text:
    The People of the State of Illinois, Defendant in Error, v. Walter Krause, Plaintiff in Error.
    Gen. No. 6,070.
    1. Criminal law, § 219

      —when failure of prosecution to furnish names of witnesses harmless. In an indictment for unlawful selling of liquor on Sunday, the refusal of the State’s Attorney to furnish to defendant information as to the place of residence of witnesses indorsed on the indictment is harmless, where defendant’s counsel had full opportunity through the presence of such witnesses at other trials in the same court to investigate or interview them before the taking of proofs in defendant’s case began.

      2. Continuance, § 84

      —when affidavit for continuance on ground of absence of witness insufficient. Where application is made for a continuance because of the absence of a material witness who is out of the State and beyond the reach or process of the court, it is necessary that the affidavit show the grounds of a reasonable expectation that the absent witness will return to the State by the next term of the court and that it deny defendant’s guilt in positive terms.
    3. Jury, § 47

      —when names of women properly omitted. The names of women voters in the several towns are properly omitted by the county board in making its lists of jurors.
    4. Intoxicating liquors, § 130

      —what degree of proof essential in prosecution for unlawful sale. To convict one on an indictment for selling intoxicating liquor on Sunday, it is not sufficient that the jury find that the defense was fabricated, but before the defendant can be found guilty his guilt must be established beyond a reasonable doubt.
    5. Intoxicating liquors, § 147

      —when evidence insufficient to show unlawful sale. On an indictment for selling intoxicating liquor on Sunday, evidence examined and held insufficient to show that defendant was guilty of the offense charged.
    Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    E. Y. Orvis and James G. Welch, for plaintiff in error.
    R. J. Dady and E. M. Runyard, for defendant in error.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Walter and Stephen Krause were jointly indicted by the grand jury of Lake county for unlawfully selling liquor on Sunday. The case was certified to the County Court for process and trial. The indictment was afterwards nolle grossed as to Stephen Krause. After certain preliminary matters there was a change of venue from the county judge of Lake county, and another judge took charge of and tried the case.

Defendant was convicted by a jury under the fifth, sixth and seventh counts of the indictment and was fined thereunder, and was ordered imprisoned to work out the fine if it was not paid, and has sued out this writ of error to review that judgment.

There was a motion for a bill of particulars and the State’s Attorney filed a bill of particulars, giving the dates be would rely upon. The defendant moved for a more specific bill of particulars and this motion was denied. The affidavit for the bill of particulars stated that the affiants had endeavored to learn as much as possible about T. W. Youngs and W. F. Youngs, the only witnesses whose names were indorsed upon the back of the indictment, and that defendant was informed that they were detectives and would testify against defendant; that in fact said witnesses did not buy any intoxicating liquor of defendant; that defendant did not know where said witnesses resided and had applied to the State’s Attorney for their place of residence and the State’s Attorney had refused to furnish that to them. We are of opinion that the State’s Attorney should have been required to furnish the defendant with the place of residence of said witnesses, so that the defendant might be able to interview said witnesses, or to investigate their character and standing, before the trial. But it appeared during the trial that prior to the trial of this case at least two. other cases against saloon keepers for like offenses had been tried in the same court, •and that these two witnesses had testified for the People in those cases and that the attorneys for the defendant here knew what they had testified to in those other cases and therefore knew what it was necessary for them to know about said witnesses in order to prepare for this trial. How long those trials occurred before this does not appear, but this trial began on July 3, 1914, and was then adjourned to July 7th, and the impanelment of the jury was not completed until July 7th, so that defendant’s counsel had full opportunity to investigate or interview said witnesses before the taking of proofs in this case began. Therefore we conclude that defendant was not harmed by the failure to furnish him with the residence of those witnesses.

Defendant moved for a continuance because of the absence from the State of Charles Moore, Charles Murphy and Fred Brown, alleged to be material witnesses for defendant. Among the dates stated in said bill of particulars were April 19, April 26 and May 3, 1914. The affidavit stated that T. W. Youngs and W. F. Youngs would testify for the People that they purchased intoxicating liquor of the defendant on those three dates, which were Sundays, and that they entered the place of business of defendant in North Chicago on those days and bought intoxicating liquor of defendant and his bartender; that Fred Brown would testify that on Sunday, April 19, 1914, he tried to enter the place of business of defendant but the door was locked and no one was in it; that upon starting to go away, he saw T. W. Youngs in the vicinity and knew him to be a detective, and saw him go to the door of defendant’s premises and try to get in, but that he was unable to get in; that he thereupon watched T. W. Youngs and W. F. Youngs and followed them from place to place in hopes of finding a place where he, Brown, could get a drink of intoxicating liquor; that he knew that said T. W. Youngs and W. F. Youngs did not enter defendant’s premises on that day and did not buy intoxicating liquor from him or his employee ; that Charles Murphy will testify that on Sunday, April 26, 1914, he met T. W. Youngs and W. F. Youngs in North Chicago and saw them attempt to enter defendant’s place of business and observed them throughout the time they were in North Chicago and that they did not enter defendant’s place of business; that Charles Moore will testify that on Sunday, May 3, 1914, he was in North Chicago and saw T. W. Youngs and W. F. Youngs endeavoring to open the door of defendant’s saloon but that they failed and left the premises, and that he, Moore, then tried the door and was unable to enter the premises; and that on a certain later date named and at a place named, in a conversation between Moore and T. W. Youngs, the latter stated to Moore that he had not been able to enter the premises of defendant on any of the Sundays, and he asked Moore to take him over the next Sunday, so that he could get a drink from defendant and others. This evidence would have been very material on the trial of this case. The affidavit further stated that the testimony of T. W. Youngs and W. F. Youngs is false and- that the testimony of Moore, Murphy and Brown is true; that defendant had no other witnesses who would testify as to said facts; that these witnesses were not absent by his procurement or by the procurement of any one connected with the case; that they are at Des Moines, Iowa; that Brown and Moore would return about August 1, 1914, and Murphy about September 1,1914. This affidavit is defective. In case of an application for a continuance because of the absence of a material witness who is out of the State and beyond the reach of the process of the court, it is necessary to show the grounds of a reasonable expectation that the absent witness will return to the State by the next term of court. Eubanks v. People, 41 Ill. 486; Perteet v. People, 70 Ill. 171; Wilhelm v. People, 72 Ill. 468; Dacey v. People, 116 Ill. 555. Defendant did not state in his affidavit that these witnesses told him that they would return by the dates named. If they did not tell this to him but to some other person, then the affidavit of that other person should have been produced. Moreover the affidavit did not deny the guilt of defendant in positive terms. We therefore conclude that it was not error to deny the continuance. Nevertheless, as the delay would only have been for about two months, we think the trial judge, in the exercise of a wise discretion, might well have postponed the trial beyond the dates named.

Defendant moved to challenge the array, which was denied, and then moved to quash the venire, which was also denied. The grounds of these motions were that the county board, in making its list of jurors in the preceding September, pursuant to section 1 of the Jury Act (J. & A. |f 6831), did not take into account the women in the several towns who were voters, and did not make a list of at least one-tenth of the legal voters of each town, when the women are counted as voters. Women are not legal voters on all subjects, but have a limited right to vote. We are of opinion that the names of women who could vote on certain subjects in the respective towns were properly omitted from consideration in making up the list.

