author: Mr. Justice Carnes

text:
    The People of the State of Illinois, Defendant in Error, v. Reinholdt Becker, Plaintiff in Error.
    Gen. No. 5,709.
    1. Elections—ignorance of law. The rule, that ignorance of the law excuses no man, applies with all its force to cases of violation of election laws, and where a resident of one county votes in another county, the question of an honest mistake of his right so to vote cannot be submitted to the jury.
    2. Elections—information 'for illegal voting. The averment in an information that “there was a general election of city officers of said city, had and held under the laws of this state,” may be taken as an averment that everything precedent to and requisite for a legal election, had been performed.
    3. Elections—information for illegal voting. The charge in an information that defendant did wilfully and unlawfully vote at said election, well knowing himself not to be a qualified voter under the laws of this state, apprized defendant with reasonable certainty of the nature of the accusation.
    Error to the County Court of Lake county; the Hon. Lotus M. Reckhow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 8, 1913.
    C. P. Barnes and Gr. W. Field, for plaintiff in error.
    Ralph J. Dadt, for defendant in error; Cooke, Pope & Pope and Paul MacGuppin, of counsel.
   Mr. Justice Carnes

delivered the opinion of the court.

Plaintiff in error was tried in the County Court of Lake county on an information charging him with voting at the city election of Zion City, there held April 18, 1911, when he was not a resident of that city or county. A jury trial resulted in his conviction and he was sentenced to pay a fine of $250 and confinement in the county jail for ten days. It is not claimed that plaintiff in error was at that time a resident of said county or city. He testified in his own behalf and stated in substance that he was twenty-eight years old and resided at No. 1507 South Honoré street in the city of Chicago, where he had removed the last June or July from the premises next door; that he had .been married three years and had one child; that he was born in Chicago and had lived there all his life; never resided in Zion City and never intended to reside there, but that he was advised some time before said April election by his brother and a man named Friend, who lived in Zion City, that he could legally vote in Zion City if he would visit there more than ninety days before the election and declare his intention to make that place his home, and afterwards make a few visits there before the date of the election; that in accordance with this advice he did go to Zion City, make such declaration to the hotel keeper and visit there two or three times, and on the day of election presented himself to the polls and offered to vote, that his vote was challenged and he then signed and presented an affidavit to the election officers and was permitted to and did vote at the election. He says he had no intention of making Zion City his home at the time he made the declaration, but believed that he, a resident of Chicago, Cook county, Illinois, had acquired the legal right to vote in Zion City, Lake county, Illinois, by simply making such declaration and such visits.

The theory of the defense is that the trial resolved itself into an inquiry as to the condition of plaintiff in error’s mind at the time he voted, and that if he was honestly mistaken about the law he should be acquitted. The court submitted that issue to the jury.

It is urged that the information is bad. It consists of four counts. The first count is as follows: “Now on this day comes into open court, in his own proper person, Ralph J. Dady, State’s Attorney within and for the said County of Lake, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, and prosecutes in this behalf for and in behalf of said people and informs the court that on the eighteenth day of April in the year of onr Lord One Thousand Nine Hundred and Eleven, said day being then and there the third Tuesday in April in the year of our Lord One Thousand Nine Hundred and Eleven, there was then and there had and held in the City of Zion, in the County of Lake aforesaid, .a general election for the election of city officers of said City of Zion, to-wit: for the election of a mayor of said City of Zion, a city attorney of said City of Zion, a city treasurer of said city of Zion, a city Clerk of said City of Zion, and five aldermen of said City of Zion; that the said election was then and there duly, and in due form of law, had and held under and by virtue of the laws of the State of Illinois, that said city of Zion was then and there at the time said election was so had and held as aforesaid, an incorporated city duly and in due form of law incorporated under and by virtue of the laws of the State of Illinois; that on the day and year last aforesaid and at the time said election was so then and there had and held in said city of Zion, the said City of Zion did not then and there wholly include within its corporate limits any town, and did not then and there wholly include within its corporate limits any towns; that on the day and year last aforesaid in the county aforesaid, one Eeinholdt Becker late of said County of Lake, did then and there wilfully and unlawfully vote at said election, he, the said Eeinholdt Becker, not then and there at the time he so voted at said election being a qualified voter at said election for the reason that at the time said election was so then and there had and held in said city of Zion, on the day and year last aforesaid, he, the said Eeinholdt Becker, had not had any permanent abode in said city of Zion for thirty days next preceding said election, all of which he, the said Eeinholdt Becker, did then and there, at the time he so voted at said election, well know, and he did then and there at the time he so voted at said election well know himself not to be a qualified voter under the laws of the State of lilinois, at said election, contrary to the form of the statute in such case made and provided and against the peace and dignity of the same People of the State of Illinois.” The second count is the same, except there is substituted for the words “permanent abode” the words “leg’al residence.” The third is the same except there is substituted for the words “in said City of Zion for thirty days next preceding said election” the words “in said County of Lake for ninety days next preceding said election.” The fourth is the same as the first, except there is substituted for the words “permanent abode in said City of Zion for thirty days next preceding said election” the words “legal residence in said County of Lake for ninety days next preceding said election.” It is argued that the information is bad in not averring notice of said election; the voting by ballot; that the election was held in accordance with the Australian ballot law; the place where said election was held; that the city council fixed upon a place to hold the same; that the city council appointed judges or clerks to conduct the same, and in being silent as to wards and voting.precincts.

In Johnson v. People, 94 Ill. 505, the indictment contained the allegation “That there was a certain election for trustees and village clerk for the village of Gibson, called and held in pursuance of law therein,” and it was held equivalent to an averment that the election board was legally constituted; also the averment “that J. B. Go shorn had full power and authority to administer the oath as judge of the election” was held to amount to an allegation that the election board was legally organized, because otherwise he would not have been a judge of the election and would not have had such power and authority. It is averred in the information here that1 ‘ There was a general election for the election of city officers of said City of Zion * * * had and held under and by virtue of the laws of the State of Illinois.” -Following the reasoning in the Johnson case, supra, that may be taken as an averment that everything precedent requisite to a • legal election had been done and performed. It is averred that plaintiff in error did “wilfully and unlawfully vote at said election * * * well knowing himself not to be a qualified voter under the laws of the State of Illinois at said election.” That may be taken as an averment that he voted at the place and in the manner designated by law. The averment that he was not a resident of the city, of Zion was certainly equivalent to saying he was not a resident of any part thereof. It was held in Brennan v. People, 113 Ill. App. 361, that the charge in the indictment that one “falsely personated another and voted in his name is to charge, not a legal result, but a fact capable of being ‘easily understood’ by everybody.” The information apprised plaintiff in error with reasonable certainty of the nature of the accusation against him so that he had ample opportunity to prepare his defense. The cases of State v. Bailey, 21 Me. 62; State v. Custer, 28 R. I. 222; State v. Lockbaum, 38 Conn. 400; State v. Marshall, 45 N. H. 281; State v. Boynton, 56 Me. 512; State v. Douglas, 7 Iowa 412; May v. State, 43 Tex. Cr. Rep. 54; Gallagher v. State, 10 Tex. Cr. App. 469; Wharton’s Crim. Law (11th Ed.) vol. 3, p. 2336; McClain on Crim. Law, vol. 2, sec. 942, are authorities sustaining this conclusion, as is also the text and notes in 15 Cyc. 451. We conclude the information was sufficient.

The proof shows that there was only one voting place, and all the city officers, including aldermen, were there voted for by all the voters, without distinction as to wards. The city of Zion was incorporated as a city in April, 1902. Its population shown by the Federal census of 1910 entitled it to eight aldermen, and it should have been divided into four wards if the provisions of chapter 24 of our Bevised Statutes had been complied with. The reason for holding the election in this unusual way is left to conjecture. We are favored with no citation of authority or argument on that feature of the case. It may be that the city has never been divided into wards as provided in section 4, art. IV, of the statute and that successive elections have been held in the manner provided by the statute for the first election after the organization of a city. The record shows that the election of 1910, next preceding the election in question was so held. It may be that the city council first elected, failed to divide the city into wards because it could not agree or because of negligence or carelessness, and that succeeding councils have so failed. We presume that such failure would not make void the city elections, and deprive the voters of their right of suffrage and leave the city without officers authorized to transact its business.

We find from the record before us that the election in question was a valid election as distinguished from a void election.

