such highway might be, which highways, after they had been so constructed or improved, should thereafter be maintained and kept in repair at the expense of the State. We conclude that within the principles laid down in Canal Commissioners v. Sanitary Dist. of Chicago, supra, on p. 333, the State is directly interested in this suit. The funds of the State are to be used to pay for cement under the contract here involved. The State Highway Commission is acting in its official capacity for the State. After these State aid roads have been completed they are to be thereafter maintained at the State expense. The State aid roads are a State enterprise. We think this conclusion fairly appears from the review of this statute in Martens v. Brady, 264 Ill. 178. There are cases where the Supreme. Court has taken jurisdiction of such a direct appeal, where the State was apparently no more interested than here, where the question of jurisdiction was not raised, but where we must presume that the Supreme Court would have declined jurisdiction of its own motion if it had not considered that it had jurisdiction. Joos v. Illinois Nat. Guard, supra, and Burke v. Snively, supra, are such cases. Our attention is called to cases where, before the act for the transfer of an appeal to the proper court, the Supreme Court dismissed, for want of jurisdiction, direct appeals to that court. We consider most of these cases distinguishable from the case now before us. There are cases, on the border line as to the court to which the appeal should go, where the Supreme Court took jurisdiction of appeals coming to it through the Appellate Court, where the question of jurisdiction of the appeal was not raised or discussed. While these decisions create some doubts upon the question, they do not justify us in attempting to decide the merits of this case, in which we conclude the State is directly interested.

It is therefore ordered that this cause be transferred to the Supreme Court pursuant to section 102 of the Practice Act of 1907 (J. & A. ¶ 8638).

Transferred to the Supreme Court.


text:
    Arthur Keithley, Appellant, v. Mutual Life Insurance Company of New York, Appellee.
    Gen. No. 6,002.
    1. 'Fraud, § 18

      —when statements not sufficient ground for action. An action against a life insurance company for fraud and deceit, in that it misrepresented the value which the policy would have at the end of twenty years, cannot he maintained where the alleged false and fraudulent statements did not relate to existing facts, but consisted in predictions or promises of the company as to the value which the policy would have at the end of twenty years.
    2. Fraud, § 78*—necessity of averring scienter. In an action of fraud and deceit, it is necessary to aver scienter.
    3. Limitation of actions, § 46*—what concealment of cause of action prevents running of statute. The concealment of a cause of action which will prevent the operation of the statute of limitations must be something of an affirmative character which is intended to prevent and does prevent the discovery of the cause of action.
    Appeal from the Circuit Court of Peoria, county; the Hon. John M. -Niehaus, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    McRoberts, Morgan & Zimmerman, for appellant.
    Page, Hunter, Page & Dallwig, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

Arthur Keithley brought an action for fraud and deceit against the Mutual Life Insurance Company of New York and filed a declaration containing two counts. There was a general and special demurrer to each count and it was overruled as to the first count and sustained as to the second count. Defendant filed the general issue and a plea of the statute of limitations. There seem to have been two replications to said second plea and a demurrer to one of said two replications was sustained, but they are not in this record. ' Thereafter, appellant filed an additional replication to said second plea, and a general and special demurrer thereto was sustained, and appellant elected to stand by said additional replication, and withdrdw the former replication, and there was a judgment in bar against appellant, from which he appeals and assigns error in sustaining the demurrer to the second count of the declaration and the demurrer to the additional replication, and in rendering judgment in bar. The sole questions, therefore, are whether the second count stated a cause of action and whether the additional replication was a sufficient reply to the plea of the statute of limitations.