Defendant owned a double building facing east in North Chicago. The south half thereof was a single room used as a saloon by defendant and had a bar on the north side of the front part of that room. It had no outside door, except the east or front door. The north half of the building was divided into two rooms. The front room was a grocery run by Stephen Krause. The rear room we may call a storeroom. It had a west outside door, and both the grocery and saloon goods were received through that door into that room. There was a door on the east side of that room into the grocery and a door on its south side into the saloon. Defendant had no bartender, but, if he was absent, his wife tended bar for him, and on a few occasions his brother Stephen came in and assisted. Stephen had a hired man. T. W. Youngs was a detective employed by the county under the direction of the State’s Attorney to detect violations of the liquor laws in North Chicago. Walter F. Youngs had never done any detective work, except on these three Sundays. These two men testified for the State that on Sunday, April 19, 1914, they passed west along the south side of this saloon and through a gate to the rear of the building and then turned north and went in at this rear door of the storeroom, and in that room found tables and men sitting there playing cards, with bottles standing on the tables before them, which appeared to be bottles of beer; that there was a man in attendance, who was not the defendant and whom, they did not know, and they asked him for something to drink and he replied that he did not sell on Sunday, but on being requested again said he could sell them some bottled beer, and that he did bring them some bottles of beer which they paid for and drank. Walter Youngs testified that this liquor was brought from the saloon and that from where he stood in the storeroom he saw the bar. Proof by defendant and a diagram of the building showed that it was impossible for one standing in the storeroom to see the bar, and, also that Stephen kept beer in his grocery and sold it on commission; and it may be that what Walter supposed to be the bar was the counter in the grocery and that the man in attendance was Stephen’s hired man Selling beer from the grocery and from Stephen’s stock. They both swear this was at 12:15 p. m. They testified that they went into this same storeroom through the same door about four o’clock p. m. on Sunday, April 26,1914, and saw men sitting at a table and bottles before them and bought two bottles of whisky and paid therefor, and that defendant personally served them, and that the same thing occurred again on Sunday, May 1,1914, between eleven and twelve a. m. There is a clear numerical preponderance of evidence that on Sunday, April 19th, defendant and visitors were in his home, right back of this saloon, from ten o ’clock in the morning until mid-afternoon or later; that on Sunday, April 26th, defendent left North Chicago in mid-forenoon and was in the City of Chicago at the home of a brother all that afternoon; and that on Sunday, May 3, 1914, he and several friends left North Chicago at 8:30 a. m. or 9 a. m. in an automobile with provisions and fishing tackle and spent the day some distance away at the Des Plaines Eiver. The testimony for defendant sustaining these contentions was by witnesses who did not always agree in every detail. On the other hand, it appeared by the cross-examination of the Youngs brothers that Thomas kept a memorandum of events and of these and the other saloons they visited and that they both had talked over this case from this memorandum before they testified; and after the court had improperly sustained cross-questions put by defendant’s counsel to Thomas Youngs on this subject, the witness finally admitted that on the trial of a former case against another saloon keeper in North Chicago he had testified that as to the occurrences at the Krause saloon he had no independent recollection thereof, and testified concerning them at that time, not from memory but solely in reliance on notes which he had made. It is entirely clear that if the jury had found the defendant not guilty, that verdict would have been supported by the numerical preponderance of the evidence, and it is a serious question whether this case ought not to be submitted tó another jury upon the facts. In this condition of the evidence the Assistant State’s Attorney, in his opening argument to the jury after the close of the evidence, told the jury, in substance, that if they believed that the witnesses for the defense were not telling the truth and if they believed the defense was manufactured, then it was their duty as good citizens and as jurors to find the defendant ‘ ‘ not guilty” as the record reads or “guilty” as the abstract reads. Objection was made to this statement. That objection was sustained only to the use of the words “it is their duty.” Thereafter the same attorney said to the jury: “If you believe that the testimony on the part of this defense is not to be credited, it is your solemn duty to return a verdict of guilty against the defendant un all three counts the State has proven in this ease.” This was objected to and the court was asked to instruct the jury to disregard that sentence. The objection was overruled and the instruction refused. It is not the law that if the defense, was fabricated, the defendant should be found guilty. Before the defendant could be found guilty his guilt must be established beyond all reasonable doubt. The jury might have disbelieved the testimony of defendant and his witnesses and also discredited the testimony of the two witnesses for the People, or might not have been satisfied therefrom beyond a reasonable doubt that the defendant was guilty. By overruling the objection the jury would understand that the court approved the proposition that if the evidence of the defendant was untrue, then it was their duty to find the defendant guilty, and also that the court was satisfied that the defendant had been proven guilty on three counts of the indictment. When the state of the evidence and this ruling are considered together, we conclude that the case should be submitted to another jury.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Hiram Gilmore, Plaintiff in Error.
    Gen. No. 6,072.
    1. Criminal law, § 409

      —when entry of judgment on some counts does not oust jurisdiction of remainder. Where, in an indictment containing eleven counts, defendant pleaded guilty to the first three counts and was fined thereunder and paid the fine in open court and thereupon the State’s Attorney dismissed all the remaining counts except the eleventh, and thereafter, on the same day, the defendant and the State agreed in writing that the cause should be heard upon a stipulation as to the facts which was that day filed in the cause, such stipulation signed by defendant personally and by the attorneys for both parties containing the following language, “It is hereby stipulated and agreed * * * that said cause shall be and it is hereby submitted * * * upon the following agreed facts, the eleventh count in the indictment being the only count in the said indictment for trial in this cause,” and the cause proceeds to trial and judgment is rendered thereupon without raising the question of the court’s jurisdiction to try defendant on such count after entering judgment on the earlier counts, defendant cannot on appeal for the first time question the jurisdiction of the trial court.
    2. Appeal and error, § 1713

      —when assignment of error waived. A question which is not argued or suggested in the opening brief of plaintiff in error cannot be raised for the first time in a reply brief, but is waived.
    3. Appeal and error, § 831

      —when hill of exceptions to he taken and filed. A bill of exceptions must be taken at the time the event referred to occurs unless an order is obtained from the court extending the time, and must then be presented within the time of the extension.
    4. Intoxicating liquors, § 147

      —when evidence sufficient to support conviction. Evidence on an indictment for the sale of intoxicating liquors in violation of law, examined and held to support conviction.
    Niehaus, J., dissenting.
    Error to the County Court of De Kalb county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Alschuler, Putnam & James, for plaintiff in error; Thomas M. Cliffs, of counsel.
    Lowell B. Smith, for defendant in error; E. M. Burst, of counsel.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On October 31, 1914, the grand jury of DeKalb county returned into the Circuit Court an indictment against Hiram Gilmore, containing eleven counts, wherein he was charged with various offenses against the liquor laws of this State. The indictment was certified to the County Court for process and trial. There was a change of venue from the county judge, and the county judge of another county tried the case. Gilmore pleaded guilty to the first three counts of the indictment and was fined thereunder and paid the fine in open court. The State’s Attorney dismissed the remaining counts except the eleventh. Gilmore pleaded not guilty. A jury was waived. A stipulation as to the facts was prepared and signed by the State’s Attorney and by Gilmore and by his attorneys, in which stipulation he waived various questions. The cause as to said eleventh count was tried by the judge without a jury upon said stipulation. Gilmore was convicted of maintaining a nuisance as charged in the eleventh count, and was sentenced to pay a fine and to a short imprisonment, and it was further adjudged that the place so kept as a common nuisance be abated until Gilmore should give a bond, with security approved by the court, in the penal sum of $1,000, conditioned that he would not sell intoxicating liquors contrary to the laws of the State, and would pay all fines, costs and damages assessed against him for any violation thereof. This is a writ of error to review that judgment.

In his reply brief, Gilmore contends that when the court had entered judgment under the first three counts of the indictment it possessed no jurisdiction to try him thereafter under the eleventh count. The course pursued was in harmony with the views expressed by this court in Gaul v. People, 136 Ill. App. 445. That judgment was reversed by the Supreme Court in People v. Gaul, 233 Ill. 630. Gilmore relies upon the latter decision as requiring the reversal of the present judgment. There are several answers which we deem sufficient. This point was not raised in the trial court. According to the record before us, Gilmore pleaded guilty to the first three counts of the indictment, and was fined thereunder and paid the fine in open court, and the State’s Attorney dismissed all the remaining counts except the eleventh, all on January 26, 1915, and thereafter on the same day Gilmore executed and filed in the cause a waiver of a trial by jury and submitted the caused to trial by the court without a jury, and both parties agreed in writing that the cause should be heard upon astipulation as to the facts which was that day filed in the cause. The stipulation, signed by Gilmore personally and by the attorneys for both parties, contained the following language: “It is hereby stipulated and agreed * * * that said cause shall be and it is hereby submitted * * * upon the following agreed facts, the eleventh count in the indictment being the only count in the said indictment for trial in this cause.” The cause was tried on February 20,1915, and Gilmore was then found guilty under the eleventh count, and the judgment here assailed was then rendered. After entering into that stipulation and being tried thereunder without raising this question, we are of opinion he cannot be heard to say in this court for the first time that the previous entry of judgment under the first three counts makes the trial under the eleventh count without jurisdiction. This point is not raised by the assignment of errors in this court, except in language so general that it could not indicate the point to counsel for the People. It was not argued or even suggested in Gilmore’s original brief, and thereby we are deprived of any answer which the People might make. Because it was not argued in the opening brief of Gilmore it was waived by him. This is established by many decisions which we need not cite. The time for filing a reply brief was extended, and the extended time expired July 1, 1915. The reply brief, in which this point was raised for the first time, was placed in the hands of the clerk on July 22nd, long after the time for filing reply briefs had expired, and Gilmore never obtained an extension of that time or a leave to file reply briefs after the time had expired, and the reply briefs have not in fact been filed. Aside from that, we do not think Gilmoré should be permitted to raise so important a question for the first time after the brief of the other side has been filed. If technicalities are to be brought in after the time for filing even reply briefs has passed, we suggest to Gilmore’s counsel that there is not in this record, which is certiijed to be complete, any leave to present a bill of exceptions after the rendition of the judgment. The bill was signed on March 4, 1915, some time after the judgment. It is, we believe, established law that a bill of exceptions must be taken at the time the event referred to occurs, unless an order is obtained from the court extending the time, and then it must be presented within the time of that extension. This record contains neither leave to present a bill of exceptions nor any extension of the time to present it beyond the day of judgment.