It is argued that there were many errors in the conduct of the trial. There was no real question before the jury except the condition of the defendant’s mind at the time he voted. In questions arising on the offer and introduction of evidence and the action of the court in giving and refusing instructions much depends upon whether there was any real issue in dispute. If we assume that a nonresident of a city or county, with no question in his own mind as to his place of residence, and no circumstances surrounding him that would raise a question in any reasonable mind about his place of residence, can go into that city or county and vote at an election and defend on the ground that he honestly believed that he had a right to vote there, then there was in this case an issue, but if we assume that such a defense should not be permitted, then there was no real controverted issue presented to the jury. We do not find that this question has been decided in this state, but we are of the opinion that the rule that ignorance of the law excuses no man applies with all its force to cases of the violation of the election laws; that if the voter is aware of a state of facts which disqualify him under the law and is ignorant of the law, he may he convicted of the crime of illegal voting. McCrary on Election, sec. 592. It is said in 15 Gyc. 442: “A guilty intent is a necessary ingredient of the crime of illegal voting, and a person to come within the statute must know at the time of his voting that he is not a qualified voter and that he is doing or attempting to do an unlawful act. It has been held that ignorance of the law will not excuse a voter, but to convict one of illegal voting under the statute it must appear that the voter knew the state of facts which would in point of law disqualify him from voting,” citing McGuire v. State, 7 Humph. (Tenn.) 54. But the author adds “Under a similar statute it was held that a voter is not indictable unless his vote is knowingly cast without right, although he had full knowledge of all the facts in relation to his right to vote,” citing State v. McCumber, 7 R. I. 349. It must be admitted that the authorities are somewhat in conflict on this question. They are quite thoroughly reviewed and discussed in State v. Savre, 129 Iowa 122, 3 L. R. A. (N. S.) 455. In that case the accused was a young man who slept in his office in the third ward in the city of Osage and took his meals in the first ward of said city. He was charged with illegal voting in the first ward and it appeared on the trial that he had been in doubt whether his legal voting place was where he slept or where he took his meals, and under the advice of counsel had determined it in favor of the place where he took his meals, which the court held was wrong and that his home and voting place was in the ward where his office was located and where he slept. The accused testified that he believed that he was a resident of the first ward and voted there with that understanding. The court held that the question of his intention should have been left to the jury and says “The determination of a person’s place of residence is often difficult, and frequently depends upon nice distinctions and complicated questions of law and fact.” But at the same time the court says “This does not mean that a mistake of law will afford any defense, for everyone is presumed to he as familiar with the election laws as with others,” and cites with approval cases holding that the belief of a woman that she had a right to vote is no defense; that the belief of a person, convicted of felony and not pardoned, that he had a right to vote because he was convicted when a minor is no defense; that it did not avail a defendant that he believed he had a right to vote in one district when he knew he had not lived in that district the time required by statute; that it did not avail a defendant, foreign born, that he believed he had a right to vote -without obtaining his second naturalization papers, and the court quotes from McGuire v. State, supra, with approval “If the voter believe himself to be twenty-one years of age, when he is not, and vote, he does not know of the existence of the disqualifying fact and may, on that ground, be excused. But, if he knew that he is only twenty years of age, yet believes he is old enough in point of law to vote, such ignorance of the law will not excuse him. If the voter honestly believe that he has resided six months in the county before the election, and the fact turn out otherwise, he may be excused. But, if he knew that he has been only four months in the county before the election, yet he believes that to reside four months is, in point of law, residence enough, he shall .not be excused.” The authorities are quite thoroughly collected in the notes to 37 L. B. A. (N. S.) 1177, where State of Missouri v. White, 237 Mo. 208, is re-reported, and while they may not all be reconcilable with the position we take, the great majority of them are. See also McClain on Crim. Law, vol. 2, sec. 949.

We do not perceive any substantial difference between the question of intent, mistake of law, ignorance of law, and mistake of fact involved in this and in other criminal cases. The rule is, except in certain statutory offenses, that there must be a criminal intent and in certain cases like larceny, robbery, receiving stolen goods, etc., there must be a specific intent. A man cannot commit larceny of his own goods, or goods that he believes belong to him, and he might not be guilty of stealing a horse that he took under an honest belief that the horse was his property, though it should afterwards turn out that the question of title involved a difficult problem of law that was determined against him. But if he were to confess that he knew it was not his horse and knew he had no title to it, but that he honestly believed as a matter of law that he had a right to take it and drive it away and treat it as his own property, his defense would be absurd. In short, questions of residence, questions of title to property and many other questions that can easily be imagined may arise where one acts honestly under a mistake involving some ignorance of the law and is excused because of such mistake. But to hold that a resident of one county may go into another county and vote without any mistake of fact, and then have the question of his mistake of law submitted to a jury to determine whether or not it was an honest mistake is to entirely ignore the long-established, necessary principle that ignorance of the law excuses no man, and. open the door to endless litigation in all cases where a particular intent is a necessary requisite to the conviction of crime. If the intent in cases arising under election laws be lacking because of a mistake in a mixed question of law and fact, there is some reason and authority for the position that such mistake if honestly made, is a defense, but we see no reason and find little authority for the claim that a mistake of law only, avails a defendant in election cases more than in other criminal cases.

Plaintiff in error entered a plea of not guilty, and then as a witness in his own behalf confessed the crime with which he stood charged. An extensive investigation of the question whether he honestly mistook the law followed. Many questions arising on the introduction of evidence, instructions to the jury and conduct of counsel are argued. The jury found the defendant guilty and we see no possible ground for any other finding, and therefore deem it unnecessary to prolong this opinion by discussing questions so presented, further than to say that we have examined the record with some care and are of the opinion that, even assuming that the evidence introduced bearing on the question whether plaintiff in error did or did not honestly mistake the law is material, we find no substantial error in the admission or exclusion of evidence, the conduct of counsel for the People, or the giving and refusing of instructions by the court.

The judgment is affirmed.

Affirmed.

Mr. Justice Whitney took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Justice Carees

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. John Walker, Plaintiff in Error.
    Gen. No. 5,710.
    1. Elections—illegal voting. A conviction for illegal voting will be sustained where the proof shows a valid election and that defendant was not mistaken about any facts, notwithstanding he may have erred as to the law.
    2. Elections—illegal voting. On a charge of illegal voting, the people need not aver or prove every preliminary requirement of the statute in regard to elections, but an allegation that the offense was committed at a general election, held according to law, stating the time, place and object, is sufficient.
    3. Elections—illegal voting. Where a mayor and other city officials become entitled to their respective offices by reason of an election, such election is within the meaning of the statute prescribing a penalty for illegal voting.
    4. Elections—void primary laws. The rights to office of officials, administering the affairs of a city, cannot be assailed, and their election will not he held void because of their not having been nominated in the manner prescribed by law.
    5. Criminal law—change of venue. In a petition for a change of venue in criminal proceedings, the allegation that there is a prejudice is not sufficient, the question being whether there is in fact a prejudice in the minds of the inhabitants of the county, sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial.
    6. Officers—public, presumed to have performed duty. In the absence of proof to the contrary, public officers are presumed to have done their duty.
    7. Criminal law—change of venue. The traverse of a state’s attorney to a petition for a change of venue on the ground that the inhabitants of the county are prejudiced against the petitioner, need not state that there is no prejudice existing among the inhabitants of the county.
    8. Elections—illegal voting. On a prosecution for illegal voting it is unnecessary to allege and prove that every preliminary requirement of the statute in regard to elections has been complied with.
    Error to the County Court of Lake county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 8, 1913.
    C. P. Babees and Gr. W. Field, for plaintiff in error.
    Balph J. Dady, for defendant in error; Cooke, Pope & Pope and Paul MaoGtueeie, of counsel.
   Mr. Justice Carees

delivered the opinion of the court.

Plaintiff in error was, by information filed in the County Court of Lake county, charged with voting at the city election of Zion City there held April 18, 1911, while not a resident of that city. A jury trial resulted in his conviction and sentence to pay a fine of $250, and to be confined in the county jail fifteen days. The information is substantially the same as in the case of People v. Becker, ante, p. 446, in which case we are filing opinion herewith. The offense is charged at the same election and many of the questions are the same as in that case, and may be briefly disposed of by reference to that opinion. It is not claimed that Walker was at that .time a resident of said city bnt it is claimed he then believed he had a right to vote there and the court submitted that issue to the jury. There is no dispute about the facts relating to his place of residence. He testified in his own behalf that he was born January 20, 1886, moved to Zion City with his parents in January, 1902, lived there a part of the time until April, 1909, when his father, with'whom he lived, removed with his family from Zion City to a farm some distance therefrom, and lived all the time on that or another farm outside Zion City until after the election on April 18, 1911; that he lived with his parents until January 7, 1911, when his mother died and after that he lived with his father for fifteen months before said election, slept and ate on the farm in Benton township where they were living when his mother died. At the presidential election in November, 1908, the family were living’ in Waukegan township; he voted there at that election, which was the only time he ever voted before voting at said city election, which he testified he did, after being challenged and after presenting his affidavit of residence in Zion City to the election officers. He says he always claimed his residence in Zion City and believed he had a right to vote there.

The case was tried at the same term, with the same counsel and before the same judge, as the Becker case, supra. We hold the information good and that the proof shows a valid election for the reasons stated in our opinion in that case; and see little room for distinction between the mistake claimed to have been honestly made in this case and that claimed in the Becker case. Plaintiff in error was not mistaken about any facts. It is true he had once lived in Zion City and his father owned residence property there, but it was rented to a tenant for a long time before this election, and not in any part occupied by the Walker family; they resided in the country on a farm and made no pretense of residing in the city except for the purpose of voting. The father claims to have believed that he had a right to vote there and to have so voted before this election, while he was residing in the country, and told his son that he also had a right to vote there. Plaintiff in error may have so believed, but if he did, he was mistaken on a pure question of law, with no admixture of fact whatever; and the jury found after hearing much evidence and being instructed in substance that an honest mistake of the law would excuse him, that he was guilty of the offense charged.