The first count alleged that appellee was an Insurance Company under the laws of the State of Few York and that on December 30, 1893, it presented to plaintiff a policy wherein, for $184 to be paid by appellant to appellee yearly for twenty years, appellant agreed to pay appellant’s wife $5,000 at appellant’s death within said twenty years, and if appellant survived that period, then to pay appellant the distributive share of the surplus, plus the legal reserve; that, to induce appellant to accept said policy, appellee falsely and fraudulently represented to appellant that appellee for many years had been issuing such policies to other persons and that the surplus and reserve had never been less than $5,664.05 on each policy, and that appellee had never paid any such policy holder less than that sum and usually more than that sum, and that if appellant would accept this policy, appellee would certainly pay him, if he was alive at the end of twenty years, not less than $5,664.05, and probably a larger sum, and stated that the law of the Etate of Few York compelled appellant to pay the holder, of such policy at the end of twenty years not less than that sum, and that, if the surplus and legal reserve were greater than that sum, appellant would receive his proportionate share thereof; that appellant, at the time said representations were made to him, had no other information concerning any of said matters, and believing said representations to be true, accepted said policy and paid appellee $184 per year for twenty years, and at the expiration of said twenty years appellee did not pay appellant $5,664.05 or any part thereof, and that thereby an action had accrued to appellant against appellee for said fraud. The second count averred that on December 30, 1893, appellee sold appellant a policy of insurance by which appellee agreed to pay plaintiff in cash at the end of twenty years certain sums determinable upon the amount of surplus of said Company at that time, plus the legal reserve; that appellee did not know and could not know what the surplus or earnings of said Company would be for that period, nor what amount would be due appellant upon said policy at the end of twenty years; but that, to induce appellant to enter into said contract, it falsely and fraudulently represented to him that the surplus of said policy, plus the legal reserve at the end of twenty years, would be $6,000, and that it would pay plaintiff $6,000 at that time, and that appellant had no knowledge of the earnings or surplus to become due, except what appellee told him, and appellant relied upon said representations and accepted said policy and paid therefor; but that said policy did not earn $6,000 and appellee refused to pay plaintiff anything thereon, whereby appellee had defrauded plaintiff. The additional replication to the plea of the statute of limitations charged that appellee fraudulently concealed from plaintiff the fraud which constituted appellant’s cause of action herein until within less than five years before the commencement of this suit, and that such fraudulent concealment consisted of the following conduct on the part of appellee. The additional replication then restated the allegations of the first count of the declaration, but not always in exactly the same language, and averred that of February 15, 1913, he inquired of appellee what amount would be due him from appellee on said policy when it matured on December 30, 1913, and that the answer of appellee to said question first disclosed to appellant, and appellant then first learned, the fraud perpetrated by the defendant upon the plaintiff in procuring plaintiff to enter into said contract of insurance.

The words “false,” “fraudulent” and the like in a pleading are of no avail, in the absence of averments of fact showing that the matter set up was false or was fraudulent. Fortune v. English, 226 Ill. 262. The statements alleged in these pleadings to have been false and fraudulent did not relate to any existing fact, but were either predictions or promises as to the state of facts which it was expected would exist twenty years later. In an action for fraud and deceit, the fraud and deceitful representations must be concerning an existing fact or facts. A promise to perform an act, even if the promisor intends not to perform it, is not such a representation as can be made the ground for an action for deceit. Grubb v. Milan, 249 Ill. 456.

There is nowhere in the first count any averment that appellee knew that the alleged representations were false, and in an action of fraud and deceit it is necessary to aver scienter. Cantwell v. Harding, 249 Ill. 354. Under these principles, which are supported by many cases in Illinois, appellant has not stated a cause of action against appellee for fraud and deceit. Section 22 of the Limitation Act (J. & A.¶ 7217) provides that if a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the suit may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action. The concealment of a cause of action which will prevent the operation of the statute of limitations must be some-. thing of an affirmative character, intended to prevent and which does prevent the discovery of the cause of action. Lancaster v. Springer, 239 Ill. 472. No affirmative acts nor representations are alleged in this case, by which appellee fraudulently concealed the cause of action. In all these respects the first and second counts and the additional replication are fatally defective.

The judgment is therefore affirmed.

Affirmed.

Mr. Justice Niehaus took no part in this decision.