The statement of facts contains 24 typewritten pages, besides numerous exhibits. The place described at length in the eleventh count is the first story of a building known as 352 West State street, in the City of Sycamore. Gilmore was a tenant of said first floor until July 1,1914. That territory was what is known as wet territory until May 7, 1914, and Gilmore kept a saloon therein until that time under a license so to do. He had not only sold liquors at retail there but also sold liquors at wholesale in said City of Sycamore from that place, and he owned a team and wagon with which to deliver liquors bought at wholesale, and had in his employ a driver named Hurley. Gilmore bought all his beer of the Aurora Brewing Company, hereinafter called the brewing company, whose plant was in the City of Aurora, in Kane county, thirty miles distant from Sycamore. Aurora is wet territory. On May 7, 1914, the town of Sycamore, which included said City of Sycamore, became anti-saloon territory under the statute of this State on that subject (J. & A. ¶ 4637 et seq.), and has ever since so remained. About August 1, 1914, the brewing company obtained a lease of said first floor of said building in Sycamore and a club was organized in Sycamore and named the “Sycamore Social Club, ’ ’ which at first had twelve members, and at the time of this indictment had one hundred members. It has in its rooms chairs, settees, tables, newspapers and magazines, lockers for beer and an ice chest previously used in the saloon and intended to cool beer. The brewing company had owned the fixtures in the saloon, and they still remained in the same room when- this indictment was returned, but the ordinary bar equipment was not used by the club. The brewing company put in a partition cutting off the front part of this building from two rooms in the rear. One Rupp had been district manager at Aurora for the United States Express Company for many years, until it retired from business in the spring of 1914. About July 1, 1914, Rupp reorganized an express company known as the Fox River Express Company, and hereinafter called the express company. He became manager of the express company, and an employee of the brewing company became its president. The brewing company had a downtown branch office at 82 New York street, Aurora, and had a lease of that building. It sublet one room in that building to the express company, and the express company used it as its main office. The collections of the brewing company were made from that building, and this employee who became president of the express company was also collector for the brewing company and did that business in the same building. Both names, that of the brewing company and that of the express company, were on the. same front door which constituted the only front door of admittance to the building. The front room of said building in Sycamore was made an office of the express company, and Gilmore was made its agent at a salary of $75 per month. Gilmore took an active part in .organizing said club, and became its treasurer and handled all its moneys. The brewing company leased the two rear rooms to the club. These two rooms included most of what had been the saloon. Hurley, Gilmore’s former driver, was made custodian of the clubrooms, and Gilmore assisted Hurley in that work. Gilmore collected an initiation fee of fifty cents from each member, which was used for the purpose of buying such member a key to the door from the express office into the club and a padlock and key to a locker inside the club. Gilmore collected dues of twenty-five cents per month in hot weather and thirty-five cents per month in cold weather from each member. He paid the rent, the janitor service, the bills for lighting and heating and ice, and at the time of this indictment had never made any report to the club of his receipts or disbursements. Gilmore sold his team and wagon used by him in the wholesale liquor business in Sycamore to the express company, and Hurley, formerly his employee, became the driver of said conveyance for the express company. In said front room used as the office of the express company, Gilmore sold cigars, tobacco and snuff, and there were •upon its counters blank orders addressed to the brewing company for beer. These orders were also to be found inside the elubrooms. A person, whether a member of the club or not, wishing to order beer by the case, filled out a blank, specifying the amount of beer required and the price, and signed it and bought from Gilmore an express money order for that amount, with twenty-five cents added thereto for the charges of the express company for conveying each case of beer, and paid three cents for the money order, and put the order for the beer and the money order in an envelope. Envelopes already addressed to the brewing company at Aurora were always upon these counters, and were generally but not always used. After the envelope had been sealed, Gilmore sold the party a postage stamp if he was not supplied with one. The parties could take this envelope to a United States mail box if they desired, but there was a private mail box inside this room in which the orders were generally placed. Whenever he saw fit, Gilmore called a United States mail carrier to come and take out the orders in the box, and this was done. When the order was received by the brewing company at Aurora, it entered it on its books, and caused a case or cases, as ordered, to be duly marked with the name and address of the person who signed the order, and if that person was a member of the club the address was 352 West State Street, Sycamore, Illinois. This case or these cases were then placed upon the shipping platform of the brewing company at Aurora, and taken by the express company and carried to Sycamore, sometimes with their auto trucks and horses and wagons, but more generally over the Northwestern Railroad. The shipment was then placed in a warehouse at Sycamore which the brewing company owned and used until this became dry territory, and then leased to the express company, and Gilmore or Hurley then hauled the shipment to the club, if it was ordered by a member, and to the residence of a consignee who was not a club member. Gilmore then opened the case of the club member and placed the bottles in the locker belonging to the member whose name had been signed to the order. It would seem, therefore, that he had a key to each of these lockers. There was only one door of entrance to the clubrooms and that was from the front office. It was locked, and bore a sign “For members only.” Each member had a key to that door. When a member hád ordered beer which had been placed in his locker and he wished a drink, he opened his locker and took out one or more bottles. There was in the old saloon an ice chest which still remained there when these became clubrooms. It had two compartments, one marked “Hot” and the other “Cold.” The member would take his bottle and place it in the side marked “Hot ’ ’ and then would open the side marked “Cold” and take out a bottle. The rules of the club required that each member should mark on his bottle, when he took it out of his locker, the number of his locker, and it was intended by the rules of the club that when he took á bottle or bottles out of the cold side of the ice chest he should only take bottles bearing his number on the cap, placed there by himself. This part of ■ the arrangement, however, failed. The members did not put the numbers of their lockers, respectively, op their bottles of warm beer. The ownership of each bottle therefore could not afterwards be ascertained, and when a member put a bottle into the hot side of the ice chest he put it into the common stock, and when he drew a bottle from the other side he had no means of knowing that he was taking beer which he himself had paid for, but he was drawing a bottle merely from a common stock, and all efforts to keep them separate by.having separate bottles in individual lockers ended when a bottle was placed in the ice chest. Thereafter the members simply used beer from the common stock. It is admitted in the stipulation that the beer was intoxicating liquor. Neither Gilmore nor any one else had any license to sell liquor at that place. No United States license or internal revenue tax receipt had been obtained for the place. Members were permitted to enter it at all times from seven o’clock in the morning until eleven o’clock at night of each day, including Sunday. There was a membership committee of three, who were also the board of directors. No one could be admitted a member except by the consent of two of those three. Gilmore was a member of that committee. The applications were generally made to Gilmore, and he generally admitted the member at once, but sometimes he required the party to wait a day or two until he consulted the others, and some persons were rejected who had applied for membership. Gilmore and others frequently invited persons to become members who had not made application. The brewing company charged' the members of this club more for its beer than it did other people. At first this seems strange. If, as contended, the only connection the brewing company had with this matter was that it received at Aurora by mail ah order for one or more cases of beer to be consigned to a certain party in Sycamore, and, with the order, received pay in full for the beer and the charges for transportation, and all it then had to do was to mark the cases with the name of the consignee and place them on its shipping platform, and its connection with the matter was then ended, no reason is perceived why it should charge the members of this club more than other customers. A computation of the expenses of the club as stipulated and of the dues which the members were to pay will show that the income from the members was less every month than the expenses of the club, even after it had one hundred members, and must have been much less when the membership was smaller. .The monthly expenses of the club were $30 or more in warm weather and $35 or more in cold weather. When it had twelve members its receipts from dues, its sole income, was $3 per month, and when it had fifty members its income was $15 per month in warm weather and $17.50 per month in cold weather. At the time of this indictment its monthly income was $25 in warm weather and $35 in cold weather. If that loss in some way fell upon the brewing company, then a reason would appear why the brewing company should charge the club more for its beer. The express company not only has its office in a part of the brewing company building but it does very little business except to transport the beer of the brewing company, and four-fifths of the towns to which it conveys the beer of the brewing company are dry territory. It transports no beer except that of this brewing company. All the beer this brewing company ships into dry territory it ships by this express company. The by-laws of the express company reserve a right to reject any and all shipments. The express company has all the legal forms of organization of a common carrier. The provision that it may reject shipments is probably void if the question arose between the express company and a person who offered shipments which it refused, but it is a circumstance having some bearing upon the question what the real relations were between the brewing company and the express company and Gilmore and the club. It tends to show that the express company intended in advance to reject general shipments and intended to accept little business except that of the brewing company, and prepared this by-law to discourage general shipments, and to enable it to justify the rejection of other shipments. No stockholder or officer in the brewing company owns any stock in the express company. Each company had forms and blanks and books indicating that each had a separate organization and business life.