The information was filed October 9, 1911. On November 23, 1911, there was a stipulation filed in this and twenty-seven other similar cases pending at the same time on motions for change of# venue that affidavits and counter-affidavits might be filed in one of said cases and considered in all, and in accordance therewith the court considered the petition filed in this case supported by 253 affidavits and the traverse of the State’s Attorney supported by 592 affidavits.' The petition alleged that “the inhabitants of said county of Lake are prejudiced against your petitioner so that your petitioner cannot receive a fair and impartial trial of said cause in said court.” The traverse of the State’s Attorney as first filed did not specifically deny the allegation of prejudice on the part of the inhabitants but did allege “that the defendant can have a fair trial in said cause before a jury in said county of Lake.” This traverse was afterwards amended by leave of court by inserting an express statement that “there is no prejudice in the minds of the inhabitants of said county of Lake either against the defendant in the above entitled cause or against any of the other defendants in said County Court charged with voting illegally, or having attempted to vote illegally, at any election ever held in said county of Lake.” Affidavits filed by plaintiff in error contained the averment “that it is the belief of this affiant that the inhabitants of Lake county are so prejudiced against the above named defendant that he cannot receive a fair and impartial trial in the above entitled cause in the said county of Lake.” Affidavits filed by the State’s Attorney contained the averment that affiant is not prejudiced against Wilbur Glenn Voliva, or against his followers and supporters, and that he has never heard anybody express himself as prejudiced against them or any of them.

It appears that Zion City has a population of about 5,000 and is located six miles from Waukegan, the county seat, and that Lake county has a population of about 55,000. The affidavits filed by plaintiff in error were from 187 people residing in Zion City, 54 residing in Waukegan and 12 from other parts of the county. The affidavits filed by the State’s Attorney were from residents of many townships of the county outside of Zion City, 97 of them in Waukegan. It appears from these affidavits that there had existed for some time in Zion City a controversy between the Christian Catholic Apostolic Church known as “Zionites” or “Volivans” and the Christian Catholic Church known as “Independents.” It had been charged that many members of the Christian Catholic Apostolic Church had voted illegally and many other members of that church had attempted to vote illegally at the township election and the city election in April, 1911; that a special grand jury was called in the Circuit Court of said county in May, 1911, and returned 187 indictments charging illegal voting or attempting to vote illegally at one or the other of said elections; that all the defendants in said indictments, except eight or ten, were members of the Christian Catholic Apostolic Church, or affiliated therewith, and that plaintiff in error was one of the parties so indicted and that the same persons so indicted were now before the County Court on informations filed October 9, 1911, and that Voliva and others had been again indicted at the October Term, 1911, of the Circuit Court of said county on charges connected with said election, which indictments were then pending; that the subject-matter of these indictments had been much discussed in private and public places throughout said county and a great number of newspaper articles published in papers having a wide circulation in said county, many of them prejudicial to the Voliva faction. The affidavits and counter-affidavits cover about 1,600 pages of record in this case. Aside from the affidavits showing publication of said articles and the circulation of the papers in which they were published the affidavits filed by plaintiff in error were in two forms, stating in substance that affiant had heard much talk among the people of Lake county as to said prosecution to the effect that the defendants were supporters and followers of Wilbur Glenn Yoliva, and that the conversation was of a kind to convince affiant that there is a strong prejudice in said county “among many of the inhabitants of said county,” not only against Yoliva, but against the defendants named in said information and because of that prejudice affiant believes defendant cannot have a fair and impartial trial, etc. The People’s affidavits are all in the same form and say that affiant may have heard of said criminal prosecutions but knows nothing about the facts, knows none of the defendants, has never expressed or had any opinion as to the guilt or innocence of any of the parties so charged, and has never heard any person express any opinion as to the guilt or innocence of any of the parties so charged; that affiant is not prejudiced against any of said parties and has never heard anyone express himself in any way indicating a prejudice against any of said parties, and that affiant believes the defendant can have a fair and impartial trial, etc.

It is strongly insisted by plaintiff in error that because there is no statement in the counter-affidavits filed by the People, that there is no prejudice existing among the inhabitants of said county, the change of venue should, as a matter of course, have been granted; that plaintiff in error by his affidavit showed there was a prejudice and there is no denial of that fact. Counsel mistake the issue presented. It would not have been sufficient to state in their petition for a change of .venue that there was prejudice. They did there necessarily state that the prejudice was such that petitioner could not receive a fair and impartial trial of said cause in said court. It was for the court to determine, not whether there was a prejudice, but whether there was such a prejudice as to produce the alleged effect. In most criminal trials that attract public attention, ■ there is some prejudice among the people of the county where the crime was committed against the accused. Indeed, in all trials, civil and criminal, it is true as a rule that the allegation of no prejudice could not be sustained. There would be portions of the community that never heard of the parties and consequently had no prejudice for or against, but there would in most cases be, somewhere in the county, some person, and usually some collection of persons, who were prejudiced, perhaps violently prejudiced, against the party. It is apparent that no State’s Attorney could produce affidavits of sensible, reputable people in any case, broader than those furnished here. A man of general acquaintance in his community would be willing to state that he was not prejudiced, and so far as he knew no other person was prejudiced against the defendant, but in a county of 55,000 people, an affidavit would be entirely unworthy of credence, to the effect that there was no prejudice among the inhabitants of that county against the defendant. The question is whether there is in fact a prejudice in the minds of the inhabitants of the county sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial in the county; not whether the evidentiary facts detailed in the petition are proved, but whether upon all the evidence submitted there is reasonable ground for fear that the alleged prejudice actually exists. Jamison v. People, 145 Ill. 357; Price v. People, 131 Ill. 223.

The court did not err in refusing the application for a change of venue.

Many questions are argued in this case which are either the same or similar to those arising on the admission and rejection of evidence, conduct of the People’s counsel, giving and refusing of instructions, in the Becker case, supra. We have given the record quite careful attention and are of the opinion that they should be disposed of as indicated in our opinion in that case.

It is especially objected that the proof does not show there was a primary election and does not show that the candidates voted for, were put in nomination in any way provided by our election law. It is presumed that public officers do their duty in the absence of proof to the contrary. It is not necessary on a charge of illegal voting that the People either aver or prove that every preliminary requirement of the statute in regard to elections has been complied with. It is enough to allege that the offense was committed at a general election, held according to law, stating when and where the election was held and what it was for. Wharton’s Grim. Law (11th Ed.) vol. 3, p. 2336. See also authorities there cited. If the election is held under color of law that is sufficient. McClain on Grim. Law, vol. 2, sec. 942.

It appears from this record that there was an election held in and for Zion City at the time fixed by the statute, at the place appointed by the city council; that over 900 votes were cast for city officers, and while it may be immaterial on the question of the guilt of plaintiff in error, it further appears that the votes were afterwards canvassed and certain officers declared elected. These officers or some of them are presumably administering the affairs of the city by reason of that election. Their right to office could not be assailed if they had been nominated under a void primary law. People v. Strassheim, 240 Ill. 279. And we are not aware of any authority under which the election should be held void if in fact the candidates were not nominated in the manner prescribed by law.

The authorities cited in our opinion in the Becker case, supra, on the question of the sufficiency of the information, include the above citations from Wharton and McClain, and lead to the conclusion that the proof as well as the averment, as to the conditions precedent to, and surrounding the election is sufficient. If a mayor and other city officers became entitled to their respective offices by reason of the election in question, however irregular it may have been, it seems necessarily to follow, that it was an election within the meaning of the statute prescribing a penalty for illegal voting.

The judgment is affirmed.

Affirmed

Mr. Justice Whitney took no part in the decision of this case.


author: Mr. Justice Whitney

text:
    Anton Thomas, Administrator, Appellee, v. George A. Anthony and Clara E. Buchanan, Appellants.
    Gen. No. 5,737.
    1. Death—effect of plea of not guilty. A plea of not guilty in an action for wrongful death, does not put in issue the ownership, possession or operation of the instrumentalities or property which caused the death alleged but a defense based on an intended denial of such allegations in the declaration must be properly pleaded.
    2. Negligence—evidence as to care 6y parents for safety of child which was hilled. It is material to a recovery for the benefit of the next of kin for the death of a child six and one half years old that it should appear from the evidence that the parents were exercising ordinary care for its safety whether such care is alleged in all the counts of the declaration or not.
    3. Pbactice-—when immaterial after verdict whether due care 6y parents of child is alleged in more than one count. In an action by the father as administrator for the death of a child six and one half years old, it is immaterial after verdict for plaintiff whether it is alleged in more than one count that its parents were exercising due care for its safety. ■
    4. Witnesses—competency of wife to testify in her own behalf when husband is interested. The wife of an administrator who brings 'action for the death of his son six and one half years old is a competent witness, where in case of recovery, she will receive a distributive share which will be her separate property though her husband will receive commissions as administrator and an amount as a distributee.
    Appeal from the City Court of Kewanee; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 6, 1913.
    Anderson & Andrews, for appellants.
    Charles E. Mulligan, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Bennie Thomas, six and one-half years old, was drowned while fishing in an old clay pit on certain premises outside of the city of Kewanee, June 21, 1911. This suit was brought against George A. Anthony, Laughlin M. Buchanan and Clara E. Buchanan, by the administrator of the estate of Bennie Thomas, deceased, to recover for the loss suffered by the next of kin under the statute. The suit was dismissed as to Laughlin M. Buchanan, and appellee recovered a verdict and judgment for $1,000 against the other two defendants below and they appeal.