The first sentence of section 12 of the act for the creation of anti-saloon territory (Hurd’s Rev. St. 1913, p. 1028, J. & A. ¶ 4648) is as follows: “Whoever shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell, barter or exchange any intoxicating liquor in any quantity whatever, within the limits of any political subdivision or district in this state, while the same is Anti-Saloon Territory, shall be fined not less than twenty dollars ($20), nor more than one hundred dollars ($100), or imprisoned in the county jail for not less than ten (10) days nor more than thirty (30) days, or both, in the discretion of the court”

Section 13 (J. & A. ¶ 4649) is as follows:

“The giving away or delivery of any intoxicating liquor for the purpose of evading any provision of this act, or the taking of orders or the making of agreements, at or within any political subdivision or district while the same is Anti-Saloon Territory, for the sale or delivery of any intoxicating liquor, or other shift or device to evade any provision of this act, shall ’be held to be an unlawful selling.”

The general dramshop act contains similar provi-! sions in regard to shifts and devices to evade the pro-, visions of the act. These provisions in regard to a shift and a device have been considered and construed in Illinois in the following cases: Rickart v. People, 79 Ill. 85; People v. Law and Order Club, 203 Ill. 127; South Shore Country Club v. People, 228 Ill. 75; People v. Gardt, 175 Ill. App. 80, and 258 Ill. 468; City of Decatur v. Schlick, 269 Ill. 181; and People v. Craig, 155 Ill. App. 73. As the discussion of a shift and a device in those cases is accessible to the profession, we need not repeat the various schemes to evade our liquor laws which the courts there held to be mere shifts and devices. There are, in various other States of the Union, like statutory provisions, and like decisions covering many different kinds of schemes intended to enable the parties resorting thereto to avoid the penalties of legislation of this character, and which have almost uniformly been held by the courts to be mere shifts and devices. Very many of the features that are prominent in the arrangement here adopted will be found in some of those cases.

We will briefly restate the relation between the brewery and the express company and the club, so far as is revealed by the evidence. This defunct express company was not revived until the anti-saloon territory act had become effective in Sycamore at least, and, it is a fair inference from the language of the stipulation, in other cities, and villages in northern Illinois. Its president is an employee of the brewing company. It has its main office in Aurora in a room which it rents from the brewing company in a building the rest of which is occupied by the brewing company, and said president of the express company works for the brewing company in that building. There is but one front door of entrance into the downtown office of the brewery in Aurora and the main office of the express company, and the names of both companies are on the front door. The express company bought part of its horses and trucks from the brewing company. The brewing company owns a warehouse in Sycamore for the storage of beer, which was used by it for that purpose until Sycamore became dry territory. Soon after it became dry territory, the brewing company leased this warehouse to the express company. Gilmore operated a saloon in the first floor of a building in Sycamore until this became dry territory. Soon thereafter the brewing company rented the first floor of that building. Gilmore at that place had sold at retail and wholesale the beer of this brewing company exclusively. Hurley was his driver to carry cases of beer from the warehouse about the town. When this became dry territory the express company bought from Gilmore the truck and team so used in Sycamore, and hired Hurley as its driver. Gilmore took an active part in the organization of the club. He became its treasurer, and handled all its money. Hurley- and he performed the duties of custodian of the clubrooms. Gilmore actively exerted himself in procuring men to join the club. He sometimes hauled the beer from the warehouse to the club, and if Hurley hauled it, Gilmore received it at the club. He usually placed the beer ordered by each member in the locker of that member. He must necessarily have had a key to each of the one hundred lockers in order to enable him to do that. He pays the rent and the charges for lighting and heating and ice and janitor services. He shows each person who wishes to order a case of beer how to do so, if he needs assistance, sells bim the money order for the price of the beer and the express charges, and receives the money. He directs the inclosure of the money order and the order for the beer in an envelope, to be placed in a private box inside the front room of the building, and tells .the mail carrier when to come and get it and take it away. He is one of the three members of the membership committee, and two of said members can determine who shall be received as a member. It is impossible but that he and Hurley have obtained for membership in said club many of the regular patrons of his former saloon. The stipulation does not tell on what grounds persons who applied for membership have sometimes been refused, but the fact that the only revenue to be received there either by the express company or the brewing company must arise from the sale of beer would furnish an incentive to admit persons who were likely to be considerable consumers of beer and to be able to pay in advance therefor. Very likely they might reject persons whose presence in the club would be undesirable. The stipulation contains the following: “No intoxicating liquor of any kind has been carried, stored or delivered by. said Fox River Express Company or by said defendant as its agent which has not been ordered by an order mailed as above set forth from dry territory into wet territory, nor has any liquor been carried, stored or delivered by said express company or said defendant as its agent which has not been labeled with the name of the purchaser and delivered to said Fox River Express Company by the seller in wet territory.” Strictly considered, this language means that the Fox River Express Company has not carried, stored or delivered any intoxicating liquor except on orders mailed in dry territory, and if that is its meaning, then the sole business of this express company, so far as it relates to liquor, has been to take liquor into dry territory and deliver it there. ' Other portions of the stipulation show that only four-fifths of the towns to which it carries the brewing company’s beer are dry towns. It is clear that the express company has very little business except carrying intoxicating liquor from this brewery into dry territory, and it is stipulated that it carries no intoxicating liquor except the beer of this brewing company. This express company has not the indicia of an ordinary express company seeking general business. It has a rule which permits it to refuse any shipment that it does not wish to take. It has shipped nothing into Sycamore except intoxicating liquor and some cases of mineral water.

The court is of opinion that if these facts were considered by a well-informed person who was neither juror nor judge, he would say at once that this was a system which had been devised to enable the parties to put the beer of the brewing company into dry territory and into places where men congregated to drink it, and to give it the legal appearance of an order for liquor received, filled and delivered to a common carrier in wet territory. Why should a juror or judge take any other than such common and reasonable view of the real nature of this business arrangement? This club is substantially the saloon which Gilmore previously kept there. If its rules are strictly carried out, a stranger on the street could not go in and get a glass of beer at once, but he would have to be passed upon by two members of the membership committee, and wait two or three days for an order for beer to reach Aurora and for the beer to be returned. But for all the regular habitues and friends and customers of Gilmore it' possesses practically the same opportunities, and it is just as feasible and just as lawful on Sunday as any other day, and it pays no revenue to the State. True, each member has to help himself to liquor, but this is an unimportant detail. This is a place where those who are willing to be the customers of Gilmore meet from seven a. m. to eleven p. m. of all the days of the week, to drink intoxicating liquor which they obtain through the assistance of Gilmore and others. The plan is artfully devised, but we entertain no doubt that it is a scheme or device to avoid the liquor law. If this can be done in this saloon building by Gilmore, it can be done in every other place in Sycamore which was a saloon before the territory became dry. If this can be lawfully done in Sycamore and by this brewing company, it can also be done in all other dry territory in this State by every other brewery and distillery, and the statute in question can be practically defeated. We are of opinion that this express company is not a real express company, but it is a part of a device and agency of the brewing company to deliver its beer in Sycamore and other dry territory; that its receipt of orders and money in Sycamore and delivery of beer in Sycamore is really the act of the brewing company, done in Sycamore, and that Gilmore, who receives the original money and who delivers the beer, is really an agent of the brewery company, and is violating this statute in dry territory.

If, however, this be treated as a genuine express company, and the beer be considered as delivered by the brewing company to the consignee in Aurora, nevertheless it appears from this stipulation that when a member places his bottles in the hot part of the ice box he does not place the number of his locker - thereon, and therefore they are immediately merged in the common stock placed by the members in that side of the ice box, and when he takes bottles out of the cold side of the ice box he has no means of knowing that he is taking out his own bottles, but he is merely taking bottles from a common stock. The having of liquor in a common stock in a club has been held a shift or device, and invalid. (People v. Law & Order Club, supra; South Shore Country Club v. People, supra); and it cannot be but that Gilmore, who takes the money, directs when the order therefor shall be mailed, receives the beer and puts it in the locker, and who assists the custodian in charge of the room, and who is in effect the manager of the club, knows that the liquors there drank are taken out of a common stock, and knows that this is not a case where each man actually drinks the liquor which he himself purchased. For that reason also he is a violator of this statute.

Since the foregoing opinion was prepared, the Supreme Court has denied a rehearing in the four cases consolidated as City of Decatur v. Schlick, supra. We therefore wish to call attention to the facts that the City of Decatur was dry territory, that the ordinance there involved contained practically the same provisions as the act for the creation of anti-saloon territory, and that in those cases the defendants who were held rightfully convicted of violating the provisions of the ordinance did not own the liquors there used at the clubs there described, or have any interest in said liquors. Each member of those clubs bought his liquors elsewhere and had them delivered at his club. The defendants merely received and kept the liquors and served to each member his own liquor which he had bought and paid for elsewhere. The places had been saloons kept by the defendants before the territory became dry, and after it became dry they only kept and served to each member his own liquor. Defendants did not buy or order the liquor or handle any money spent for liquor. They only stored and served the liquor. They were paid only for such service. Yet it was held that they were violating the provisions of section 15 of the ordinance (which was the same as section 13 of the Act), in the delivery to the consumer of intoxicating liquors for the purpose of evading the provisions of the ordinance, and in making agreements for the delivery thereof; and that their methods of conducting the business were shifts and devices which authorized their conviction for unlawful selling. The application of the principles there stated to the facts of this case seem to us to fully justify the judgment here presented for review.

Under section 14 of the Anti-Saloon Act (J. & A. ¶ 4650), the place where the law is thus violated is a common nuisance and may be abated as such, and the judgment of the court below is therefore authorized by the law and the evidence.. The judgment is affirmed.

Affirmed.

Mr. Justice Niehaus, dissenting.

I am unable to concur in the decision of the court affirming the judgment of conviction of the plaintiff in error. Plaintiff in error is charged with .unlawfully keeping a certain place, namely, the first floor of a building situated at No. 352 West State Street, in the City of Sycamore, in the Township of Sycamore, which is anti-saloon territory, and unlawfully selling intoxicating liquor there, whereby the place became a common nuisance. The guilt of the plaintiff in error is to be determined from certain facts which are stipulated, and the stipulated facts should furnish the proof of guilt. I am of opinion that they do not show that the plaintiff in error actually or constructively sold any liquor in the place in question, nor that he was the keeper of thé place. The liquor handled in this place was beer, and it is perfectly clear that this beer was purchased and owned by individual members of a certain club, known as the “Sycamore Social Club.”. At the time of the indictment, the club had about one hundred members, and was composed of farmers, business men, masons, contractors, former saloon keepers, laborers, factory workers and others. Individual members of this club purchased beer in bottles and by the case from the Aurora Brewing Company at Aurora, in Kane county, a locality which is admitted to be wet territory. This beer, when purchased, was consigned by the brewing company to the several members of the club, who were purchasers, and delivered to the Fix River Express Company, at Aurora, for the consignees at DeKalb. It is conceded that the Fix River Express Company is an Illinois corporation, organized for the purpose of carrying on a general express, transfer and cartage business, and chartered to do business as a common carrier, and doing business as such carrier in the counties of Kane, Winnebago, Boone, McHenry, Ogle, Whiteside, Lee, DeKalb, DuPage, Will, LaSalle, Grundy and Kendall. As such carrier it not only had the right, but was legally obligated to transport the goods received from the Aurora Brewing Company, even though they were intoxicating liquors, to the consignees at Sycamore, and to transfer them into their possession. The plaintiff in error is the agent of this express company at the Sycamore end of the line; and he handled this beer, which was the beer of the several consignees, as such agent, to put the consignee into possession of the property which the company had transported for them.

It also appears from the stipulation that the Fox River Express Company occupied the front room of the first floor of the building in question, and that the “Sycamore Social Club” occupied the room adjacent, which was the rear room; that is, the express company had possession as tenant of a room which was a part of the first floor of the building in question, and the “Sycamore Social Club” was in possession as tenant of the other room on this floor; and I am unable to see how the plaintiff in error could be held to be guilty of keeping a place, and conducting a nuisance therein as a matter of law, when, as a matter of fact, the place was kept and maintained by other parties. Nor does it appear to me to be material to the issue here, how the ice box, used by the members of the club, was constructed, nor the manner in which members iced their beer; nor is it any evidence of the guilt of the plaintiff in error that the members of the club were careless in marking their beer bottles; nor, that by their carelessness in that regard, they sometimes got their bottles mixed; nor is it any legitimate evidence of the guilt of the plaintiff in error, of the charge upon which he was tried, that before he became the agent of the Fox River Express Company, and before the club occupied the premises mentioned, he had conducted a saloon, illegally sold liquor in these premises, and pleaded guilty to such illegal selling; nor are these facts embraced in the stipulation.

It is true the plaintiff in error sold express money orders, as agent of the Fox River Express Company, in the usual course of his employment as agent of the company, and knew that the express orders, which he sold to the members of the club, would be used by them in the purchase of beer from the Aurora Brewing Company; but as these purchases of beer were to be made in wet territory, this did not involve a violation of law; and it is also clear that the plaintiff had no interest whatever in such purchases, either directly or indirectly. If there is any shift or device involved in this case, it does not appear to be one carried on by the plaintiff in error. In my opinion the stipulation of facts does not show that the plaintiff in error is guilty of the offense with which he is charged, and the judgment of conviction should, therefore, be reversed.


text:
    Village of Franklin Grove, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 6,073.
    1. Municipal corporations, § 90

      —when ordinance not void as unreasonable. An ordinance of a village requiring a railroad company to erect, maintain and operate gates at each of four different crossings is not invalid as to all of such crossings merely because it is found to be unreasonable as to one of them, the provision for gates at any one of such crossings not being in any way inseparably connected with the provision for gates at the other streets.
    2. Municipal corporations, § 85*—when provision in ordinance for daily penalty does not invalidate. An ordinance providing for the erection and maintenance of gates at certain crossings is not void because it makes each day’s failure to obey a separate offense.
    8. Railroads, § 626

      —when requirement for gates at crossing reasonable. Evidence in an action against a railroad company to recover penalties for failure to comply with the village ordinance requiring the erection and maintenance of gates at certain crossings, examined and held to show that such ordinance was reasonable as to one street but unreasonable as to others.
    4. Railroads, § 626

      —when ordinance requiring operation of gates unreasonable. A village ordinance providing for the erection, maintenance and operation of gates at street crossings in the village is unreasonable where it requires the gates to be operated the entire twenty-four hours of the day.
    5. Evidence, § 22

      —when court will take judicial notice of railroad conditions. In an action against a railroad company to recover fines for failure to comply with an ordinance regulating the erection, maintenance and operation of gates at crossings in the village, the court will take judicial notice of conditions which ordinarily exist in a rural community, and that after the affairs of the day and evening are ended, the ordinary statutory signals of bell and whistle and the headlights of the trains are sufficient for a period extending at least from midnight to six a. m.
    6. Railroads, § 626

      —when penalty for failure to maintain and operate crossing unreasonable. In an action to recover penalties for failure of defendant railroad company to comply with a village ordinance requiring the erection, maintenance and operation of gates at certain street crossings in the village under a penalty of from §10 to §200 for each violation thereof, the provision for the penalty renders the whole ordinance unreasonable and void, for the reason that it would permit a verdict against the defendant of a disproportionately large sum.
    7. Railroads, § 626

      —when not estopped to question of validity of ordinance. The fact that a railroad company has erected and maintained gates at one of four crossings at which said gates are required by village ordinance does not estop it to question the validity of such ordinance in an action to recover penalties for its failure to comply with the provisions as to the other crossings.
    8. Railroads, § 626

      —how ordinance relative to crossings affected by Public Utilities Act. Quaere, as to what effect the adoption of the Public Utilities Act (Laws 1913, p. 455) has upon the right of a village to adopt an ordinance requiring a railroad company to erect, maintain and operate gates at crossings in the village and to provide a penalty for failure to comply therewith.
    Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed with finding of facts.
    Opinion filed October 20, 1915.
    C. B. Morrison, Henry S. Dixon and George C. Dixon, for appellant.

      Trusdell, Smith & Leech, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Chicago and Northwestern Railway Company operates a double track railway through the Village of Franklin Grove, running from a direction north of east, to south of west, and the line is straight in and a long distance on either side of said village. It is crossed by four north and south streets in said village, which counting from east to west are named Sycamore, Elm, Spring and State. On August 4, 1913, the board of trustees of the village passed an ordinance requiring the railway company, not later than November 1, 1913, to erect and thereafter to maintain and operate gates at each of said four crossings and provided a penalty for failure to so erect, maintain and operate said gates, or either of them, of not less than $10 nor more than $200, and the ordinance provided that each day of such failure should be a separate offense. About one year thereafter the railway company erected and has since maintained gates at Elm street, but has not erected gates at either of the other crossings. On April 3, 1914, and before the erection of said gates at Elm street, the village began this action of assumpsit against the railway company to recover penalties for noncompliance with said ordinance. The railway company filed a plea of the general issue and a plea that said ordinance was unreasonable and void and therefore it is not bound to construct and maintain any gates and is not liable to any penalty for failure to do so. There was no replication to this second plea, but the parties went to trial and thereby waived a formal issue. A jury was waived, proofs were heard, the court by a proposition given for the defense held the ordinance invalid as to Spring street, found the issues for plaintiff and gave judgment for $150, from which the railway company appeals.