A reversal is urged on four grounds:

1. “The cause of the death of Bennie Thomas was not the attractive nuisance of the pit but the accident was caused aside from that consideration as a moving cause;” that is, that the death was not due to any .negligence of the defendants, and that their negligence was not the proximate cause of the death.

2. The defendants had no such control or right of control over the premises wherein the death occurred as would make them liable as either owners or occupants of the premises.

3. Mrs. Thomas was an incompetent witness.

4. Giving of plaintiff’s instructions and refusal of defendants’ instructions. No other grounds are argued. '

After a review of the evidence we are satisfied that the negligence alleged was fully proven and was the proximate cause of the death alleged.

The plea of not guilty only was filed. In Chicago Union Traction Co. v. Jerka, 227 Ill. 95, and in Carr v. U. S. Silica Co., 153 Ill. App. 511, will be found the authorities holding that the plea of not guilty did not put in issue the ownership, possession or operation of the instrumentalities or property which caused the injury alleged, but that a defense based upon an intended denial of such allegations of the declaration must be properly pleaded.

It was material in this case to show that the parents of Bennie Thomas were exercising due care for his safety. It is alleged in one of the counts of the declaration that deceased was drowned without any fault of his parents, and whether alleged in the other counts or not, it was material to a recovery that it should appear from the evidence that the parents were not guilty of negligence, or that they were exercising ordinary care for the safety of deceased; (Illinois Cent. R. Co. v. Warriner, 229 Ill. 91, aff’g 132 Ill. App. 301; Chicago & A. R. Co. v. Logue, 158 Ill. 621; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370); and whether it is alleged in the other counts of the declaration or not is immaterial after verdict. In fact, it is conceded by appellee that the care or negligence of the mother of Bennie Thomas was an issue in the case.

It is assigned as error that the court erred in admitting Mrs. Anna Thomas, wife of appellee, to testify in this case. Her husband, Anton Thomas, was administrator. It was objected that she was not a competent witness. That objection was overruled. Section 1 of the Evidence Act provides that no person shall be disqualified as a witness in any civil action by reason of his or her interest in the event thereof, except as thereinafter stated. Section 5 provides that no husband or wife shall, by virtue of section' 1 be rendered competent to testify for or against each other except in certain cases, one of which is where the litigation shall be concerning the separate property of the wife. Here, the husband has two interests, namely, the commissions he will receive as administrator in case of a recovery, and the other, the amount he will receive as one of the distributees in case of recovery. The wife has an interest as one of the distributees in case of recovery. In case of recovery, the distributive share of the wife will be her separate property. The case then is that her testimony was both in her own behalf and in behalf of her husband. If this statute means as appellants contend, then in all eases, where the husband and wife are each interested in a suit, either as plaintiff or defendant, and their interests are alike, the wife will be an incompetent witness because her testimony in her own behalf must also be in behalf of her husband. This seems a very harsh result. It is supposed to be supported by Hyman v. Harding, 162 Ill. 357. There the wife and husband were sued jointly. Whether the wife filed any plea does not appear. The husband defended and the wife gave testimony showing that she was liable and seeking to make her husband also liable. There is nothing to show that she sought to defend or resist the debt. The only effect of her evidence was to seek to make her husband liable. It was held that she was not competent to testify against him. We -sought to distinguish that case in Vercler v. Jansen, 96 Ill. App. 328. To the same effect is Kelly v. Hale, 59 Ill. App. 568. While the question is not free from doubt, yet the consequences of holding that the wife is never a competent witness in her own behalf if her husband is also interested in the subject-matter of the suit are so serious that we feel disposed to abide by our decision in Vercler v. Jansen, supra.

We see no reversible error in the giving or refusal of instructions.

Judgment affirmed.

Affirmed.


text:
    The People of the State of Illinois for use of Arthur A. Lowry, Appellant, v. Scott Johnson et al., Appellees.
    Gen. No. 5,766.
    Appeals and ebbobs—what not final judgment. A judgment that defendant recover costs and have execution therefor where plaintiff elects to abide by his demurrer is not a final judgment.
    Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the April term, 1913.
    Dismissed.
    Opinion filed May 6, 1913.
    A. A. Lowry, Pro se.

    A. C. Norton, F. A. Ortman, L. M. Shelly and White, Tuesburg & Wilson, for appellees.
   Mr. Justice Carnes

delivered the opinion of the court.

This is a suit upon a constable’s bond to recover the amount of an execution held by said constable in favor of plaintiff, because he did not return the same within ten days after its proper return day, under section 159 of chapter 79, B. S. The defendants filed four pleas. The first and second were withdrawn and a demurrer by plaintiff to the third and fourth was overruled. He elected to abide by Ms demurrer and there was a judgment that defendants recover their costs of plaintiff and have execution therefor. Plaintiff appeals.

TMs was not a final judgment and an appeal did not lie therefrom. The case is still pending in the court below. This is so completely settled by Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; People v. Board of Education, 236 Ill. 154; Seghetti v. Berry Coal Co., 164 Ill. App. 488, and Ajax-Grieb Rubber Co. v. Gray, ante, p. 377, and in the cases cited in those opinions, that no further discussion is permissible.

The appeal is therefore dismissed with leave to the parties to withdraw the record, abstracts and briefs.

Dismissed.


author: Mr. Justice Higbee

text:
    William T. Bonham, Defendant in Error, v. Winchester Repeating Arms Company, Plaintiff in Error.
    1. Explosives—manufacture of fire arms. Plaintiff lost his left thumb by the bursting of a shot gun and sued the manufacturer of the shell, under warranty, because of its defective condition. Skill and unremitting care were shown in such manufacture, and there was no evidence of defects in the particular shell. Held, that the facts did not warrant recovery of damages.
    2. Explosives—manufacture of fire arms. In an action for damages against a manufacturer of shells for injuries, caused by the bursting of a shot gun, where the evidence tends to show that such accident was due to an obstruction in the gun barrel, and not to any defect in the shell, the jury should have been peremptorily instructed to find the defendant not guilty.
    3. Negligence—res ipsa loquitur. The doctrine of res ipsa loquitur is not applicable unless the thing causing the' accident is under the control of defendant or his servants.
    Error to the Circuit Court of Wayne county; the Hon. Jacob R. Cbeighton, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed with finding of facts.
    Opinion filed March 10, 1913.

      W. F. Bundy, for plaintiff in error; Bristol, Stoddard, Beach & Fuller, of counsel.
    Creighton & Thomas, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

On August 17, 1910, William T. Bonham, defendant in error, lost his left thumb, through the bursting of a shot gun he was firing. He afterwards brought suit against Winchester Repeating Arms Company, plaintiff in error, who had made and placed upon the market the shell he was using, claiming that the bursting of the gun barrel and consequent injury to him was caused by the defective and dangerous construction of the shell used and discharged by him at the time. There were three counts in the declaration. The first alleged, that said company was engaged in the manufacture and sale of loaded shot gun shells, charged with smokeless powder and leaden shot; that it warranted the same not to contain a sufficient quantity of powder or other explosive material, to render them dangerous or unsafe, while fired from a shot gun; that Bonham, relying on the warranty, purchased a box of said shells; that they contained large quantities of nitro glycerine and other high explosives; that they were so defective in their construction as to make them dangerous and unsafe to be used by Bonham in his shot gun; that while he, in the exercise of due care and caution, attempted to fire and discharge one of said shells from his shot gun, said shell, by reason of its defective construction and the large quantity of nitro glycerine and other high explosives contained therein, exploded with great force, tore a hole in the barrel of his shot gun and injured him. The second charged, that said shell contained such large quantities of smokeless powder, and the proportions of the component parts of said powder were so carelessly and improperly mixed, as to render said shell defective and dangerous to Bon-. ham in firing and discharging the same from his shot gun. The third, that said shell contained a quantity of smokeless powder, so carelessly, negligently and defectively made that the nitro glycerine and other high explosive, component parts therein contained, had sweated out of and exuded from its retaining material and thereby the rapidity and force of the explosion of said power had become so accelerated as to render said loaded shell dangerous to one using it, and wholly unfit to be fired in and discharged from any shot gun.

To this declaration the company filed a special plea in abatement to the jurisdiction of the court, stating it was a foreign corporation and that the person upon whom the service of summons had been made held no relation to the company that authorized him to accept or receive service of process. Issues were made up on this plea, a jury waived, and a trial had before the court. The finding was in favor of defendant in error and sustained the service of the summons and thereupon the company filed the general issue to\the declaration. A trial upon the merits was had before a jury which found a verdict in favor of defendant in error for $500, for which amount judgment was given against said company. Plaintiff in error has assigned 31 errors and argued the same under numerous heads, but after a careful consideration of the whole case, we have concluded that it is only necessary for us here to discuss the error assigned on the refusal of the court below to give a peremptory instruction to the jury to find the defendant not guilty at the close of the evidence in the case.

The proofs showed that defendant in error Bonham, a lawyer, living in Fairfield, Illinois, went in a buggy on the morning of the day in question, to his brother’s farm in a neighboring township, accompanied by a young man named Hilas Willis. He took with him an L. O. Smith, double barreled, hammerless shotgun, which he had owned about two years. He also had with him 18 or 20 “Leader” shells taken from a package of 25 he had purchased from a local dealer the previous November. The gun had been cleaned by Willis the evening before and at that time he, his father and several others, looked through the barrels and found there were no obstructions in them. After the gun was cleaned, Willis put it in a case. On the way out to the farm, the gun was not fired but coming back Mr. Bonham, put it together for the purpose of shooting doves and during the afternoon discharged the right hand barrel five or six times with no unusual result. When, however, they had returned to within a short distance of Fairfield, Mr. Bonham got out of the buggy for the purpose of shooting a dove and, walking towards it, fired the right-hand barrel of the gun, but missed. He then for the first time that day fired the left-hand barrel, when the same bursted, 4y2 to 5 inches from the breech end of the gun, making a hole in the barrel about two inches long with ragged edges, extending from the rib on the top of the barrel! around to the underside. It also caused a swelling downward on a part of the barrel, showing a distinct bulge of a ring-like form. The explosion tore off the thumb on the left hand of the defendant in error. The powder used in the shells was known as Du Pont smokeless powder and was not manufactured by plaintiff in error, but was purchased by it from the Du Pont Nemours Powder Company and used by plaintiff in error in manufacturing shells. The powder was what was termed a slow burning powder, as compared with high explosives. It appears to have consisted mostly of gun cotton and was purchased in large quantities by the Winchester Company, which caused each lot purchased to be thoroughly tested in its laboratory. The proofs showed the shells were made in' an automatic machine that stopped in case of any imperfect construction in the course of their manufacture; that cartridges were constantly taken at random from those being manufactured and fired to test whether the material and construction were proper, about 2,000 being fired each day for that purpose. Quite a number of experts in the manufacture and use of powder and fire arms, and skilled workmen, were introduced on the part of plaintiff in error, to show the skill and unremitting care used by it in the manufacture of cartridges and no evidence was introduced to show that any of the cartridges used by Mr. Bonham the day in question, were possessed of any defects of construction. It is claimed, however, by him that the doctrine of res ipsa loquitur applies to this case and therefore that all that was necessary for him to show in proof, was that he purchased the shells manufactured by plaintiff in error, in a sealed box, that when firing one of them, there was an explosion which tore a hole in the gun and injured him.

In the case of Schaller v. Independent Brewing Ass’n, 225 Ill. 492, the death of appellee’s intestate had been caused by an explosion which occurred while he was engaged in varnishing the inside of a beer tank. In order to enable the workmen to see to spread the varnish, it was necessary to have a light in the interior of the tank and an electric lamp attached to an extension cord was used for that purpose. The globe of this lamp appears to have been broken, thereby igniting gases of an explosive and inflammable nature, which were given off from the materials used in varnishing the tank, resulting in the explosion which caused the injury. The declaration charged the association' with negligently failing to furnish and provide reasonably safe light in the tank, and that the explosion and consequent injury resulted therefrom. The position taken by the plaintiff in the trial court, was that the explosion itself was prima facie evidence of negligence of the defendant; that it was not necessary to show that the brewing association was negligent but that it devolved upon the association to show that it was not negligent. A judgment in favor of the plaintiff below was reversed by the Appellate Court and the judgment of the Appellate Court was after-wards affirmed by the Supreme Court. The latter court, in its opinion, quotes approvingly, the language of the Appellate Court, which stated: “But a fatal objection of the application of the doctrine contended for,—the doctrine of res ipsa loquitur,—in this case is, that it is not applied unless the thing causing the accident is under the control of the defendant or his servants, and the electric lamp and its appliances in this case were not under the control of the defendant or its servants. * * * Here defendant only furnished the lamp, its appliances and the current. Wirikofsky (the party who had the contract to do the varnishing) and his servants had the control of the lamp, and they, only, were in the tank when the explosion occurred.”

In this case both the shell, which is claimed to have been defective and the implement used to discharge it, were under the control of defendant in error and an adherence to the doctrine above advanced, which we understand to be the general rule upon the subject, would preclude the application of the doctrine of res ipsa loquitur in this case. But apart from that rule of law, the facts in this record do not appear to us to present a proper case for the application of the doctrine. We cannot say from the proofs in this case that “the thing speaks for itself.” The thought does not necessarily occur to the mind when the bursting of the gun is thought of, that the shell which was shot at the time was defective. Possibly the thought which would most readily occur to most persons is that the bursting of the barrel was due to some defect in the barrel, inherent or otherwise. One of the theories of plaintiff in error is that as the “blow out” occurred beyond the front end of the shell, it must have been caused by an obstruction in the barrel, which in some way found its way into it. There was no positive proof of an obstruction in the barrel, but the testimony of numerous exports introduced by plaintiff in error, showed that a very slight obstruction in a gun barrel might cause an explosion, when a shot was attempted to bé fired from it. A number of shot guns, which plaintiff in error had caused to be experimented with in this manner, were introduced in evidence, showing breaks similar to that in the gun in question here. In fact in one instance, where the obstruction was placed a short distance beyond the shell the result of the firing of the shell occasioned a bursting of the barrel, which was almost identical in every particular in appearance with that shown by the gun which caused the injury. Persons were also introduced as witnesses who made shooting their occupation and who were expert shots, and also others who were engaged as a business in testing shells. These witnesses stated they had seen thousands upon thousands of shells fired and never knew of one bursting a gun barrel, unless there was an obstruction in the barrel.

Upon the whole case, we are of opinion that the facts even if taken most strongly against plaintiff in error, did not tend to make out a case entitling defendant in error to a recovery, and that the peremptory instructions offered by the former at the close of all the evidence, directing the jury to find it not guilty, should have been given.

The judgment of the court below will therefore be reversed.

Reversed with finding of fdcts.

Finding of facts to be incorporated in the judgment: We find the proofs in this case do not tend to establish the negligence charged against plaintiff in error in the declaration.


text:
    Gustave Layher, Appellee, v. Chicago-Sandoval Coal Company, Appellant.
    1. Mines and miners—statutory and common-law liability of mine owner. Plaintiff, a fireman, was injured by coal being dumped into a chute in a coal mine, without warning, and filed counts under the common law and the statute, charging negligence of the mining-company in failing to provide a reasonably safe place for work and in not giving warning, and because such mode of dumping coal created dangerous conditions requiring danger marks. Held, that the questions of the company’s negligence, the exercise of ordinary care by plaintiff, and of whether such injury was one of the risks incident to his employment, were for the jury.
    2. Mines and miners—violation of statutes regulating. Plaintiff’s cause of action, under section 18 of the mining act of 1899, as amended, in force previously to the act going into effect July 1, 1911, held, plainly established in suit brought after passage of such new act.
    3. Mines and miners—violation of statutes regulating. An instruction regarding “wilful negligence” and violation of the mining act in force previously to the passage of the act of 1911, to the effect that plaintiff’s contributory negligence is not a defense, held, not misleading.
    4. Statutes—rights accruing under act repealed. Where plaintiff’s right of action accrues under a mining statute before the passage of a repealing act, he is entitled to avail himself of the provisions of such act as to the duties of his employer, though his action is brought after the repeal.
    5. Statutes—rights accruing under act repealed. Rights accruing under a statute which is repealed without a saving clause are preserved under section 4 of chapter 131 of the Illinois Revised Statutes, providing that no new law should be construed to repeal a -former law as to any right arising under such law.
    Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding. Heard in this court at. the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Noleman & Smith and W. F. Bundy, for appellant.
    L. B. Skipper and Charles F. Deiy, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court,

Appellee, while in the employ of appellant, as a fireman in the engine room at its mine at Sandoval, Illinois, on the 9th day of January, 1911, was injured by being struck by coal which was dumped down a coal chute into said engine room for the purpose of supplying fuel for the boilers. Suit was brought by appellee against appellant and the cause was tried at the January Term, 1912, of the Circuit Court of Marion county, resulting in a verdict and judgment in favor of appellee, for $500.