It is contended that since the court found the ordinance unreasonable and void as to Spring street, therefore the entire ordinance should have been found void. It was held in White v. City of Alton, 149 Ill. 626, to be “a well settled principle, applicable to by-laws and ordinances, that if the provisions relating to one subject-matter be void and as to another they be valid, and the two are not necessarily or inseparably connected, they may be enforced as to the valid portion as if the void portion had been omitted. ’ ’ This principle has been announced and applied in many different ways in Nelson v. People, 33 Ill. 390; Kettering v. City of Jacksonville, 50 Ill. 39; Harbaugh v. City of Monmouth, 74 Ill. 367; Baker v. Town of Normal, 81 Ill. 108; City of Quincy v. Bull, 106 Ill. 337; Poyer v. Village of Des Plaines, 123 Ill. 111; Wilbur v. City of Springfield, 123 Ill. 395; Donnersberger v. Prendergast, 128 Ill. 229; Freeport St. Ry. Co. v. City of Freeport, 151 Ill. 451; City of Belleville v. Citizens’ Horse Ry. Co., 152 Ill. 171. The provisions for gates at one of these streets is not in any way inseparably connected with the provision for gates at the other three streets, and therefore the trial court was not required to find the ordinance unreasonable as to the other streets because it was unreasonable as to Spring street.

It is contended by the railway company that the ordinance is void because it makes each day’s failure to obey it á separate offense. We are of opinion that that provision was valid, and that if the city could only impose a single penalty for a perpetual failure to obey a valid ordinance, then under the 98th clause of section 1 of article V of the Act pertaining to cities and villages (J. & A. ¶ 1334 [98]), which limits cities to a fine or penalty of $200 for each violation of an ordinance, this would result in making such a fine or penalty entirely insufficient to procure the enforcement of the ordinance. This court is committed to the principle that each day may be made a separate offense. Village of Hampton v. Chicago, M. & St. P. Ry. Co., 118 Ill. App. 621, and 125 Ill. App. 412. It is perhaps implied in Village of Altamont v. Baltimore & O. S. W. Ry. Co., 184 Ill. 47, that such a provision is valid, if embodied in an ordinance. In Horr &Bemis on Municipal Police Ordinances, sec. 152, it is said that it is lawful to provide an initial fine for creating a nuisance and an additional fine for each day of its continuance. We hold the ordinance not void because of the daily penalty prescribed therein.

Franklin Grove has less than six hundred inhabitants within the municipality. It has been decreasing in population for many years. Outside the municipality it has a population of about one hundred. Two-thirds of this village population is south of the railway. Its business portion is south of the railroad and all of its churches but one. Its depot and stock yards and other structures are south of the railway. The proof largely consisted of the results of counting the number of foot passengers, teams and automobiles passing over the railway tracks at each street crossing on numerous days specified; and of the statement by witnesses of a few accidents and several near accidents caused by people going or driving upon the track when a train was approaching; and of the description of how trees and buildings interfere with the view of travelers on the highway approaching the crossings at certain places; and of proof that outside of the village but near by, a campmeeting is held six days each year and a chautauqua on the same grounds eleven days each year. It would be impracticable to recite this evidence in this opinion. We think it is sufficient to say that, upon a consideration of this evidence, the court is of opinion that it is reasonable to require gates at Elm street, now known as the Lincoln Highway; that it is unreasonable to require gates to be maintained at Spring and State streets, and that the majority of the court are of the opinion that it is unreasonable to require gates at Sycamore street. The writer of this opinion concludes that because of the six tracks crossing Sycamore street and the obstruction to the view caused by the depot and other buildings, it is reasonable to require gates to be maintained at the latter street.

We are of opinion that the ordinance is unreasonable in its entirety in two other respects. It requires the gates to be operated the entire .twenty-four hours of the day. We are of the opinion that in this rural community we may take judicial knowledge of the conditions which ordinarily exist and that after the affairs of the day and evening are ended and the silence of night prevails, the ordinary statutory signals of bell and whistle and the headlights on all trains, necessarily visible a long distance on this straight track, are all that should be required of the railroad company, at least from midnight to six a. m. and perhaps for a somewhat longer period. The ordinance permits a penalty of from $10 to $200 for each violation thereof. This would allow a jury to assess a penalty of $73,000 for the failure to erect any one of these gates for a year, or $292,000 for failure to erect the four gates for one year. The penalty should be sufficient to insure obedience, and $10 a day would be a reasonable penalty, and perhaps $25 a day, but a provision which would permit a jury to return a verdict for so large a penalty in Our opinion makes the whole ordinance unreasonable and therefore void.

The village contends that the railway company has conceded the validity of this ordinance as to Elm street and that the judgment is much less than the penalties which might be imposed for the failure for nearly one year to erect and maintain gates at that street, and therefore the judgment must be affirmed, regardless of the view the court takes of the validity of the ordinance as to the other streets. We find no place in the record or briefs where the railway company concedes the validity of the ordinance as to Elm street. On the contrary, it insists that it is void as to that street. The fact that it finally concluded to comply is not a confession that the ordinance is valid. It ought to be stated that the railway company maintained a flagman at Elm street before this ordinance was adopted and that it has been customary for it to place a flagman at the other streets during the continuance of said Chautauqua and said campmeeting, and it may well be that it would be reasonable for the city to require a flagman on those streets during those assemblages, both in the daytime and in the evening.

The Act for the Regulation of Public Utilities (Hurd’s Rev. St., ch. 111a) was passed before this ordinance was adopted and went into force before this suit was begun. We suggest the question whether, under section 57 and other sections of that act, the city can now enforce any such ordinance except through the State Public Utilities Commission. For the reasons stated the judgment is reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment.

We find from the evidence that the ordinance in question is unreasonable in requiring gates to be operated at Elm street crossing the entire twenty-four hours of each day, and that the penalty provided for each violation of the ordinance is unreasonable. We find that the ordinance is unreasonable in requiring gates to be erected and maintained at State Street and Spring street. The majority of the court find the ordinance unreasonable in requiring gates to be erected and maintained at Sycamore street.


text:
    W. C. Foster, Appellee, v. Matt Rudis et al., Appellants.
    Gen. No. 6,080.
    1. Forcible entry and detainee, § 95

      —when form of judgment sufficient. A judgment in forcible entry and detainer for plaintiff and against defendants “for possession of the premises involved in said cause” while not in approved form, as requiring resort to the complaint for a sufficient description of the premises, is nevertheless sufficient.
    2. Appeal and error, § 800

      —when matter not properly preserved for review. The fact that a motion for a new trial is preserved in the record kept by the clerk is not sufficient where it is not contained in the bill of exceptions.
    3. Appeal and error, § 600

      —when motion for new trial not. essential to right of review. Even though no motion for a new trial was made, the defeated party may have reviewed on appeal the decisions of the court upon objections to evidence and the like where exceptions thereto have been properly preserved by the bill of exceptions.
    4. Appeal and error, § 551

      —when formal exception not necessary. Under section 81 of the Practice Act (J. & A. 8618), as amended in 1911, a party may have adverse ruling reviewed without taking a formal exception thereto.
    5. Landlord and tenant, § 465

      —when payment of arrears of rent prevents forfeiture. If a tenant pays the rent in arrears within ten days after service of notice of default by the landlord, the forfeiture of the lease is thereby prevented.
    6. Landlord and tenant, § 465

      —when offer of payment sufficient to prevent forfeiture of lease. Where a tenant, within ten days after notice served by the landlord of the termination of his lease for failure to pay rent, pays $375 of the $400 due and within the same period tenders the remaining $25 which the landlord refuses, such payment and tender are sufficient to avoid the forfeiture, and no plea of tender is necessary to admit such defense, nor is it necessary that the tender of the $25 be kept good.
    Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    George C. Guthrie, for appellants.

      Fulton, Garey & Deutschman, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This was forcible detainer brought in the County Court of Lake county to recover possession of a farm. Defendants pleaded not guilty and there was a jury trial. Defendants offered certain evidence which they claimed established a complete defense. The court sustained objections thereto and directed a verdict for plaintiff, and it was returned and there was a judgment thereon for the recovery of the premises, and defendants prosecute this appeal therefrom.

The judgment was for plaintiff and against defendants “for possession of the premises involved in said cause.” We do not approve of this form of judgment. It is exceedingly general. In order to issue a writ of restitution which any officer could safely execute, the clerk must resort to the complaint, where the premises were sufficiently described. If the complaint were lost from the files, the clerk could not issue a sufficient writ. Such a reference to the complaint seems, however, to be justified by the authorities. 1 Freeman on Judgments (4th Ed.), sec. 50c, states the rule as follows: “The property which is the subject of a judgment or decree must also be described with sufficient certainty to leave its identity free from doubt; but the bill or complaint may be referred to in the judgment for the purpose of description. * & * A judgment may be aided by the pleadings and the other parts of the record, and if the description obtainable from it and them would be sufficient if found in a conveyance to divest the title of the grantor, it will be sufficient to sustain sales made or possession taken under the judgment.” Atkinson v. Lester, 2 Ill. (1 Scam.) 407; Cairo & St. L. R. Co. v. Wiggins Ferry Co., 82 Ill. 230; Adams v. Pacini, 119 Ill. App. 428; Haynes v. Sherwin-Williams Co., 126 Ill. App. 414, are examples of judgments which could only be sustained by a like reference. In Haws v. Victoria Copper Min. Co., 160 U. S. 303, where it was claimed that the findings and the judgment did not sufficiently identify the premises to enable an officer to execute a writ of possession, the court said: “It is not doubtful that the decree and complaint taken together fully describe and furnish ample means for identification of the property to which defendant in error was adjudged to be entitled.” The decree was there affirmed. We applied a like rule in Stevens v. Cary, 183 Ill. App. 24.

The bill of exceptions does not contain a motion by defendants for' a new trial, and the effort of the clerk to preserve that matter in the record kept by him is unavailing. Appellee contends that because of the absence of that motion from the bill of exceptions, appellants cannot be heard to complain of the refusal of the court to admit evidence offered by them. Whatever decisions there may have been prior to 1908 which appear to support that contention, it was settled in Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, that without a motion for a new trial, the defeated party may have reviewed on appeal decisions of the court upon objections to evidence and the like, if exceptions thereto .have been properly preservd by the bill of exceptions. People v. Faulkner, 248 Ill. 158. Appellants failed to preserve in their bill of exceptions, exceptions to some of the rulings of the court in refusing to admit evidence offered by them. Under section 81 of the Practice Act, as amended in 1911 (J. & A. ¶ 8618), a party may have an adverse ruling reviewed without taking any formal exception thereto.

Appellee was the landlord and appellants were his tenants under a written lease, running from April 15, 1913, to December 1, 1914, and with a provision that at the option of the tenants, the lease should be extended to December 1, 1917, at an increased rental specified. On November 16, 1914, appellants served a written notice upon appellee of their election to have said lease extended pursuant to said option. On December 1, 1914, $400 rent became due from appellants to appellee and was not paid. On December 2nd, appellee served written notice upon appellants that in consequence of their default in paying said rent, he had elected to determine their lease, and that he notified them to deliver possession within ten days. He began this suit on December 14th for possession. Defendant sought to prove that on December 4,1914, they paid appellee $375, and that on December 5th they tendered appellee the remaining $25 of said rent, and that he refused to receive it. The court refused to admit this testimony. Appellee claims in support of this ruling that under section 9 of the Landlord and Tenant Act (J. & A. ¶ 7047), when the tenant fails to pay his rent and the landlord serves such a notice, the lease is thereby terminated, and that the tenant cannot escape from the result and the landlord has a right to possession after ten days. Our Supreme Court in a long line of decisions has held to the contrary and has held that, if the tenant pays the rent in arrears within ten days after service of such notice, the forfeiture of the lease is thereby prevented. Among those cases are Chadwick v. Parker, 44 Ill. 326; Chapman v. Kirby, 49 Ill. 211; Cone v. Woodward, 65 Ill. 477; Leary v. Pattison, 66 Ill. 203; Woodwards. Cone, 73 Ill. 241. Appellee contends that since these decisions there has been some slight change in the statute, which obviates their force. In 1897, in Woods v. Soucy, 166 Ill. 407, since section 9 assumed its present form, this whole subject was reviewed at length, and it was held that by paying rent within ten days after notice a forfeiture was avoided. Appellee relies upon Dickenson v. Petrie, 38 Ill. App. 155. That case is not in point. There the notice was given and the tenant did not pay nor offer to pay the rent in arrears within the ten days, and the question what effect payment within the ten days would have had was not presented or decided, and, if it were in point, it must be considered as overturned by the later decision in Woods v. Soucy, supra.

But appellee contends that appellants could not avail of this defense, and were not entitled to this evidence, because they did not plead a tender nor offer. to prove that the tender was kept good. This is not a question of tender in the ordinary sense. Appellants are not being sued for the $25. If they were, they would have had to keep the tender good in order to avoid costs. The question here is only whether they could avoid the forfeiture by paying $375 of the rent in arrears and tendering the remaining $25 to appellee within the ten days. No plea of tender was necessary to admit that defense, nor was it necessary that the tender- should be kept good when the last $25 was tendered within the ten days and forfeiture was prevented, whether the landlord did or did not accept the money.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Mark Bates, Appellant, v. Estate of Thomas Cronin, Deceased, Appellee.
    Gen. No. 6,083.
    1. Bills and notes, § 373

      —when introduction of note makes prima facie case. In a claim against an estate on a promissory note where plaintiff introduces the note in evidence and proves that the signature thereto was the genuine signature of the deceased, he makes a prima facie case.
    2. Bills and notes, § 391

      —when holder presumed bona fide purchaser. One holding a promissory note indorsed in blank must be assumed to be an innocent purchaser for value before maturity.
    3. Bills and notes, § 407

      —when burden of proving illegal con

      sideration on defendant. In an action on a note indorsed in blank brought by the holder, where the defense is that it was given in settlement of differences in trades on the Board of Trade, the burden is on the defendant to establish such defense by substantial proof of the facts constituting alleged defense.
    4. Bills and notes, § 434

      —when evidence inadmissible to show illegal consideration. In an action on a note indorsed in blank brought by the holder thereof, the defense that the note was void because given by the maker in settlement of differnces in trades on the Board of Trade in transactions with the payee cannot be established by evidence of transactions with which the payee was not connected and of which he was not shown to have had any knowledge.
    5. Bills and notes, § 434

      —when evidence inadmissible to show illegal consideration. In an action on. a promissory note, dated 1906 and indorsed in blank, brought by the holder thereof, where the defense is that it was given to the payee in settlement of differences in trades on the Board of Trade, evidence that the maker had similar transactions with other members of the Board of Trade about 1901 is inadmissible as being too remote.
    6. Bills and notes, § 434

      —when evidence inadmissible to show illegal consideration. Evidence in an action on a promissory note examined and held inadmissible to show the illegality of the consideration.
    7. Evidence, § 107

      —when evidence of telephone conversation inadmissible. Evidence of a witness as to a telephone conversation which does not state the conversation he held nor his inability to recollect the words used, but merely undertakes to give his opinion of the general result of numerous conversations, is inadmissible, especially where he does not testify that the person with whom the telephone conversation was had, had a telephone nor give its number nor state that he heard the other person call that number and get it.
    8. Bills and notes, § 443

      —when evidence insufficient to show illegal consideration. Evidence in an action to recover on a promissory note, examined and held insufficient to show that the note was given in settlement of differences in trades on the Board of Trade.
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Andrew J. Redmond, Simon La Grou and George Bedford, for appellant.
    Cornelius Reardon, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On November 15, 1907, Mark Bates filed a claim in the County Court of Grundy county against the estate of Thomas M. Cronin, deceased, based upon a promissory note dated August 3, 1906, for the principal sum of $3,832.25, for value received, signed “Cronin Bros.” and “T. M. Cronin,” payable to the order of Doyle Brothers and by them indorsed in blank. Two payments of $100 each were indorsed upon said note. On July 15, 1908, said claim was allowed in the sum of $3,770.29 as of the seventh class. The executor appealed to the Circuit Court. In March, 1910, there was a jury trial and the jury disagreed. In October, 1914, upon another jury trial, there was a verdict for defendant. A motion by plaintiff for a new trial was denied, the estate had a judgment for costs and plaintiff below appeals.

Appellant introduced the note in evidence and proved that the signature, “T. M. Cronin” thereto was the genuine signature of Thomas M. Cronin, deceased. This made a case for plaintiff. There was a firm of Cronin Brothers in the hardware business at Morris, composed of Daniel J. and Thomas M. Cronin. Daniel J. Cronin died June 5,1903. Thomas continued the business and apparently in the name of Cronin Brothers until he died, on July 4, 1907. Doyle Brothers was a Chicago firm, dealing in grain on the Board of Trade, and had done business for Cronin Brothers in 1905 and 1906. The sole defense interposed to this note is that it was given-in settlement of differences in trades on the Board of Trade. It is claimed that the note is void and therefore not collectible in the hands of Bates (who must be assumed to be an innocent purchaser for value before maturity), under section 131 of the Criminal Code. The effect of the statute just cited is thus stated in Schneider v. Turner, 130 Ill. 28: “All contracts for the purchase and sale of property with the tinderstanding or agreement of the parties (whether that agreement is expressed on the face of the contract or exists by secret understanding) that the property is not to be delivered or accepted, but the contract satisfied by an adjustment of the difference between the contract and market prices, are mere wagers, or gambling contracts, and void.” The burden is on the defense to establish such a defense, and the rights of a bona fide holder of such paper, who is not shown to be connected in any way with the immorality alleged to be involved in the transaction, cannot be cut off by mere surmise or conjecture, but there must be some substantial proof of the facts constituting the alleged defense. Bank of Montreal v. Griffin, 154 Ill. App. 616.