Prior to the time of his injury appellee was employed at the surface of appellant’s mine as a fireman, working on the night shift and quitting about 7:30 o’clock in the morning. The boiler room was a building 40 feet by 60 feet in area and had originally contained five boilers. At the time of the trial, however, two of the boilers had been removed. All the boilers faced the north and in front of them was a passageway five feet in width, extending the entire length of the boiler room, which was used by the employes in passing from one boiler to another. Between the west boiler known as No. 1 and boiler No. 2 on the east of it, there was a space about 25 feet wide from which one of the original boilers had been removed. In this space was a feed pump which supplied the boilers with water and the rest of it appears to have been used as a coal bin for storing fuel for the boiler room, with an estimated capacity from 20 to 30 tons of coal. There were two or three partitions from three to five feet high, extending south at right angles from the north wall to the five foot passage way, to retain the coal when thrown into the boiler room through windows on the north from wagons. But there was no retaining wall or partition between the bins thus created, and the five foot passage way, the bins being left open for convenience in shoveling coal from them to be used in the boilers. These bins on the north of the passage way were never used, except when this shaft was not hoisting coal and it was necessary to supply the boilers by hauling coal in wagons from another one of appellant’s shafts. Some six months prior to the time of the injury, appellant constructed a coal chute some 36 feet long, 6 or 7 feet wide with side boards some 2 feet high, extending from the tramway over which pit cars, from this shaft could be pushed, at an agle of about 45 degrees, down to within about 8 feet of the boiler room, into the coal bin between the two boilers. The point where the coal dropped from the coal chute to the floor, was about 8 feet south of the five foot passage way and the same distance north of the south wall. The bin in which it emptied was open on the north towards the passage way, and when it was empty, the coal would often come down the chute with such momentum as to be thrown over and upon the passage way, and even at times strike the north wall of the building, some 12 feet from the bin. When the bin was filled to about the height of the chute, the coal coming down, would be checked by the pile in front of it and forced towards the south wall. The mine was not operated at night for the purpose of hoisting coal and therefore no coal was poured down the chute into the bin, except during the working hours of the day between 8 o ’clock a. m. and 4:30 p. m., during which time enough coal would be dumped into the bin to keep the boilers going for 24 hours. The firemen tending the boilers worked in three shifts. It was the ordinary custom when' coal was turned into the chute above, for the party flumping the coal to shout some word of warning, but this custom was not followed in every instance. During the two years of appellee’s service there had never been any coal thrown into the coal bin during the night time. On the day of the injury, appellee had been transferred to the day shift to take the place of a day fireman, who was doing jury duty. He was not warned or informed of any new or additional danger there might be attending his day work, by reason of coal coming down through the chute. When the mine was running, the noises attendant upon its operation, including those of the system controlling the passage of the cages up and down in the shaft, the exhaust of steam, the dumping of coal, the running of cars on the tramway, the conveying of coal along the passage way and transferring it into the fire boxes, made it difficult for a fireman of ordinary hearing to notice any warning which might be given when coal was about to be turned into the chute and this was especially true in the case of appellee, who was hard of hearing. At the time appellee was injured, he was engaged in shoveling coal from the floor of the bin into which the chute emptied, into a wheelbarrow, when a large quantity of coal was dumped into the chute, without any warning and a portion of it struck him with great violence and injured his leg and foot. His leg was skinned, his instep cut across, the ligaments of his foot mashed and the bones of the foot broken.

The declaration consisted of one common law and two statutory counts. The common law count alleged that appellee had no knowledge of the manner in which the chute was used in the day time or nature of the warning to be observed; that it was the duty of appellant in transferring him to the new shift, to furnish blm with a reasonably safe place in which to work and use reasonable care to warn him of the new and additional danger incident to employment in the day time caused by the dumping of great quantities of coal from a great height through the chute, and that appellant carelessly and negligently dumped a large quantity of coal down the chute upon appellee without any warning and injured him.

The statutory counts were drawn under section 18 in relation to mines and miners, as amended in 1907. It averred that the act of dumping coal into the chute at the times and in the manner it was accustomed to be done, created dangerous conditions in appellee’s working place, which could have been determined by appellant from proper and careful inspection; that appellant’s mine examiner could have observed the dangerous condition existing and should have done so and have placed a conspicuous mark thereat and reported his finding to the mine manager; that appellee should not have been permitted to enter the boiler room without the direction of the mine manager, while such dangerous and unsafe condition existed at and near said coal chute.

Appellant contends that the evidence in the record conclusively shows there was no cause of action under the common law count of the declaration; that the statutory counts do not state a cause of action and the proofs show the boiler room in question was not such a place as either required a danger mark to be placed thereat, or required appellant to restrain appellee from entering as provided by the miners act; that the right of appellee to recover under said second and third counts was purely a statutory right which was repealed by the amendment of 1911; that the court admitted improper evidence on the part of appellee and erred in regard to the instructions. At the close of appellee’s evidence, appellant offered a peremptory instruction to the jury to find it not guilty, which was refused by the court, and thereupon appellant announced that it would offer no evidence in the cause.

The proofs upon examination appears to us to disclose conditions which made it imperative upon the court to refuse appellant’s peremptory instruction. The question as to whether or not appellant was guilty of the negligence charged and whether appellee was in the exercise of ordinary care for his own safety at the time he was injured and also whether the danger of injury from coal coming down the chute in the day time was one of the risks incident to appellee’s employment which he assumed, were not only properly questions of fact to be submitted to the jury but the proofs also presented a case which appears to us to have entitled appellee to a verdict in his favor. The place where appellee was employed, was plainly a dangerous one during the day time while coal was being-sent down the chute and especially so for the reason that the times when the coal would be so dumped, were uncertain. No marks or warning were placed at or near the danger point and appellee was permitted to enter upon his work while the unsafe condition existed, not under the direction of the mine manager and with no notice from the mine manager or any one else of the danger to which he was being- subjected.

Appellee’s proofs plainly made a case under the statutory counts of the declaration by virtue of section 18 of the Mining Act as amended in 1907. Appellee was injured on January 9, 1911, and on July 1, 1911, a new act went into effect, revising the laws in relation to coal mines and repealing the act above referred to. Under the new act the duties of the mine examiner are materially changed and it is claimed by appellant that under this law appellant was not required to cause its examiner to place marks as signals of danger at the place where appellee was injured. Waiving the question as to whether the construction placed upon the new law by appellant is correct, we are of opinion that appellee’s cause of action having accrued to him under the old law, his rights must be determined under the law as it then stood, notwithstanding the fact that the suit was not brought until September 15, 1911, after the new law had gone into effect.

The act of 1911 in relation to coal mines and subjects relating thereto, was intended in the main to cover the subjects included under the former act of 1899 with the same title and acts amendatory thereof, and followed somewhat the same lines; the later act repealed the former without any saving clause as to accrued rights. Upon the general question as to whether such a repealing act destroys all rights which had accrued under the former act, we find there is a conflict in the authorities. It is plain that in many cases hardships might ensue and injustice be done if accrued rights should be thus destroyed. It was probably to meet such situations that section 4 of chapter 131 of our Bevised Statutes, was enacted by our general assembly, providing that: “No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to effect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or b^ implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.”

This court, in Chicago, P. & St. L. R. Co. v. People, 136 Ill. App. 2, where the same subject was under consideration, stated we were of opinion that as the law stood in this state, where the repealing act or order contains no saving clause, the section of the law above quoted stands as a saving clause. See also Jefferson Theatre Program Co. v. Crejczyk, 125 Ill. App. 1.

As appellee’s right of action had accrued before the passage of the repealing act, we conclude he was entitled in this suit to avail himself of the provisions of the act in force when he was injured as to the duties owed to him by appellant. Appellee stated on the trial that he had become liable to pay his nurse $50, and appellant moved to strike out the answer for the reason there was nothing* in the declaration on which to base a claim for services of a nurse. Complaint is made by appellant that the court overruled this motion. It appears, however, that leave was given appellee to amend his declaration in that regard and as it appears in the abstract before us, the declaration contains a statement including nurse hire among other liabilities incurred by appellee in consequence of his injury.

Nearly all of the criticisms made by appellant in regard to the court’s rulings upon instructions, are based upon its theory that as this suit was brought since the passage of the repealing act above referred to, appellee could not avail himself of his right of action which had accrued under the former law, and are disposed of by what we have above said. Additional criticism is made however of appellee’s fourth given instruction which told the jury that if appellant was guilty of wilful negligence as charged in the additional counts of the declaration, then and in that case the contributory negligence of appellee, if any, was not a defense to such counts. It is claimed that this instruction is in violation of the rule laid down in the case of Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41, where it was held, that the action given by the statute was for a wilful violation of its provisions and there must be something more than mere negligence; that wilful violation by a mine operator of a provision of the mining statute means a conscious failure to observe it. While the term wilful negligence is somewhat of a misnomer, as it is attempted to be here applied and the instruction might well have been more carefully drawn in that particular, yet it is plain that it was the intention of the instruction to refer to the wilful violation of the statute, charged in the counts of the declaration referred to and the jury could not have been misled thereby.

The judgment of the court below will be affirmed.

Affirmed.