The defense called Fred J. Blasingham, who testified, over objections by appellant, that he had represented several Chicago parties who dealt upon the Board of Trade and that Cronin had various deals with said parties through him and in no case was any grain ever delivered in his dealings with Cronin, but the transactions were closed by the payment of the profit or loss. He named five different Board of Trade firms for whom he had done that kind of business. Doyle Brothers were not named by him, and he did not profess to know anything about dealings between Cronin or Cronin Brothers and Doyle Brothers. It was not shown that Doyle Brothers had any knowledge of those dealings. It may be that under the authorities, if the evidence had shown that Doyle Brothers had had transactions in grain with Cronin or Cronin Brothers and that they were settled by payment of differences and that Doyle Brothers intended, when the purchases or sales were made, that they should be so settled, and that these transactions were included in this note sued upon, perhaps the intent of Cronin or Cronin Brothers that the trades should be so settled could be shown by evidence of this kind. But all these elements are absent from the proof in this case. This proof was of transactions with which Doyle Brothers were not connected and of which they were not shown to have had any knowledge. As the record stands, this proof was clearly incompetent. It presented an immaterial issue. It was calculated to mislead the jury. Appellant could not be expected to anticipate and be prepared to meet that case. If it was competent, appellant would have had a right to go into the dealings of Cronin or Cronin Brothers with all those Chicago firms and to show that the profits or losses were not so settled and that the parties did not so intend when the trades were made, and this would have been trying a case not before the court. Appellee called Abel D. Osman, who testified, over objections by appellant, that from 1900 to 1906, he was a member of the Board of Trade of Chicago and associated with five commission houses named, and that Cronin dealt with them about 1901 and bought and sold grain on margins and the trades were settled by the payment of differences. Doyle Brothers were not named by him nor was it shown that they knew anything about any of said dealings. For the reasons already stated, this evidence was incompetent and misleading. It was also too remote.

Appellee called James B. McCann, an undertaker, who testified over objections by appellant, to a conversation he heard prior to 1903 between Daniel J. Cronin and one of the Doyle Brothers, which seems to us too remote and not shown to have any relation whatever with the dealings, if any, included in this note. He was also permitted to say that he did not know of any dealings between Cronin and Doyle Brothers except in the buying and selling of grain, and he was allowed to state how the deals were settled by the payment of differences although he did not show that he knew that of his own knowledge or from any information obtained from Doyle Brothers. All of this was incompetent. He was also permitted to testify, over objection, that he thought he was familiar enough with Cronin’s affairs to know if Cronin had any other deals with Doyle Brothers. This opinion that he thought, if there had been other deals between Cronin and Doyle Brothers, he would have known of it was incompetent. He should have stated what his relations with Cronin were and what facts placed him in a position to know of Cronin’s dealings with Doyle Brothers, and it would then have been competent for him to testify that he did not know of any such dealings in relation to buying and selling grain except such as were settled by the payment of differences, and it should have been left to the jury to decide whether or not he was sufficiently familiar with Cronin’s affairs to have known if there, had been other dealings. He was permitted to decide that which should have been left to the jury. Illinois Cent. R. Co. v. People, 143 Ill. 434; Hellyer v. People, 186 Ill. 550; Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Kellyville Coal Co. v. Strine, 217 Ill. 516; Yarber v. Chicago & A. Ry. Co., 235 Ill. 589; Springfield & N. E. Traction Co. v. Warrick, 249 Ill. 470; Hoffman v. Ernest Tossetti Brewing Co., 257 Ill. 185.

Daniel Gr. Cronin testified in behalf of the estate that he was the executor of the estate; that he was employed in the store of Thomas M. Cronin and succeeded him in the hardware business; that he found among his uncle’s papers a statement from Doyle Brothers, which he produced, dated January 25, 1906, relating to transactions on and before that date. He testified that the deals of his uncle with Doyle Brothers in the summer of 1906 amounted to several thousand bushels and that he gained that information from said statement which, of course, was impossible. He was allowed to tell of various telephone conversations that his uncle had with some one whom he understood to be Doyle Brothers. The question of the competency or incompetency of conversations over a telephone has been discussed by the Supreme Court of this state in Miles v. Andrews, 153 Ill. 262; Fitzgerald v. Benner, 219 Ill. 485; and Godair v. Ham Nat. Bank, 225 Ill. 572. The same subject has been treated by this court in Rock Island & P. Ry. Co. v. Potter, 36 Ill. App. 590; Snively v. Colburn, 78 Ill. App. 93; Galt v. Woliver, 103 Ill. App. 71; Rogers Grain Co. v. Tanton, 136 Ill. App. 533; Pumphrey v. Giggey, 150 Ill. App. 473; Wicks v. Wheeler, 157 Ill. App. 578; and Tripp v. Rockford Elec. Co., 186 Ill. App. 379. We also call attention to the views expressed by the Appellate Court for the first district in Rueckheim Brothers v. Servis Ice Cream & Candy Co., 146 Ill. App. 607, and Gallagher v. Singer Sewing Machine Co., 177 Ill. App. 198. There are some Appellate Court decisions in this State not in harmony with the foregoing, but we must regard them as overruled. It must be considered as established for this State that, if a person places himself in connection with a telephone system through an instrument in his office, he invites communications in relation to his business over such telephone, and that conversations so held are admissible in evidence wherever a personal interview by a customer with an unknown clerk in an ordinary shop would be admissible in relation to the business there carried on, and this without an identification of the voice at the telephone. If the witness had testified that Doyle Brothers had a telephone and its number, that he heard his uncle call that number and get it, and heard any particular conversation following by his uncle with some unknown person purporting to answer the telephone and concerning business dealings between his uncle and Doyle Brothers, he' would have been competent to testify to so much of the conversation as he heard, and if he could not give the exact words of the conversation, but remembered the substance, he would be permitted to testify to that. This witness did not testify that Doyle Brothers had a telephone, that he knew its number or that he heard his uncle call for that number. All that he testified was that he assumed his uncle was talking with some one in the office of Doyle Brothers. For all that his testimony shows, it may have been with some one of the commission houses named by the witnesses Blasingham and Osman. He did not state the conversation he heard. He did not state that he was unable to recollect the words. He did not separate one conversation from another. He merely undertook to give his opinion of the general result of numerous conversations which he heard. We are of opinion that this evidence as given was incompetent. With this evidence excluded there is practically nothing in this record to show that this note was given in a settlement of differences growing out of gambling in grain.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Patrick Moran, Appellee, v. Florence A. Grim, Appellant.
    Gen. No. 6,086.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Patrick Moran, plaintiff, against Florence A. Grim, defendant, to recover for the breach of a real estate contract. From a verdict and judgment for plaintiff for $105, defendant appeals.
    By the contract which was in writing, plaintiff was to convey to defendant by warranty deed, free of all incumbrance, certain real estate and was to pay her $250, and defendant was to convey to plaintiff by warranty deed, free of all incumbrance, certain other real estate, and the contract was to be carried into effect on February 15, 1914. Plaintiff brought suit before that date. It did not appear that he tendered to defendant a warranty deed or $250, nor that he had that sum ready to pay to her.
    Abstract of the Decision.
    1. Contracts, § 339

      —when action for breach of contract for exchange of realty not maintainable. An action cannot be maintained before time for plaintiff’s performance to recover for the breach of a contract to exchange realty, where it does not appear that plaintiff offered or was ready to perform his part nor that he was excused from performance by the language and conduct of the other party acting personally or through an agent.
    2. Contracts, § 390

      —when excuse from performance a question for jury. In an action for the breach of a contract for the exchange of realty, brought before the time plaintiff was to have performed his part of the contract, where there was no proof of any tender or readiness of performance by plaintiff, the question whether performance by him had been excused by defendant’s language or conduct is for the jury.
    3. Damages, § 56

      —what proper measure of damages in action for breach of contract. In an action to recover for the breach of a contract for the exchange of realty, the measure of damages is the excess in value, at the time of the breach, of the property which plaintiff was to receive over that which he was to convey.
    4. Damages, § 200

      —when instruction as to measure of damages for breach improper. In an action to recover for the breach of a contract for the exchange of realty, where there is no proof from which the jury can estimate the excess in value, at the time of the breach, of the property which plaintiff was to receive over the property which he was to convey, it is error to authorize the jury, if they find for plaintiff, to assess such damages as they believe from the evidence plaintiff had sustained.

      John Gr. Petteys, for appellant.
    Frank L. Flood, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.