Mr. Justice McBride, having tried this case in the court below, took no part here.


text:
    Joseph LaValle, Supervisor, Plaintiff in Error, v. Cora Droit and Cora Droit, Executrix, Defendants in Error.
    1. Wills—devise of trust fund for payment of debts. On a bill in equity for accounting against the widow, individually and as executrix of a deceased village supervisor, for moneys received by him from the sale of real estate belonging to the village, where the will devised property to the widow and directed her to pay all just and lawful debts of deceased, she must be assumed in law to have individually taken such property in trust, charged with such burdens and for the satisfaction of the debts of deceased. '
    2. Wills—devise of trust fund for payment of debts. The acceptance of a gift in a will, providing that the donee is to pay debts of the testator, creates a personal liability of the donee upon which action may be maintained.
    3. Wills—devise of trust fund for payment of debts. An heir, accepting a devise under a will, which directs the payment of a legacy, becomes personally bound to pay the same, even where the devise proves to be less in value than the legacy, and payment can be enforced in a suit in equity against the real estate or by a common-law action directly against the devisee on promise implied by the acceptance of the devise.
    4. Wills—devise of trust fund for payment of debts. Provisions in a will, consistent with an intention on the part of the testator to have his debts paid in the usual course of administration, are not sufficient to raise a trust in favor of creditors, but when he specially charges the payment of his debts upon a particular fund, a trust is created, as against the devisee accepting such fund, in favor of the creditors.

      Error to the Circuit Court of St. Clair county; the Hon. Geoege A. Cbow, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Wiukelmahh & Ogle, for plaintiff in error.
    D. J. Sullivah, for defendants in error.
   Mr. Justice Higbee

delivered the opinion of the court.

Plaintiff in error filed his bill in equity averring that Camille W. Droit in the year 1900 was elected and qualified supervisor of the village of OahoMa for the term of two years and that in March, 1902, he was again elected and qualified as such supervisor and so remained until March 7, 1906; that during his terms of office, he, by virtue of his office, sold and conveyed lands belonging to the inhabitants of said village to various purchasers, for which he received the purchase money amounting in the aggregate to the sum of $3,795.85.

It was further averred that his successors in office, including plaintiff in error, demanded an accounting from him for said purchase moneys but that he failed and refused to account for and pay over the same.

It was further alleged in the bill that said Camille W. Droit on the 23rd day of November, 1907, died testate leaving a will which was admitted to probate, in which he devised to his wife Cora Droit all his real and personal property by the following provision, to-wit; “I bequeath to my beloved wife Cora Droit, nee Elinsky, all my real and personal property to have and to hold and possess without restriction except that she has to pay out of this real estate and personal property all my just and lawful debts, including two hundred dollars which I promised and have not yet paid to the Roman Catholic Church and congregation of the Holy Family of Cahokia, St= Clair county, Illinois.”

It was further averred that Cora Droit was appointed executrix of the estate of said Camille W. Droit on December 10, 1907; that she duly qualified and entered upon the discharge of her duties; that the testator died seized of real and personal estate which said Cora accepted and took under the provisions of said will, and was receiving the benefit thereof.

The bill, prays an accounting of the moneys received by said testator as supervisor and that plaintiff in error have a lien on the land devised by said will to Cora Droit for the amount found due. The bill made Cora Droit individually and as executrix of the will, parties defendant and in such several rights she interposed demurrers to the bill. The court sustained the demurrers for want of equity and adjudged the costs against plaintiff in error and such action is assigned by him as error in this court.

The bill is based upon the theory that the aforesaid provision of the will made all of the testator’s debts a charge upon the property devised to appellee en-forcible in a court of equity and that appellee took such property subject thereto. It is not alleged any claim was ever filed in the Probate Court against the estate of the testator to recover therefrom the moneys claimed in this proceeding. In plain language the will indicates the intention of the testator in two respects, one was to devise to his wife, Cora Droit, all bis property both real and personal, which description was sufficient to pass the title to all the property he possessed at the time of his death, without a more minute or particular description of the same. Wilson v. Boyce, 92 U. S. 325; Knowlton v. Dolan, 151 Ind. 81. The other was, that she should have, hold and possess such property without restriction, except that out of the same, she must pay all of the testator’s just and lawful debts. Mrs. Droit, the devisee, took possession of the property after the death of her husband and in so doing, must be assumed in law, to have taken it charged with the burden placed upon it by the will. It is true the will named Cora Proit as executrix but the direction given was not that she pay the testator’s debts as executrix, but that she receive the property in person and that personally she was. to pay said debts put of such property.

In Brown v. Knapp, 79 N. Y. 136, it is said: “It is well settled that when a legacy is given and is directed to be paid by the person to whom real estate is devised, such real estate is charged with the payment of the legacy and the rule is the same when the legacy is directed to be paid by the executor, who is the devisee of real estate. If the devisee in such case accepts the devise, he becomes personally bound to pay the legacy and he becomes thus bound even if the land devised to him proves to be less in value than the amount of the légacy. If he desires to escape responsibility, he must refuse to accept the devise, if he does accept, he becomes bound to pay the whole amount of the legacy, which he is directed to pay. * * * The payment of such a legacy, can be enforced by a suit in equity against the real estate or by a common law action directly against the devisee upon the implied promise to pay it—a promise implied by his acceptance of the devise.”

In Gridley v. Gridley, 24 N. Y. 130, where a will gave all the testator’s real and personal estate to a person with a provision that the donee was to pay all the testator’s debts, and a certain annuity, it was held that the acceptance of the gift and the taking possession of the property devised, created a personal liability of the donee, upon which an action might be maintained. Along the same lines is the case of Fuller v. McEwen, reported in 17 Ohio St. 288. In that case the will directed that all the just and lawful debts and liabilities of the testator, be first paid and subsequently contained the following provision: “I give and bequeath to my son Alexander Fuller all the residue of my property, both real and personal, ont of which it is my will that he pay all my just debts.” In the course of the opinion in that case it is said, “The original action is brought against the defendant below, not in his capacity and character of executor of his father’s will; not for the enforcement of the execution of a trust attaching to property bequeathed to him in trust for the payment of the amount due on the note remaining in the hands of the plaintiff below; but against the defendant below in his individual capacity on his promise implied by, and his obligations resulting from, his acceptance of the residuary bequests charged with the payment of all the debts of the estate. That the plaintiff below might have maintained an action if prosecuted in due time against the defendant below, as executor of the will on the note, is very clear and that he could have gone into equity and charged the residuary bequests as being held by the defendant below in trust for the payment of the note, is equally clear.” And it was also further said, that the plaintiff below had the right to bring his action “against the legatee in his individual capacity on his personal obligation and promise implied by law from his acceptance of the bequest charged by the will with the payment of the debts.”

Defendants in error contend that in order to subject the property of the testator to the payment of debts, claims for the same should have been first filed and allowed in probate. The holding of the Supreme Court of this state in Harris v. Douglas, 64 Ill. 466, to the effect, that certain words of the will there in controversy were used with reference to the provision of the statute and simply meant that the debts of the testator were to be paid in due course of administration and under direction of the County Court, is relied on by defendants in error to support their contention. In that case, however, the provisions of the will relied on, were that the debts of the testator should be paid out of any money he might have, and that so much of the property real and personal, at the discretion of his executor, should be sold, as should be necessary to pay his debts; that after the payment of said debts all the residue of his property, personal and real, should be divided in two equal parts, one part of which should belong to his children and the other to his wife. The language there used is manifestly different from the language used in the will of the testator Droit, where he bequeathed to - his wife, all his real and personal property with a restriction amounting to a condition that she pay out of the same, all his just and lawful debts. While it is true that loose expressions in a will, consistent with an intention on the part of a testator to have said debts paid in the usual course of administration or general provisions for the payment of such debts, are not sufficient to raise a trust in favor of creditors, yet where the testator specifically charges the payment of his debts upon a fund named by him, a trust is created as against the devisee taking the fund so charged, in favor of the testator’s creditors. It clearly appears from the will in this case, that it was the intention of the testator, his wife should take all of his property real and personal, as a fund charged with the payment of all his debts and she must therefore be held to have received the property in trust so far as may be necessary for the satisfaction of such debts.

The court below should have overruled the demurrer of defendants in error to the bill of complaint and its order sustaining the demurrer and dismissing complainant’s bill of complaint for want of equity with costs adjudged against him, will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed cmd remanded.


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    Montpelier Cup & Metal Works, Appellee, v. J. E. Dilsaver et al., Appellants.
    1. Receivers—compensation. A receiver appointed to manage property until it is redeemed if sold under the decree to satisfy a debt, is entitled to reasonable compensation for his services and to money reasonably expended in the care and operation of the property, only to the time of a demand for possession made by the owner after the debt is discharged.
    2. Receivers—recovery of solicitor’s fees. Where a receiver was appointed to manage property until redeemed if sold under the decree to pay a debt, he is entitled to recover his reasonable solicitor’s fees to the time that a court order was entered removing him, when he refused to surrender possession to the owner on demand after the debt was discharged and was removed by the court on petition of such owner.
    Appeal from the Circuit Court of Perry county; the Hon. Robert T. Cook, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 10, 1913.
    Sprigg & Gilster and W. A. Schwartz, for appellant.
    B. W. Pope and W. O. Edwards, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

No rights of the Montpelier Oup & Metal' Works, the nominal appellee, are involved in this appeal, but the controversy is between J. E. Dilsaver and others, who are the owners of certain property against which appellee filed a bill for a mechanic’s lien and S. B. Haines, who was appointed receiver of the same. At the time the bill was filed, the property was owned by appellant Dilsaver and consisted of certain real estate in the town of Tamaroa, Perry county, Illinois, on which was located a flouring mill, for which appellee had furnished certain machinery and equipment. Two mortgages were also foreclosed in the same proceedings. At the May Term, 1910, of the Circuit Court of said county, a decree was entered, finding there was due appellee, the sum of $2,000, and the two mortgages the sums of $300 and $650 respectively, together with interest on said mortgage debts, and decreeing and ordering a sale of the premises to satisfy the debts. The decree appointed Samuel E. Haines receiver “to take charge of and to rent, collect rents, operate, control and manage said property aforesaid, after giving bond in the sum of $6,000 to be approved by the circuit clerk, with full power to act and do whatsoever may be necessary to properly protect the interests of all parties interested therein, until such time as said property shall be redeemed if sold under this decree, or until the further order of this court.” Tinder the decree the property was sold for an amount sufficient to pay the debt, interest and costs, not including therein any compensation for the receiver or reimbursement for moneys expended by him in the care of the property. S. E. Haines, the receiver, became the purchaser at the sale. Sometime after the sale, Dilsaver made a written demand on the receiver for the possession of the property which was refused and later, on July 25,1911, he filed a petition asking for the removal of the receiver, on the ground that the property had been sold for the full amount of the debt, interest and cost, and that therefore the necessity for continuing said receiver in office had ceased. The receiver resisted the application for his removal, but on August 11, 1911, a decree was entered, finding that Dilsaver was entitled to the possession of the premises, removing and discharging the receiver and directing him to turn the property over to Dilsaver. It was also further decreed that the order of approval of the receiver’s report entered at a previous term of the court be vacated and that the matter of the receiver’s report be reserved for future consideration of the court. From that decree an appeal was taken by the receiver Haines, to this court where the record was reviewed at the Octoher term, 1911. Montpelier Cup & Metal Works v. Dilsaver, 169 Ill. App. 279. On that appeal we approved that portion of the decree which ordered the discharge of the receiver, but modified it so as to give the receiver a lien upon the property therein described, to secure him in his proper charges and compensation as receiver, which he might thereafter be found entitled to receive. Afterwards, on May 28, 1912, a decree was entered in the Circuit Court, approving the final report of the receiver, and allowing him the sum of $2,534 for money expended and advanced by bim in the administration of the property, in pursuance of the order of the court appointing him and an additional sum of $450 for services as such receiver, together with $200 as solicitor’s fees, making a total of $3,184; which amount was ordered to be paid by appellant Dilsaver, within a short time fixed by the court and in default thereof it was decreed that the property be sold by the master in chancery to satisfy the same. From that decree this appeal is prosecuted and the question presented is whether or not the court erred in fixing the amount allowed the receiver.

This court held when the case was here before that there was no further need of a receiver, after the indebtedness had been discharged, but he refused to surrender possession thereof and contested the right of Dilsaver to such possession until after the right of Dilsaver to possession had been confirmed by this court at its October Term, 1911. During the time the receiver held the property, he conducted the milling operations at considerable loss. There was no good reason in law or equity why he should continue to hold the property and conduct the business after the debt was paid. The manifest impropriety of his continuing to operate the mill therafter is shown by the fact that while the total amount of the original debt, interest and costs not including the costs of the receivership, at the time of the sale, was $3,139.19, the receiver is allowed by the order here appealed from, the sum of $3,184 for money expended by him on the property, his compensation and solicitor’s fees, nearly all of which amount, as appears from the proofs, was for expenses incurred and services rendered after the property had been sold and the indebtedness paid.

The receiver was entitled to a reasonable compensation for his services prior to the date of the demand made upon him by Dilsaver for possession of the premises and to be reimbursed for such sums as were reasonably expended by him in the care and operation of the property during the same period but not after-wards. He is also entitled to recover his reasonable solicitor’s fees up to the time the court below entered the order removing him.

The decree is therefore reversed and the cause remanded with directions to the court below, to ascertain the amount due the receiver in accordance with the views above expressed, to make such amount a lien upon said premises and direct the sale of the same to satisfy the debt, if not paid within a reasonable time to be fixed by the court.

Reversed cmd remanded with directions.


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    Margaret J. Miekley, Appellee, v. General Roofing Manufacturing Company, Appellant.
    1. Damages—permanent injury to realty. Where damages are sought for the permanent injury to realty caused by flooding, the measure thereof is the difference in the fair market value of the premises before and after the injury, and evidence not bearing on that question is incompetent.
    2. Damages—what evidence improper in action for damages to realty. Whether an action for damages to realty by flooding is for temporary damages or for the permanent injury, it is error to admit evidence of the inconvenience suffered by plaintiff’s tenants as- bearing on the measure of damages.

      Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Carter, Collins, Jones & Barker and Whitnel, Browning & Gillespie, for appellant.
    M. Y. Joyce and A. B. Garrett, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit against, appellant to recover damages to real estate owned by her, relying upon the following facts as shown by the proofs: She is the owner of two lots in East St. Louis, Illinois, on which is a two-story brick building, divided into four living apartments. The building had a frontage of 50 feet on Broadway, lying north of it, and ran back 126 feet to an alley covering both of the lots. The property was located in the block between Seventeenth and Eighteenth streets and between it and Seventeenth street on the west, there was one lot and it was vacant. Across the alley on the south and extending from Seventeenth to Eighteenth street, was appellant’s plant, where it manufactured roofing and building papers. About midway along the alley, appellant had constructed a catch basin for the purpose of catching water from a trough and an exhaust pipe coming from the plant. This catch basin is connected with a sewer" built by appellant, and extending from it to a man hole at the corner of the alley and Seventeenth street, from whence another sewer runs to Broadway to another manhole. There is also another ditch which runs diagonally across the vacant lot west of appellee’s property from near the catch basin to the last named manhole.

Appellant uses large quantities of water in its manufacturing processes and when the plant was in operation, a million to a million and a half gallons of water were discharged every twenty-four hours into the sewer at the catch basin. It was claimed by appellee that the sewer and open ditch above referred to, were unable to carry off this water and that the same overflowed the vacant grounds adjacent to her premises, flooded the cellar and basement underneath her flat building and overflowed the alley in the rear of her premises to a depth of two feet; that by reason thereof the woodwork and floors of said building have become rotted and decayed and the building otherwise damaged; that on account of said flooding, appellee cannot obtain tenants to occupy the building and has lost rents which she might otherwise have obtained for the same, to the amount of $500 a year for the space of five years; also that she has thereby been deprived of her ability to sell said premises and the value of the same has been destroyed.

The jury returned a verdict in favor of appellee of $1,200, and the court entered a judgment for that amount. It is rather difficult to ascertain from the declaration, whether plaintiff was suing for temporary damages occasioned by loss of rent, or for the permanent injury to the freehold, but as the damages claimed in the declaration, were $8,000, we assume that her suit was intended to cover permanent damages. Upon the trial, appellee was permitted, over objection of counsel for appellant, to introduce testimony as to the amount of rent she had been deprived of, by reason of the flooding of her premises and her consequent loss of income from that source. Also that her tenants were at times deprived of the use of their back yards and sheds and that they could not keep any coal in their cellars and suffered other inconveniences and annoyances. She was also permitted to show how much the property had depreciated in value by reason of such injury.

In pursuance of the theory which admitted this evidence the court gave instruction No. 1 for plaintiff, which was as follows: “The court instructs the jury that if you believe from the preponderance of the evidence in this case, that the defendant discharged or caused to be discharged from its plant or premises, large quantities of water in such manner that the same flooded the plaintiff’s said premises, and if you further believe from the evidence that the plaintiff was injured in her possession and in the use and enjoyment of her said premises and that she was injured in her income, derived from her said property, and that the sale value of said property has depreciated by reason of the flooding of said premises, then in such case your verdict should be for the plaintiff.” The theory adopted by the court in admitting the above evidence and in giving the said instruction, appears to contemplate the right of appellee to recover both for her loss of rents and other temporary injuries and also for permanent injury to the property. If we treat the declaration as intended to present a case for permanent damages, then the measure of damages was the difference in the fair market value of the premises before and after the injury to the same, and evidence not bearing upon that question would be incompetent. Kankakee & S. R. Co. v. Horan, 131 Ill. 288; Sanitary Dist. of Chicago v. Herbert, 108 Ill. App. 532; Same v. Pearce, 110 Ill. App. 592; Sterling Hydraulic Co. v. Galt, 81 Ill. App. 600.

In any event it was error to admit evidence of the inconvenience suffered by appellee’s tenants as bearing upon the question of the amount of damages appellee was entitled to recover. In City of Dixon v. Baker, 65 Ill. 518, which was an action against the city to recover damages for flowing surface water, upon a lot by raising the grade of a street and sidewalk, it was said, £ £ The plaintiff had no right to recover damages for inconvenience to his tenants, or injury to other personal property. He could only recover for injury to the building or premises, or loss sustained by him in consequence of the flowage of the water. The damages caused by loss or inconvenience to others, appertains wholly to them.”

For the errors in the trial of this case above indicated, the judgment will be reversed and the cause remanded.

Reversed and remanded.